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Did Congress Approve Domestic Spying?

Wednesday, December 21, 2005
The second defense of Bush & Co. is that Congress authorized domestic spying when it voted the President the authority to use all necessary force in response to 9/11.

There are a number of responses to this argument. The first would be that Congress never declared war, therefore the President cannot claim so-called "wartime powers." It might be suggested that a declaration of war is not necessary - the President had war powers during Vietnam and Korea and Congress never declared war then either. It would be my position that Congress should have declared war, but one need not take so forceful a stance. Kevin Drum correctly notes that "wartime" has been extended to mean the entirety of the 20th century with no end in sight. If "wartime" means any time a nation is under threat, then nations have been permanently at war since the beginning of time. And the idea that the President has such powers during times of international threat is proved false by Congress' rejection of unlimited domestic spying during the Cold War, when we were under a much greater threat.

There is also a false dichotomy at work. There is a common assumption that civil liberties must be curtailed during time of war. I simply reject this proposition. In fact, times of stress are precisely the time when a strict protection of civil liberties is most important. No one cares about the easy cases of uncontroversial speech in placid times. The real meaning of civil liberties comes to the fore when people say unpopular things during times of crisis. If we don't protect them, then civil liberties have for all intents and purposes been abrogated.

I don't think the Congress had any intention of suspending civil liberties in response to 9/11. Even if one adopted the (bizarre) interpretation that a vote of "all necessary force" extends so far as unsupervised domestic spying, this interpretation is at best an implication of the Congressional resolution. During the Cold War, Congress explicitly rejected Presidential pretensions to unlimited discretion in this matter. It is a very strange kind of legal reasoning to say that an implicit interpretation overrides an explicit statute. But then the Bushies never really made good lawyers.

But let's assume that Congress did vote to expand the President's intelligence-gathering powers. They never would have given him the power to do so without any judicial supervision. Domestic spying in and of itself is bad enough, but allowing the executive to do so without any kind of check at all - warrants, informing Congress, whatever - is completely anathema to any reasonable notion of civil liberties or the separation of powers.

Finally, even if Congress did vote this kind of authority, it wouldn't matter - because it's unconstitutional. As Ken Camp commented about my last post, it is a violation of the 4th amendment. It says:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

This amendment has always been interpreted to mean that the judiciary must carefully review intelligence-gathering operations against Americans. So even if Congress wanted to sacrifice American liberties at the altar of Presidential prerogative - they can't.

The President should be censured for exceeding his constitutional mandate and violating the rights of citizens. And if he persists in doing so after the Courts have said he can't (which I expect), then he must be removed from office as a man who not only won't defend the Constitution but who is attempting to destroy it.
Posted by Arbitrista @ 7:36 AM
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