No Branch May Usurp Another's Power
By Alan Nathan
The Washington Examiner | February 16, 2006
The rhetorical wars surrounding President
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!