No Branch May Usurp Another's Power
By Alan Nathan
The Washington Examiner | February 16, 2006

The rhetorical wars surrounding President Bush’s warrantless National Security Agency surveillance of terrorist suspects have exposed a frightening want of knowledge and reasoning skills on the part of both supporters and detractors in that they’re mixing up the arguments of legality with those of consensus. It’s like challenging your grandmother’s will because you were left out of it — you may rightly think she did you wrong, but you’re wrong in thinking that she didn’t have the right.

Sen. Carl Levin, D-Mich., has said the president, “… can’t just simply use the necessity to move quickly as an excuse to bypass the law which we put in place, which is the true check on the executive power, the laws that Congress passed, including the FISA law.”

U.S. Attorney General Alberto Gonzales countered with, “We have to remember that the Foreign Intelligence Surveillance Act was created in 1978, and technologies have changed dramatically.”

What these gentlemen are forgetting is that all laws, including FISA, are non-binding to the extent that they cross the separation of powers guaranteed to each branch.

Let us concern ourselves only with the law and not the politics. In two cases, The United States v. Troung Dinh Hung 1980 (heard by the Fourth Circuit Court of Appeals) and In:Re Sealed Case 2002 (heard by the FISA Appellate Court), both courts agreed the president has the “inherent authority” to conduct warrantless wiretaps for foreign intelligence gathering purposes, including domestic partners to foreign agents.

Ironically, the only reason why branches are capable of placing “checks and balances” on one another is because each has certain absolute powers beyond the reach of the other two. Just as Congress and the Judiciary have the obligation to protect their separated powers, so too does the Executive Branch. Any power grabbing committed would be a hostile act against the people.

A perfect example is the process necessary for placing a new justice on the Supreme Court. Congress and the Supreme Court cannot tell the president whom to nominate; the president and the Supreme Court cannot tell Congress whom they can reject or confirm; and, the president and Congress cannot tell that Supreme Court Justice how to rule once he or she is on the bench. These separations of powers are sacrosanct but no more so than any of the other “inherent authorities” allocated to each branch respectively. This includes the president’s commander in chief role under Article 2 Section 2 of the Constitution.

However, Sen. Arlen Specter, R-Pa., is joining many Democrats in saying the president’s warrantless NSA Spying is covered neither by the Constitution nor by the Sept. 14, 2001, war resolution. But if that’s true, why does that resolution’s fifth “Whereas” introductory statement read, “the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and then adds in Section II (a), “That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

A constitutional authority doesn’t have to be specifically stated if it’s inherently a part of another already specifically stated umbrella authority. It doesn’t state that in time of war the president has the authority to attack enemy units, disrupt their communications or destroy their bases. But we know that these actions are part of his “inherent authority” as commander in chief.

And spare me the Nixon wiretap analogies of the 1970s. Similarities do not dissimilarities erase. You must have more of the former than the latter in order to sustain any analogy — otherwise it wilts under the light of scrutiny. Tricky Dicky was after his own political enemies. Bush is after the enemy whom our country ordered him to pursue!



Alan Nathan, combative centrist, columnist, speaker and the nationally syndicated host of "Battle Line With Alan Nathan" on the Radio America Network.

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