Not a Suicide Pact

Horace Cooper
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Posted: Dec 21, 2005 12:05 AM

Months after Sept. 11, President Bush secretly authorized the National Security Agency to monitor electronic conversations involving Americans and others inside the United States purportedly to search for evidence of terrorist activity without using court-approved warrants ordinarily required for domestic spying. The Bush administration views the operation as necessary to monitor communications that may disclose threats to the United States. The president’s claim of legal authority rests on the Constitution and the collective statutes passed by Congress authorizing him to track down and disrupt the terrorist network Al Qaeda.

Critics charge that this action is illegal and a violation of our civil liberties. And furthermore, since Congress has the power to declare war, they ask how the president can claim authority to order electronic surveillance or anything else under the aegis of the “war on terror?”

It is true that Congress has authority in national security matters as Article I of the Constitution makes clear. Congress is given explicit authority “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”  Its authority also includes funding and organizing the military. Furthermore, Congress also enjoys other international authority, such as legislating international commerce, punishing piracy and enacting immigration laws.   

This authority, however, is not exclusive; and moreover, it’s not even the most powerful grant of national security authority in the Constitution. You see, Article II of the U.S. Constitution vests in the presidency the commander-in-chief power and all of the other executive power of the United States.

There is a reason the U.S. president is the single most powerful executive of any democratic government. The combination of his foreign relations powers, his commander-in-chief powers, his emergency powers and his executive order authority makes him ideally suited to effectuate America’s national security interests. And war-making is the quintessential executive responsibility. 

By its nature and design, the executive power is more agile and responsive. By its nature and design the legislature is deliberative and rigid.

Both logic and history dictate that the executive’s primacy in national security matters be recognized. Is it any wonder that Congress has only used its formal war-making power five times, yet U.S. presidents have ordered military forces into combat zones more than 100 times? And in the latter part of the 20th century, presidents have significantly expanded this behavior. For two reasons: our ability to recognize national security threats is greater now, as the actual threats are greater. To argue in the face of this reality that the response to this challenge must be handled primarily by the legislature or even the judiciary is to unilaterally disarm ourselves against a clear and gathering threat.    

Even the Supreme Court recognizes that it isn’t capable of taking the lead on national security matters. Twice the Supreme Court was given an opportunity to place limits on the president’s national security authority to engage in electronic surveillance, and twice the Court has declined to do so. In each instance, the Court explicitly stated that their rulings on the 4th Amendment did not apply to cases involving national security.  

No, Congress by its design and make up is ill-suited for taking the lead role in this task. And to leave this authority in the hands of the courts would be the quintessential example of a “constitutional suicide pact.”

Ironically, many historians credit the phrase “The Constitution is not a suicide pact” to the Supreme Court. The author of this phrase is none other than that uber-executive Abraham Lincoln. Historian James G. Randall acknowledges, “No president has carried the power of presidential edict and executive order (independently of Congress) so far as [Lincoln] did.”

Remember President Lincoln? While many may not be aware, he’s the father of the military tribunal designed to try enemy combatants. He did so, arguing that they had the capacity to act quickly, to gather intelligence through interrogation, and to prevent confidential life-saving information from becoming public.  It was also President Lincoln who declared martial law and who suspended the Writ of Habeas Corpus. 

Just as all of his actions must be viewed in the context of the Civil War, America is also today in the midst of a war – the “War on Terror.”  This war brings with it challenges that only the executive is fully capable of addressing. It is in this context that President Bush’s executive order authorizing electronic surveillance within the United States by the NSA must be considered. 

Critics ignore these facts and instead argue that the order was either unlawful, unauthorized or even illegal. FISA, which is the Foreign Intelligence Surveillance Act, establishes legal rules for "foreign intelligence" surveillance separate from ordinary law enforcement surveillance. The president’s executive order has been invoked only a handful of times since 2002 and it always involved communications of terrorists or associates of terrorists. But those who would use FISA as the basis for claiming that the law has been violated should look elsewhere.

The act itself claims that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.”

And bolstering the president’s claims, the Congress explicitly gave the president broad authority to engage in counter-terrorism activities with a series of legislative acts including the Patriot Act and the Iraq War Resolution. 

The Iraq War resolution gives the President the authority to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” And the Patriot Act, among many significant changes, included enhanced FISA surveillance of foreign nationals.  Combined with his constitutional powers, the president clearly has the legal authority to carry out this surveillance.

As Alexander Hamilton wisely noted, “The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.” That one person is the President of the United States.