One branch of government is so much more efficient than three

Jacob Sullum
Posted: Dec 21, 2005 12:05 AM

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.

 Bush said the need for speed in preventing terrorist attacks made it necessary to circumvent the Foreign Intelligence Surveillance Court, which operates in secret and has approved all but a handful of the warrant requests it has received since it was created. When a reporter asked why the government did not use the FISA provision that allows retroactive warrant approval in emergencies, Bush had no answer.

 Bush also emphasized that the NSA's warrantless surveillance includes only calls and messages between the United States and other countries, not purely domestic communications. When a reporter asked the rationale for that distinction, given the president's broad view of his own war powers, Bush had no answer.

 If FISA somehow prevents timely monitoring of terrorists, the appropriate response is to fix the law. Attorney General Alberto Gonzales told reporters, "We have had discussions with ... certain members of Congress as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

 Since the president thought Congress was not willing to change the law, he simply ignored it, although he was polite enough to let some legislators know he was ignoring it. The details of these briefings are a matter of dispute, but secretly telling a few members of Congress about a policy that cannot be publicly discussed clearly is not the same as seeking congressional authorization.

 When a reporter at the president's press conference referred to "the unchecked power of the executive," Bush scolded him. "I disagree with your assertion of unchecked power," he said. This is the message all Americans should be sending the president.