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Dear [Editorialist and Washington Post Associate Editor David Ignatius]:
You wrote, on Feb. 8, that "[the clandestine NSA wiretap authorization] pits the president's power as commander in chief under Article II of the Constitution against specific legislative rules mandated by Congress in the 1978 Foreign Intelligence Surveillance Act."
I have
asked several times, reasonably I believe, who specifically the war is with,
and what will mark its end. If it's the war on terror, it potentially has no
end, so the gross constitutional distortion of the above statement
notwithstanding, the war time powers has to be seen in a new light. If
it is just the Iraq war -- as it is continuously being labeled (to either confuse or ignore the question [or just through sloppiness]) -- the
argument above would be specious aside from FISA.
To not address these questions, is irresponsible journalism. I
maintain that if you are going to repeatedly refer to the "war" as a
rationale in specific instances to expand the scope of executive powers,
than the terms of that war be clearly defined so that readers know the
potential scope, length, and applicability of what you (and your newspaper)
are talking about.
As for your statement cited above, this is even more problematic, and
important, as it goes to just what our Constitution means. Please consider this
basic analysis.
And here.
As quoted in the piece cited above, former Reagan Deputy Attorney General Burce Fein put it succinctly when he wrote: "The founding fathers would be alarmed by George W. Bush's trust me' defense for collecting foreign intelligence in violation of the Foreign Intelligence Surveillance Act (FISA) and the Constitution's separation of powers."
In essence, there are three levels of Executive power. The greatest, as conservative, federalist society member
[Robert] Levy
points out (and again, we are talking
specifically about war powers ) are when the President acts pursuant to an
act of Congress. The lowest is, of course, when the President acts in
contravention of a direct act of Congers. The middle ground is when the
President acts in the absence of any act of Congress. (It is here that items
become "nebulous," and reasonable interpretations differ.)
For the Executive branch to act in direct contravention of Congress in the
third category, it needs to have a compelling reason. The reason offered,
that, in essence, the Constitution states that the President is Commander in
Chief, and well, "the President thought that it was a good idea" (when we
are talking about operational detail over United States citizens, that
raises additional constitutional issues to boot, no less) makes a bit of a
mockery of that document.
To quote from Levy's Judiciary Subcommittee testimony; "The executive branch cannot, in the face of an express prohibition by Congress, unilaterally set the rules, execute the rules, and eliminate oversight by the other branches."
Under our Constitution, Congress has the duty and power to legislate, and the executive branch, the duty and power to execute and administer the law. Thus, for a reason to be sufficiently compelling, the law itself would have to be unconstitutional, or otherwise directly conflict with the President's capacity to operate as "Commander in Chief."
To argue, implicitly, that deciding to violate a law requiring a warrant to
spy on American citizens somehow infringes upon that capacity, is equivalent
to arguing that anything the President were to decide is somehow relevant to
"fighting a war," would likewise infringe upon that capacity. If not, we'd
be reduced to squabbling over what is and is not a good idea. And this is
precisely what Congress is for. If the President could nevertheless override
Congress on matters of Legislation, then the President by definition would
have the power to determine "what is, and isn't," a good idea, bringing us
back to the conclusion that, under this bizarre argument, the President
would have absolute legislative authority with respect to anything that he
deemed relevant. (This does not even consider the separate issue of acting
clandestinely.)
Thus, in essence, not only would the President have executive authority (the
authority and duty to "see that the laws be faithfully administered, under
Article II, Section 3) but both legislative authority and the ability to
ignore both existing and subsequent legislation. This would, as noted
elsewhere,
render the most fundamental purpose of the Constitution -- the separation of
powers clause -- essentially null and void.
.....Yet it is not only the reason offered, it is the reason that you and many other media sources have presented as merely one of two implicitly equal "points of view." This is irresponsible. It is particularly irresponsible in light of the fact that you won't answer the question as to "who we are at war with," apparently assuming it is obvious, when in fact the Iraq "war," is constantly being confused with, or substituted for, the broader war on terror. This manages to leave the larger questions as to just what is appropriate, and for what purpose, and for what period of time, and, most importantly, with what ramifications, unasked, let alone answered.
Ivan Carter