The President Honoring His Oath

December 22, 2005

Are critics of President Bush’s electronic-surveillance practices concerned with the Constitution? Or are they just using any excuse they can find to accuse him of abusing his power?

If they are concerned with constitutional issues, why didn’t they object to President Clinton’s advocacy of warrantless searches — even for physical searches as opposed to electronic surveillance — for national security reasons? Other presidents have also defended the Commander in Chief’s inherent authority to conduct such searches.

But the critics are acting like the mere suggestion of a search without a warrant is tantamount to the establishment of a police state. What they don’t tell you is that the Fourth Amendment itself primarily guards against unreasonable searches and seizures. Courts have always recognized exceptions to the warrant requirement.

That warrants are not absolutely indispensable is also clear by the very terms of the Foreign Intelligence Surveillance Act itself, which expressly dispenses with the warrant requirement in certain defined circumstances. Some scholars maintain those exceptions apply to the president’s NSA surveillance of Al Qaeda, though the administration doesn’t appear to be relying on that position. Instead, President Bush finds his authority in the Constitution and in Congress’ de facto declaration of war following 9/11.

He is not challenging the validity of FISA but merely saying it does not limit his inherent constitutional authority as Commander in Chief under Article II to conduct such searches, when necessary, to protect national security. Congressional action, in other words, never trumps the Constitution.

But as for statutory authority, the president relies on Congress’ passing its declaration of war following 9/11 to give him the authority to “use all necessary and appropriate force” against the terrorist enemy. Warrantless surveillance of Al Qaeda operatives, President Bush argues, is within the meaning of “necessary and appropriate force.”

Some have objected that “necessary and appropriate force” cannot be construed to permit such surveillance of the enemy. There is no specific authorization for electronic surveillance in Congress’s “declaration,” and so Congress did not authorize it.

But as Attorney General Albert Gonzalez pointed out, the U.S. Supreme Court ruled in the Hamdi case that the government could detain an American citizen captured on the battlefield for the duration of the war even though Congress’ authorization to use force never mentions the word “detention.”

Detention, according to Justice O’Connor’s opinion, is a fundamental incident of waging war. And the NSA electronic surveillance of Al Qaeda, argues Gonzalez, is “even more a fundamental incident of war” than detention.

While reasonable people can debate whether President Bush is correct in his interpretation of the law, it is extreme to conclude that he deliberately violated the law or usurped authority with his NSA surveillance program.

The president made clear that he established his surveillance program only after studied advice of legal counsel. He also briefed members of Congress, from both parties, at least a dozen times on the program. And when the practice was publicized through a despicable, nation-damaging leak, President Bush did not deny engaging in the practice but heartily defended it.

The president’s critics would be well advised to understand the distinction between constitutional criminal procedure and wartime powers. In the situation of the NSA surveillance program, as well as a host of other wartime activities undertaken by the government, the critics want to confer full-blown constitutional rights on our enemy. President Bush was adamant that his surveillance is not targeting U.S. citizens but only members of Al Qaeda or those affiliated with or supporting it.

Thank God we have a president who is mindful of his dual and sometimes conflicting obligations of protecting our civil liberties and our national security. The absence of attacks on our soil and the absence of major civil-rights encroachments of U.S. citizens since 9/11 show that he has negotiated a finely tuned balance between the two concerns. The president’s critics, by contrast, seem to be concerned with civil liberties — for our wartime enemies no less — to the exclusion of national security concerns.

Seriously: Why do they always seem inclined to sympathize with the enemy?

The president reminds us that he took an oath to protect and defend the United States, and that is precisely what he is trying to do. His critics seem determined to handcuff him from honoring his oath in every way possible while simultaneously castigating him for not doing enough.

In the end, their concern is neither civil liberties nor national security but the personal destruction of a president dedicated to defending the United States of America and her citizens. In their pursuit to recapture power, all other interests must be sacrificed.