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Separation of Powers or a Power Grab? By: Alan Nathan
The Examiner | Friday, February 17, 2006

The rhetorical wars surrounding President Bush’s warrantless NSA surveillance of terrorist suspects have exposed a frightening want of knowledge and reasoning skills on the part of both supporters and detractors in that they’re mixing up the arguments of legality with those of consensus. It’s like challenging your grandmother’s will because you were left out of it – you may rightly think she did you wrong, but you’re wrong in thinking that she didn’t have the right.

Michigan Democrat Senator Carl Levin has said that the president “can't just simply use the necessity to move quickly as an excuse to bypass the law which we put in place, which is the true check on the executive power, the laws that Congress passed, including the FISA law.” U.S. Attorney General Alberto Gonzales countered, “We have to remember that the Foreign Intelligence Surveillance Act was created in 1978, and technologies have changed dramatically.” In opposing that position, New York’s Democratic Senator Chuck Schumer has said, “My guess is we would have given [administration officials] what they wanted. We just would have made sure there were safeguards there. They have sort of an attitude ‘we can do whatever we want;’ that's not the Constitution as structured.”


What these gentlemen are forgetting is that all laws, including the Foreign Intelligence Surveillance Act, are non-binding to the extent that they cross the separation of powers guaranteed to each branch.


Let us concern ourselves only with constitutional law vs. legislative law and not the politics. The United States v. Troung Dinh Hung 1980 heard by the Fourth Circuit Court of Appeals, and a sealed 2002 case heard by the FISA Appellate Court, were cases in which both courts agreed that the president has the “inherent authority” to conduct warrantless wiretaps for foreign intelligence gathering purposes. They also found that such surveillance would include domestic partners to foreign agents.

Neither Legislative nor the Judicial branch can remove this repeatedly court recognized “inherent authority” granted to the Executive under the Constitution’s separation of powers. In short, no branch may usurp the powers that define another branch’s domain. The only permissible vehicle for changing these powers is a constitutional amendment. It may not be done through legislative statue or court ruling.


Ironically, the only reason why branches are capable of placing “checks and balances” on one another is because each has certain absolute powers beyond the reach of the other two. Just as Congress and the Judiciary have both the right and the obligation to protect their separated powers, so too does the Executive Branch. Any power grabbing committed would be a hostile act against the people.


A perfect example is the process necessary for placing a new justice on the Supreme Court. Congress and the Supreme Court cannot tell the president whom to nominate; the president and the Supreme Court cannot tell Congress whom they can reject or confirm; and the president and Congress cannot tell that Supreme Court Justice how to rule once he or she is on the bench. These separations of powers are sacrosanct but no more so than any of the other “inherent authorities” allocated to each branch respectively. This includes the president’s commander-in-chief role under Article 2, Section 2 of the Constitution.


However, Pennsylvania Republican and Senate Judiciary Chairman Arlen Specter is joining many Democrats in saying that the president’s warrantless NSA “spying” is covered neither by the Constitution nor by the September 14, 2001, war resolution. But if that’s true, why does that resolution’s fifth “Whereas” introductory statement read, “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”? It then adds, in Section II (a), “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


Accordingly, Attorney General Alberto Gonzales recently gave Senate testimony arguing that a wartime president has the authority to issue these warrantless monitoring operations. Those having the academic acumen of a soup bowl have countered that their authorization was for “Use of Military Force” and not for war. But in Hamdi v. Rumsfeld in 2004, the Supreme Court found that the resolution’s reference to “all necessary and appropriate force” actually extends to the traditional incidents of waging war.


A constitutional authority doesn’t have to be specifically stated if it’s inherently part of another already specifically stated umbrella authority. It doesn’t state that in time of war the president has the authority to attack enemy units, disrupt their communications, or destroy their bases, but we know that these actions are part of his “inherent authority” as commander-in-chief. Also included must be his leeway for the foreign intelligence gathering necessary for determining how best to target those units, communications and bases.

Congress does have a legitimate “check and balance” to the president in time of war. But it’s limited to removing the war resolution should they disapprove of the war’s progress, or lack thereof. And just as he doesn’t have the right to invoke such a resolution on their behalf, they don’t get to be the surrogate commander-in-chief once that resolution has been passed.

And spare me the Nixon wiretap analogies of the ‘70s. Similarities do not dissimilarities erase. You must have more of the former than the latter in order to sustain any analogy – otherwise it wilts under the light of scrutiny. Tricky Dicky was after his own political enemies; Bush is after the enemy whom our country ordered him to pursue.

An abridged version of this article appeared Thursday in The Examiner.

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Alan Nathan, a combative centrist and "militant moderate," a columnist, and the nationally syndicated talk show host of "Battle Line With Alan Nathan" on the Radio America Network.

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