When challenged on the White House’s broad, unusual and frankly scary expansion of presidential powers, administration officials said they did it because Congress said they could. Congress seems surprised to hear that.
The White House has asserted the president’s right to imprison indefinitely and secretly and even to treat prisoners in ways that reasonable people would construe as torture. The president’s lawyers say these powers were implicit in the post-9/11 congressional resolution authorizing him to wage war on al Qaeda.
Last week it was revealed that President Bush had secretly authorized the National Security Agency, which is supposed to be limited to overseas electronic intelligence-gathering, to eavesdrop on the international telephone calls and e-mails of Americans and others resident in the United States _ and to do so without obtaining a warrant.
There is already a highly secret procedure for obtaining eavesdropping warrants under the Foreign Intelligence Surveillance Act (FISA). In emergencies, the warrants can be issued within hours or even waived for up to three days. The administration felt it had the authority to ignore this particular law because of the post-9/11 resolution. The president’s legal advisers wrote an opinion saying that this was OK just as they as they had with torture, detention without trial and waiving the Geneva Convention.
Attorney General Alberto Gonzales, speaking shortly before the president’s press conference, conceded that nothing in the resolution authorizes electronic eavesdropping on U.S. residents, but said doing so was within the president’s war powers.
“This is not a backdoor approach,” he said. “We believe Congress has authorized this kind of surveillance.” The reaction to the disclosure on Capitol Hill indicates that this came as news to members of Congress, most of whom had been kept in the dark about the eavesdropping.
Why not, Gonzales was asked, simply get Congress to amend FISA? Because, he said, in discussing it with “certain members” of Congress “we were advised that that would be difficult, if not impossible.” In other words, Congress wouldn’t do it and a specific rejection would put a check on the broad presidential powers Bush claims. It is significant that the administration also did not include warrantless eavesdropping by the NSA in the renewal of the Patriot Act.
The eavesdropping by the NSA, where targets are chosen by shift supervisors, is overseen by no judge, court or senior Justice Department official. It may be a valuable tool in the war on terrorism; it might also be illegal and unconstitutional.
It is Congress’ responsibility to say yea or nay and, if yea, to lay down the specific ground rules, oversight and checks and balances to protect Americans’ privacy and civil liberties.
Give the government a power, and it will use it and likely eventually misuse it.
(Contact Dale McFeatters at McFeattersD(at)SHNS.com)