And if, as some administration supporters say, amending the 1978 act to meet today's exigencies would have given to America's enemies dangerous information about our capabilities and intentions, surely the 1978 act and the Patriot Act were both informative. Intelligence professionals reportedly say that the behavior of suspected terrorists has changed since Dec. 16, when The New York Times revealed the NSA surveillance. But surely America's enemies have assumed that our technologically sophisticated nation has been trying, in ways known and unknown, to eavesdrop on them.
Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the ``sole organ for the nation in foreign affairs.'' That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces and make laws ``necessary and proper'' for the execution of all presidential powers. Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to ``take care that the laws be faithfully executed.''
The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration. This faux toughness is folly, given that the Supreme Court, when rejecting President Truman's claim that his inherent powers as commander in chief allowed him to seize steel mills during the Korean War, held that presidential authority is weakest when it clashes with Congress.
Immediately after 9/11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the 9/11 terrorists made.
But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.
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