- The Washington Times - Sunday, February 19, 2006

Senate Judiciary Committee hearings on NSA’s “Terrorist Surveillance Program” began earlier this month with the attorney general’s testimony and a lot of attention on FISA — the Foreign Intelligence Surveillance Act. Specifically, whether it was complied with, whether it applies at all, and — in either case — whether it should be amended.

All very interesting issues, but most likely irrelevant: It isn’t that “fixing FISA” may not be a good idea, or not even that the “best” solutions to the most complex problems of executive-congressional tension are achieved by comprehensive statutes such as FISA — it’s that Washington is not presently capable of this level of problem-solving.

Even worse, it’s an election year, and despite a State of the Union call from the president for a better dialogue with Congress, the town will continue to “operate” this way until the next presidential election — this because the divisions are so deep between the White House and its entrenched opponents in the Congress. Whether this state of affairs is truly representative of America is almost beside the point — it’s a current fact of political life. So, here’s what most any president, Democrat or Republican, would do in the present circumstances:

c Issue a series of executive orders, some with the “force and effect of law,” that pertain to the running of the war on terrorism and let the orders serve to implement the president’s powers as commander in chief (CINC) under Article II of the Constitution.

c Keep the appropriate members and committees of Congress “fully and currently informed” on intelligence and national security matters, even “consulting” with them on the more substantial matters. This kind of liaison is required by current law in a number of areas, but could easily be coordinated and managed more efficiently by the White House.

Congress will absolutely hate this, and certain factions there will probably call for the impeachment of the president — partially to “get even” for the Clinton impeachment — but mostly because they will be rendered increasingly irrelevant in some of the more important issues of the day while the president takes center stage in the war on terror, as he increasingly has.

However, critics already argue that Congress has made itself irrelevant by its radically polarized views on a whole set of national security issues, causing, for example, a series of very senior recess appointments to be made at the Department of Defense. The practical effect of this is to exclude the Senate from some of its most traditional and significant oversight functions.

At the root of this political struggle is the proposition that Congress controls and limits the war and national security powers of the president. Congress believes this as an immutable fact, but the president— any president — just as strongly believes that the core of presidential war and national security powers come from the Constitution itself and not the Congress. While neither is true as an exclusive proposition, both are true as part of a comprehensive solution to complex problems, such as the extent and limits of government authority to collect national security related information, e.g., the “terrorist surveillance program.”

However, there’s a very important difference: The Congress can only enact law over the president’s veto with a two-thirds majority, while the president can effectively “make law” by executive order, especially if he is careful to confine it to implementing his constitutional powers as commander in chief.

Accordingly, here’s what we can expect to see coming from the president’s desk throughout the rest of his term in office:

• A comprehensive new executive order on the organization, functions and authorities of the various agencies and departments within the intelligence community.

• A new executive order on the organization, functions and authorities of the NSA; the new director of National Intelligence (DNI) will not likely have a prominent substantive role in this new structure, as NSA “signals intelligence” (SIGINT) must continue to be a role primarily associated with war-fighting. Hence it will be squarely within the constitutional authority of the president as CINC, acting through the Secretary of Defense.

• New directives addressing the careful integration of vast amounts of terrorism threat-relevant information that has traditionally not been defined or considered as “intelligence.”

• An entirely new regulatory structure for the president’s control and classification of national security related information, including new categorical definitions, which will probably move the U.S. closer to the “official secrets” approach in the United Kingdom. This because the intelligence community was badly stung in 2005 by politically-motivated disclosures of sensitive information.

So, while the talking heads, think tanks, commissions and institutes will continue to opine about “what Congress should do” in the war on terror, such discussions may not have much relevance to what actually happens for the indefinite future. And, while the president may try and extend an increased consultative role to Congress, they may not want — or be able — to play their important role as equal partners in the promulgation of wartime law and policy.

Not the end of the world for our democracy, but certainly tying one arm behind our backs for a while.

Daniel Gallington is a senior fellow at the Potomac institute for policy studies.


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