The Bush administration's claim that its pet warrantless wiretap program was implicitly authorized by Congress when it passed the Authorization for the Use of Military Force against al Qaeda was already absurd on its face: The Foreign Intelligence Surveillance Act (which Congress modified after the AUMF to give intelligence agencies more leeway) already has provisions detailing the limited additional powers the president gets in the event of a military conflict. Claiming that the AUMF created an exception to FISA is like arguing that we have to discard the Emergency Procedure because, dammit, it's an emergency! But George Will points out another, more pragmatic problem with this line of argument in his Washington Post column today. If Congress is led to believe that presidents may claim sweeping powers in the wake of any such authorization, in the future any Congressional green light on the use of military force, Will suggests, may fill as much shelf space as Remembrances of Things Past. Administration supporters are now playing an unseemly sort of political chicken with the legislator, saying, in effect: "Well, if you didn't mean to authorize it, defund the program now that it's underway—we dare you."
Will's suggestion that future authorizations of force "might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede" may be a bit fanciful, but there is a real danger here that future legislatures will be wary of granting a necessary inch, knowing that the president will feel at liberty to take a mile—and be well positioned politically to get away with it. That's not the kind of dynamic people properly concerned with our ability to respond nimbly to terrorists should be eager to set up.