Attorney General Alberto Gonzales says Congress approved the National Security Agency's warrantless domestic wiretaps when it authorized a military response to the September 11 terrorist attacks. He also has said President Bush later decided not to ask for congressional approval of the surveillance program (approval he supposedly already had) because Congress probably would have said no (even though, by Gonzales' account, it already had said yes).
Now the Bush administration is pursuing legislation suggested by Sen. Mike DeWine (R-Ohio) that would provide the congressional blessing it says it always had yet never sought. But since the president apparently thinks he has unilateral authority to do whatever he deems necessary to prevent terrorism, any law that aims to regulate his conduct in this area may not accomplish much.
The administration claims the post-9/11 Authorization for Use of Military Force (AUMF) amended the Foreign Intelligence Surveillance Act, which requires warrants to monitor communications of people within the U.S. The legislators who voted for the AUMF clearly did not think they were saying anything about wiretaps, since they later explicitly loosened the rules for surveillance in ways that would make no sense if they already had granted the exemption discerned by Gonzales.
The administration tries to bolster its argument by citing a 2004 decision in which the U.S. Supreme Court recognized the detention of prisoners captured on the battlefield as "a fundamental incident of waging war" implicitly authorized by the AUMF. But while it's hard to imagine how U.S. forces could have attacked Al Qaeda and its Taliban allies in Afghanistan without taking prisoners, monitoring the international e-mail and telephone calls of Americans on U.S. soil—even Americans suspected of links to Al Qaeda—is not a necessary part of the military action approved by Congress.
The main purpose of waving the AUMF is to distract attention from the president's real argument, which is that the Constitution empowers him as commander-in-chief of the armed forces to fight terrorism however he sees fit, regardless of what Congress says. That claim conflicts with the plain language of the Constitution, which empowers Congress to declare war and to regulate the armed forces.
A law that simply condones what the NSA has been doing without congressional approval for the last four years will merely paper over this conflict. Members of Congress will tell themselves they have successfully asserted their authority, while the president will see the law as recognition of his.
In a CBS News interview last month, Bob Schieffer asked Bush, "Do you believe there's anything a president cannot do if he…considers it necessary in an emergency like this?" Bush said "there are clear red lines" and offered two examples: The president may not "order torture," and he may not "order the assassination of a leader of another country with which we're not at war."
Those are telling examples. When Bush signed the 2005 law banning torture of detainees, he said he would interpret it "in a manner consistent with the constitutional authority of the President…as Commander in Chief," indicating he might not obey it in all circumstances. And assassination is prohibited not by an act of Congress but by an executive order the president can change or revoke at will.
In any case, a good follow-up question would have been, "Is that it?" If the president was offering an exhaustive list of what he won't do in the name of fighting terrorism, it's hard to see why Congress is bothering to renew the PATRIOT Act.
The administration's defense of the NSA's wiretaps suggests the PATRIOT Act's electronic surveillance provisions are superfluous at best. And if Bush thinks he has the authority to quietly disregard statutory restrictions on wiretaps, how can we be sure his administration is punctiliously following the legal requirements for seizing records or conducting physical searches? The president's secret exercise of undefined powers renders "clear red lines" invisible.