Jacob Sullum

Members of Congress have been known to vote for legislation they haven't read. But is it possible Congress authorized warrantless wiretaps without realizing it?

 That's what President Bush implies when he defends the National Security Agency's warrantless eavesdropping on Americans' phone calls and e-mail messages by citing the Authorization for Use of Military Force that Congress approved three days after the Sept. 11 terrorist attacks. More fundamentally, Bush seems to believe the Constitution gives him the power to authorize this surveillance, no matter what Congress or the courts might have to say about it.

 Even people who have complete confidence in this president's good faith and good judgment should worry about his sweeping assertion of executive power, which has implications for his successors. In areas such as military tribunals, detention of "enemy combatants," and administrative subpoenas, Bush has shown an alarming tendency to cut the legislative and judicial branches out of decisions about how to prosecute a war on terrorism that will continue long after he leaves office. This combination of unilateralism with a perpetual state of emergency is a recipe for tyranny.

 The resolution Congress passed after Sept. 11 authorized the president to "use all necessary and appropriate force" against the nations, organizations and individuals who carried out the attacks or harbored those responsible. The relevant section is entitled "Authorization for Use of United States Armed Forces." It says nothing about the NSA or wiretaps.

 Sen. Russell Feingold, D-Wis., has declared that "nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror ... that this was an authorization to allow wiretapping against the law of the United States." But according to the Bush administration, it does not really matter what Congress intended, because the president's powers as commander in chief of the armed forces include the authority to override the Foreign Intelligence Surveillance Act (FISA) and any other statute that bars him from doing what he thinks is necessary to fight terrorism.

 In his Dec. 19 press conference, Bush emphasized that the NSA's surveillance covers only people with "known links" to terrorist organizations. Known to whom? The point of FISA's warrant requirement is to have someone outside the executive branch review that assessment.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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