The Right Strikes Back...And Then Retreats

Andrew Sullivan made this passage from a George Will editorial his quote for the day.

Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."

I was interested enough to read the full editorial. Will chugs along pretty well for awhile, scoring some points by undermining the administration’s conflation of the authorization to use military force (AUMF) and the permission to spy.

Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance -- and that if the administration had asked, Congress would have refused to authorize it. The first assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it. Did the administration, until the program became known two months ago? Or was the AUMF then seized upon as a justification? Equally implausible is the idea that in the months after Sept. 11, Congress would have refused to revise the 1978 law in ways that would authorize, with some supervision, NSA surveillance that, even in today's more contentious climate, most serious people consider conducive to national security.

Good points, but Will fails to address the biggest flaw in the Administration’s defense, i.e., the argument that NSA spying was implicitly authorized in the AUMF cannot coexist with the argument that Congress would have refused to authorize the NSA spying program if it was asked; it’s a logical impossibility. If Congress would have refused the spying power, they would not have signed a bill which granted it.

These logical inconsistencies seem to suggest, once again, that Bush’s justification for the NSA program is more of slapdash response to public scrutiny than it is a set of principles which guided the implementation of the program. Will understands this to some degree, which is why his conclusion (shared by at least one Republican in the Senate) is so baffling.

But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.

Not stigmatize what he has been doing? In other words, not stigmatize the fact that evidence indicates he knowingly flouted the will of Congress and then piled lame excuse on top of lame excuse to justify it? I guess as long as he keeps his hands off the interns, Bush doesn’t have to worry about anything more than a slap on the wrist for his bad behavior.

--MM