Ignoring the law by engaging in domestic spying? Flouting the law? Willfully violating the law? No, on the contrary. The Bush administration’s record is quite clear and consistent: Somewhere inside the locked filing cabinets of this administration’s top lawyers are perfectly clear and cogent legal arguments on behalf of, dare one say, every single official action the administration has ever taken.
What those memoranda have in common, I’ll bet, is their aggressive and consistent defense of executive and presidential authority. They construe it here, they construe it there, they construe it just about everywhere.
You can start with the president’s commander-in-chief powers: In truth, when it comes to almost anything having to do with the deployment of U.S. military forces abroad and supporting the war effort — including, ahem, providing them with intelligence in a war against nonstate actors — there are responsible lawyers who will take the position that the Constitution empowers the president to do as he sees fit.
After the Constitution, you can look at specific statutes, and what you will nearly always find is some kind of colorable legal argument that the president has the authority he seeks to exercise. In the case of the war against al Qaeda, you’ve got a congressional resolution broadly authorizing the president to use “all necessary and appropriate force” against “nations, organizations, or persons he determines planned, authorized, committed, or aided” the September 11 attacks. Now, if you can’t find a lawyer who will argue that inherent in the authority to use force is the acquisition of intelligence against whom to direct the force, nor that if the president is authorized to “determine” who was in on it, he is authorized to do so by means he finds necessary, then you haven’t really looked for a lawyer.
But we didn’t mean he could wiretap people in the United States, says Tom Daschle, then the Senate minority leader. Right, and that’s why the Supreme Court pays so little attention to legislative history, let alone after-the-fact commentary by lawmakers: They tend to be in favor of good things and against bad things. That’s very convenient for them, but the real legislating is in the legislation.
Add, as well, the ambiguity produced by new technology — it’s harder to say whether you’re acting domestically, abroad or at the border in the case of some intelligence intercepts — and you’ve got a whole new set of possible legal arguments that will conclude the president has the power he asserts.
The notion that the administration behaves lawlessly is all wrong: In a way, it behaves hyperlegally: Every question is subject to careful review. In fact, it is subject to careful review not only on the merits but for the way in which the underlying constitutional and statutory authorities can be maximally construed in favor of latitude for the president.
Now, you may not like this. You may think that the administration overreaches in construing its powers. And you may be able to point to certain court rulings, such as the so-called enemy combatant cases, in which the court has declined to accept in full the administration’s view of its powers, though it accepted much. But all you are saying there is that the court is a place for fighting these things out, not that the administration’s position is indefensible. The administration has very good lawyers.
Now, as it happens, I am sympathetic in general to a broad reading of the president’s constitutional powers, especially the commander-in-chief power, and I have no great objection to the eavesdropping at issue in the current controversy. In fact, when some future historian writes a comparative history of the civil-liberties implications of the war on terrorism, I think it will be striking how little they were impinged compared to previous conflicts. But that doesn’t mean the administration is always right in its legal conclusions, nor that even if its position is tenable, it always makes sense to defend the maximal position in favor of presidential power.
On the contrary: The administration would be a lot better off if it could get Congress more involved in legislating in some of the areas in which a new kind of conflict has imposed new kinds of legal challenges. Admittedly, Congress can be somewhat lackadaisical about exercising its own powers. But it’s no solution for Congress to leave the questions to the executive branch while waiting in the wings to pounce at the first opportune moment to exploit controversy.
The administration is in hot water over domestic spying not because what it has done is unjustified in the context of hunting down terrorists nor because what it has done is unlawful, but because rather than obtain an explicit grant of legislative authority to address the ambiguity of the matter at hand, it chose to construe its authority in the interstices of existing law.
There’s a difference between what’s legal and what’s prudent. And while the administration is always going to have partisan detractors, it does have influence over how much ammo they have to work with.
