- The Washington Times - Wednesday, January 18, 2006

Sen. Arlen Specter, Pennsylvania Republican and chairman of the Senate Judiciary Committee, will hold hearings next month on the National Security Agency wiretap program, and has told Bush administration officials he believes they are on shaky legal ground. He has joined a group of Republicans and Democrats who have opposed the program disclosed to the New York Times by a former NSA employee.

Mr. Specter really meant, however, that the program — to be “legal” in his mind — had to be done pursuant to a enabling statute, hence pursuant to congressional authorization, hence pursuant to a matter within the likely purview of his committee.

The president, however, maintains he has the inherent authority to order the wiretaps as commander in chief under Article II of the Constitution, and therefore doesn’t need legislative authority to act, especially in a time of war or national emergency. And if he needed it at all, he got it with the Congressional Resolution passed after the September 11, 2001 terrorist attacks on this country.

While the newspapers, talk shows and op-ed writers will have a field day with Mr. Specter’s hearings, the real issue is as old as our form of government itself, and is the same basic tension in every discussion of foreign policy and national security, where the powers to deal in such matters are “shared” by the president and Congress.

This isn’t a Democrat vs. Republican issue: a number of former senior Justice Department administration officials from both parties have argued clearly that the president, any president, has the authority to order such measures and that the authority doesn’t come from Congress at all, but from the Constitution. And both Senate and House Democrats and Republicans have argued the president did not and does not have the authority to do it. Who’s “right”?

We may not ever really know, unless and until a case involving the wiretaps actually gets into the federal court system — and that may not happen, because from most reports, the information from the wiretaps was used for tactical and strategic operations in the global war on terror.

But one thing is certain: While the president and Congress each has a “position” or “argument” on the issue, our court system — maybe even the Supreme Court — will have the final say.

So far, when issues involving the shared national security powers of Congress and the president have come before the courts, two general approaches have been observed:

Often, the court determines there is basically a “political question” at stake between the president and Congress and will therefore not involve itself. An exception could be made to this rule of “judicial abstention” if individual constitutional rights are involved, which is certainly possible in a wiretapping scenario.

In a case the court decides to hear on the merits, the justices will most always look to the common ground on the issue between president and Congress, and this no doubt is why the administration argues the president used his basic Article II authority and the authority Congress gave him in the September 11 Resolution.

So the issue, if it gets into court, may get down to interpreting the September 11 Resolution, which is very broadly worded, and clearly intended to give the president broad authority to fight the war on terror.

To argue otherwise, as some in Congress may be tempted to do, undercuts the Congress’ relevance and authority to confer any authorities relevant to the shared powers in national security and foreign affairs — and this would certainly not be in the best interests of Congress.

More than likely, the real objection of Mr. Specter and Congress is as follows, though they obviously will not want to say it this way: “Yes, we gave the president a broad grant of substantive authority in the September 11 Resolution. However, now — especially in light of the NSA wiretap operation — we wish we had attached more conditions. When we do this kind of thing in the future you can bet that we will.”

The bottom line: Congress simply disagrees with what the president did and wants to control (at least participate in) the decision to engage in such activities. But that is not new and is what we expect of Congress in our form of government.

However, if Congress wants to remain relevant and engaged in such matters, it needs to get serious about regulating and providing oversight of the process rather than just objecting to the activity, just as it did with “covert action” after the Iran-Contra investigation in the 1980s. Former President Bush (the elder) vetoed the first version of the “corrective” legislation that amended the National Security Act — and it became law only after Congress recognized the president’s inherent constitutional authority as commander and chief to order this sort of activity in the first place. Sound like an echo?

Daniel Gallington is a senior fellow at the Potomac Institute for Policy Studies. He is a former Justice Department deputy counsel for intelligence policy and bipartisan general counsel for the Senate Intelligence Committee.

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