WASHINGTON -- The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could?
Presumably the argument is that the president's implied powers as commander in chief, particularly with the nation under attack and some of the enemy within the gates, are not limited by statutes. A classified legal brief probably makes an argument akin to one Attorney General John Ashcroft made in 2002: ``The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.''
Perhaps the brief argues, as its author John Yoo -- now a professor of law at Berkeley, but then a deputy assistant attorney general -- argued 14 days after 9/11 in a memorandum on ``the president's constitutional authority to conduct military operations against terrorists and nations supporting them,'' that the president's constitutional power to take ``military actions'' is ``plenary.'' The Oxford English Dictionary defines ``plenary'' as ``complete, entire, perfect, not deficient in any element or respect.''
The brief should be declassified and debated, beginning with this question: Who decides which tactics -- e.g., domestic surveillance -- should be considered part of taking ``military actions''?
Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies utilizing new technologies such as cell phones and the Internet. In September 2001 the president surely had sound reasons for desiring the surveillance capabilities at issue.
But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president's plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that ``the president has authority under the Constitution to take action to deter and prevent acts of international terrorism,'' and had authorized ``all necessary and appropriate force'' against those involved in 9/11 or threatening future attacks.
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