Revisiting FISA

Soon, I believe we will have a political battle over the President's ability to spy on purported Al Qaeda without first receiving a warrant. The core of the issue is that the President doesn't give any consideration of the purported Al Qaeda is an American citizen and if they are in America when the call, email, or other communication is made. To me this is not only a cut and dry policy issue but also a cut and dry poltical issue. I won't get into the politics of it because anyone can look at any polls, but suffice to say, this is one of the few issues that is a huge winner for Republicans. The Dem's base is doing them a huge disservice on this because overwhelmingly the folks just want to be protected.

As for policy, that is a more interesting question. On the surface, one would think that the President is acting outside his power. After all, it appears that FISA was created exactly to deal with this. By spying on AQ without a warrant the President appears to be clearly violating the law. That said, upon closer examination I believe that there is really no question but that the President is not only well within his rights, but frankly, that it would be crazy for him to do otherwise.

The first reason that the President is well within his rights comes right from the Constitution. The President and the President alone is the Commander in Chief. Thus, he and he alone directs all of our armed forces. Spying on the enemy is a crucial part of warfare. To cede that power to a judge is to cede the power of the Commander in Chief. Naysayers always point to one part of this arguement. They say that while it is all good and well that we spy on AQ, who decides who is AQ and who is the rest of the world. Unfortunately for the rabid anti Bush types, the decision is ultimately left to the Commander in Chief. If the Commander in Chief abuses this power, then of course that must be dealt with. That said, a judge can't cede that power until there has been abuse. FISA is a law that has been around since the 1970's. The President has been the Commander in Chief since the Constitution was created and the Constitution trumps any and all laws.

Frankly, the President's power as Commander in Chief is the only power he needs to spy on any enemy as long as that is part of a military action, however in this case he has even more inherent power. The second part of his power comes from the authorization to use military force against Al Qaeda signed September 18, 2001. Naysayers, again, say this was not a declaration of war. This is of course nonsense. There is no difference between an authorization to use military force and a declaration of war. That is the definition of a distinction without a difference. Whatever differences there may or may not be, they certainly don't affect the President's ability to spy on the enemy. Here is the relevant part of the AUMF.

To authorize the use of United States Armed Forces against those
responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

This specifically gives the President full authority to do use the military in any means necessary to protect the United States against the enemy, Al Qaeda. Spying on the enemy is a critical part of protecting the United States. Again, the President and the President alone is the Commander in Chief. The Congress gave the President broad powers to go after Al Qaeda and then want a do over when he dared to use those same powers liberally. If the President is to aggressively use the military to protect the United States from attack, he certainly must be allowed to spy on the enemy whenever he sees fit, and no judge can override that power. If the framers wanted a judge or a committee to be the Commander in Chief, that is what they would have writtten into the constitution. They didn't. The Commander in Chief needs to be able to make quick and decisive actions and no committee or judge is fit for that. The powers of the Commander in Chief can't be chosen randomly. They are absolute, and when the Congress grants the President sweeping powers to be Commander in Chief, they must understand that he will use them.

Like I said, all the power the President needs comes from the Constitution, however the President also has the power of precedent. Let's look at how other Presidents used their powers as Commander in Chief during war time. First, spying on the enemy during war time is not new. It has gone on since Washington spied on the British. Neither Washington, Lincoln, Wilson, FDR, or LBJ ever went to a judge to get paperwork before they spied on the enemy. Lincoln spied on the Confederates throughout the war. He never got a warrant before hand.

Let's look at what Woodrow Wilson did during WWI. He set up what was known as the Creel Commission, and here is what they did.

These groups spied, tapped telephones, and opened mail in an effort to ferret out "spies and traitors." The targets of these groups was anyone who called for peace, questioned the Allies' progress, or criticized the government's policies. They were particularly hard on German Americans, some of whom lost their jobs, and were publicly humiliated by being forced to kiss the American flag, recite the Pledge of
Allegiance, or buy war bonds.

Opponents of warrantless wiretaps always point out that it is unprecedented to spy on Americans during war time. Of course, first, what warrantless wiretapping doesn't do is immunize an American from being wiretapped if that American is working from the enemy. Second, the Creel Commission shows that spying on Americans during war time isn't unprecedented.

Other Presidents also took drastic steps during war time. FDR set up an office of censorship. During peace time this is an obvious and obscene violation of the Constitution, but during war time it was a necessary step to win the war. Lincoln went so far as to suspend Habeas Corpus and threw war opponents in jail without charging them. Again, during peace time, this would likely be an impeachable offense, but it was yet another necessary measure to win the war. LBJ instituted the draft and forced able bodied men to go into military service. Vietnam was never a declared war, but a police action. Bush is not the first President to take extraordinary steps to fight a war, and in fact, almost all Presidents use their powers liberally during war time. To make it seem as though the current President's steps to spy on the enemy with no approval from anyone disregards the Constitution, the AUMF and the precedent of those that held the office prior to him.