The year is young, but I suspect that when it’s over this piece by Craig Crawford about the NSA intercept program will be among the sorriest columns of the year. Crawford’s premise is that President Bush is running roughshod over the Constitution. His evidence is Bush’s decision not to seek warrants from the FISA court in connection with certain surveillance, coupled with the arguments Bush makes in defense of this decision.
As to FISA, Crawford begins from a false premise. He asserts that Bush has “admitted sidestepping” the Act. In truth, Bush has admitted no such thing. While in limited circumstances the administration has bypassed the FISA courts, it does not admit to sidestepping the Act. Rather it has maintained, in a detailed memo to Congress, that these searches fall within an exception to the Act (the administration argues, in the alternative, that if the program violated FISA it would still be within his lawful authority). Crawford makes no effort to engage the merits of the administration’s statutory argument; instead he misrepresents its position.
Crawford also fails to acknowledge the limited scope of the warrantless intercepts. As the president has said, the program is “limited to calls from outside the United States to calls within the United States. But they are of known — numbers of known al Qaeda members or affiliates.” As far as I’m aware, there is no evidence that the program extends beyond this situation, and Crawford certainly doesn’t provide any. Instead, ignoring the facts, he relies on a cartoonish portrayal of Bush as willing to countenance any assault on privacy in the name of national security. But a president with no regard for privacy when it stands in the way of security would also want to be able to listen to a much wider range of calls involving suspected terrorists without seeking court approval. Yet the president frequently seeks warrants from the FISA court, bypassing that court (as far as we know) only in the narrow circumstances described above.
Crawford’s attempt to discuss the Constitution is, if anything, more vacuous. Eschewing any analysis of the Constitution’s words, or of the case law, Crawford is content to assert that the administration’s claim of authority to conduct the intercepts notwithstanding FISA is at odds with strict constructionism. But that is true only if there is plain language in the Constitution that conflicts with the president’s claim of authority. None exists, so Crawford falls back on the notion that the Framers did not intend the president to have power he asserts here — the power to ignore legislation that restricts his ability to command the military. But Crawford presents no evidence of such lack of intent. The best he can do is to note that the Framers wanted the president’s power to be inferior to that of the British monarch. But the president can have immense authority when it comes to conducting a war or defending national security and still be inferior to King George III. Crawford’s final argument, that the legislative branch is established by Article I while the executive is “relegated” to Article II, is also laughable. The president’s powers are the president’s powers regardless of which Article lists them. Figuring out how far they extend, and how they blend with congressional power, is a difficult and serious task. If Crawford cannot undertake it with seriousness, he should stay out of the discussion or at least avoid the alarmist rhetoric.
Via Real Clear Politics
UPDATE by JOHN: The White House clarified today that Bush “meant to say calls going to and originating from the U.S. were being monitored.” Assuming that this merely means that calls coming into al Qaeda numbers were monitored as well as calls coming from those numbers, this makes no difference to any constitutional or statutory analysis.
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