We have entered one of the most sublime periods in our nation’s history. President Bush has admitted authorizing the NSA to conduct wiretapping of U.S. citizens with limited Congressional and no judicial oversight.
He justifies this increase in executive power on his responsibility to protect the nation, and on the Congressional authorization to use force against the terrorists.
We can easily fall into the traditional two camps associated with his presidency: those like myself who consider him an overreaching lightweight, and everybody else in this county who thinks [highly of him].
However, I don’t see this action in quite such simple terms. I believe, as most of the Framers of the Constitution, that the presidency needs extra powers in wartime. Hamilton wrote in Federalist 74: “Of all the care or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms an unusual and essential part in the definition of the executive authority.”
However, I believe also, that this expanded power is far from absolute, or free of oversight. As Madison wrote concerning the separation of powers in Federalist 48: “It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and compleatly (sic) administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their effective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
This seeming contradiction illustrates the forces that brought the Constitution into effect and operate on us today.
The document itself is silent on the powers the President has assumed, as it is on many of his traditional powers.
The Fourth Amendment States: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Supreme Court has ruled that a wiretap is also covered by the Fourth Amendment, but has allowed for flexibility with the FISA passed in 1979 to allow the executive to conduct certain wiretaps and then obtain a warrant up to three days afterwards. The law, and subsequent court rulings illustrate well the workings of the system in trying to protect the Constitution and the people with oversight, while allowing for changing security needs and technology.
Thus, I have to ponder the wisdom of allowing the President to venture down this road where the judiciary is seemingly bypassed completely, and Congressional oversight limited to a few choice leaders who are told very little in the way of specifics.
This seems a very dangerous path indeed, where the President assumes powers over our personal privacy in the name of national security and admits to essentially no oversight by the other branches.
We must remember that the President operates as much by custom as by express Constitutional powers. If you completely trust Mr. Bush, do you also completely trust his successors?
If Mr. Bush needs to exercise emergency powers, let him do so. However, for long-term expansions of executive powers, particularly as they regard our privacy, he must consult with the Congress, and submit to judicial oversight.
“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” James Madison, The Federalist No. 47.
Timothy J. Parker
Peachtree City, Ga.