The Commander-in-Chief

The Department of Justice has released a new (longer) rationalization for the President's decision to ignore the warrant requirements of the Foreign Intelligence Surveillance Act (FISA), and it's simply more of the same old "inherent power of the President" song. But what about the explicit powers of Congress?

The Constitution makes the President the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." (Article II, Section 2) The Constitution also says that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties..." (Also Article II, Section 2) From those two provisions come the general idea that the President is responsible for foreign relations, and the defense of the country, and has the inherent power to carry out those duties. Which, as a general proposition, makes sense.

But what about the powers of Congress? Even the power to make treaties requires the "Advice and Consent of the Senate," so Congress has a role in foreign affairs. More importantly, Article I, Section 8, clause 14, states that Congress shall have power "To make Rules for the Government and Regulation of the land and naval Forces."

In FISA, Congress expressed it's power by declaring that officers of the United States government shall not eavesdrop on the people of the United States except when certain procedures are followed. And FISA expressly recognizes the changed conditions that would apply in time of war, providing that the normal rules for search warrants would be suspended following a declaration of war, but only for 15 days. (See 50 USC section 1811) The President does not even seem to pretend that FISA does not apply, or that he is not in violation of FISA, but is arguing that he does not need to comply.

If the President were taking extraordinary actions in response to an extraordinary crisis, such as the 9/11 attacks themselves, or Hurricane Katrina, or an outbreak of avian flu, then a great deal of latitude would be allowed, because one of the roles of the executive is to be able to act quickly, without the need for legislative deliberation. But it's been more than four years since the 9/11 attacks, and the President has had more than four years to consider the procedures required by FISA and, if they were no longer appropriate, he could have asked Congress to change them. In fact, Congress did amend FISA after 9/11 to improve surveillance procedures against suspected terrorists. But the President chose to ignore FISA rather than ask Congress to change the law.

This issue might be resolved by the courts, but it's not likely, for the simple reason that it will be difficult for any particular person to show that they were harmed by the President's failure to comply with FISA. Which may mean that it is up to Congress.

If the President is willfully disobeying a Congressional directive, Congress has a remedy, and that remedy is impeachment. If the President's illegal surveillance were a single instance of willful disobedience of the law, that would be a rather extreme step. But the President has shown a repeated inclination to ignore laws that he doesn't like. He has allowed the physical abuse, if not torture, of prisoners in US custody, contrary to the laws and treaties of the U.S. He has held American citizens in custody without trial, contrary to the Constitution. He has held foreign citizens in custody without allowing them any hearing to determine their status, contrary to the Geneva Conventions ratified by the U.S. Senate. And he has allowed the seizure and transportion of persons for interrogation (and possible torture) in foreign countries (the so-called "extraordinary renditions"), contrary to U.S. and international law.

Impeaching the President does not yet seem to be the "politically correct" thing to do. But eventually Congress will need to decide which is more important, the rule of law or politics.