In June a Justice Department attorney, Anthony J. Coppolino, told U.S. District Judge Anna Diggs Taylor the National Security Agency's warrantless surveillance of international communications involving people in the U.S. is both constitutional and necessary to protect national security. In fact, he said, it is constitutional because it is necessary to protect national security, which puts it squarely within the president's authority as commander in chief of the armed forces waging the War on Terror. But Coppolino said he could not elaborate further because "the evidence that we need to demonstrate to you that it is lawful cannot be disclosed without that process itself causing grave harm to United States national security."
In other words, "I could tell you why it's legal, but then I'd have to kill you." It was a remarkable moment that nicely illustrated the Bush administration's position on executive power: The president has inherent authority to do whatever he considers necessary to fight terrorism, regardless of what Congress or the courts might say. Even talking about anti-terrorism measures, let alone seeking permission for them, puts all of us at risk. Secrecy thus becomes its own justification, because if the administration refuses to talk about it, it must be crucial to national security, and if it's crucial to national security it must be legal.
Judge Taylor did not buy this argument, ruling in August that the NSA's surveillance program violates the Foreign Intelligence Surveillance Act and the Fourth Amendment. But it's an open question whether her decision will be upheld on appeal. Even if it is, the Bush administration's sweeping claim of authority may yet lead to a compromise that will undermine civil liberties and the separation of powers. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), one of the few Republicans in Congress who seemed genuinely offended by the president's assertion that he can ignore the law when it restricts his ability to combat terrorism, already has introduced a bill that would officially authorize surveillance that goes well beyond what the Bush administration has acknowledged, with little or no judicial oversight.
The Bush administration's strategy is to stake out a position that leaves no room for Congress or the courts on issues such as surveillance, torture, detention of "enemy combatants," and the trial of suspected terrorists. This makes the other branches willing to settle for far less say than they might have claimed if the White House had taken a more collaborative approach.
So the administration says, in effect, we'll torture people if we think it's appropriate, prompting Congress to pass a (redundant) law banning torture, which the president signs while saying he does not necessarily feel bound to obey it. Bush claims he can indefinitely detain anyone he unilaterally identifies as an "enemy combatant," without charge, trial, or judicial review of any kind, and the courts (prejudging the issue by the very act of considering it) say, "Not so fast. We insist on our prerogative to decide whether we get to decide." Ultimately the Supreme Court says U.S. citizens detained as enemy combatants must have a chance to contest their status before some sort of "neutral decisonmaker." Donald Rumsfeld presumably would not qualify, but that still leaves plenty of other options that fall far short of our usual concept of due process. Similarly, the Supreme Court nixes the administration's newfangled military commissions for Guantanamo detainees because they were not authorized by Congress, but Congress, its authority vindicated, may end up blessing the current rules, which seem designed mainly to ensure conviction.
Even with ordinary, finite wars, the habit of yielding to presidential authority tends to persist for a while. With a war that has been defined in such a way that it will never end, we have a perpetual state of emergency that encourages the steady ceding of power to the executive branch, no matter what party happens to occupy it. I'm not sure Republicans have thought through all the implications of that.