The left's war against the President's constitutional powers

Opinion Journal:

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... it's important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn't merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror. For a flavor of this strategy, spend a few minutes on the ACLU's Web site.

In that regard, even the weekend deal is far from encouraging. For example, the new law does not offer explicit liability protection for telecom companies that cooperate with the wiretap program. Instead, the most Democrats would accept is language to "compel" the cooperation of these companies going forward. The Administration hope is that this "I had no choice" claim will be an adequate defense against future lawsuits, but in the U.S. tort lottery that is no sure thing.

Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn't merely to open another rich target for the tort bar. It is to use lawsuits to raise the costs for private actors of cooperating with the executive branch. Even if they lose at the ballot box or in Congress, these antiwar activists still might be able to hamstring the executive via the courts.

That's also the explicit strategy in trying to expand the reach of the special FISA court to all wiretaps, foreign and domestic. The left is howling that the NSA will no longer need a FISA warrant for each wiretap (of which there were 2,176 in 2006). That's the best part of the bill. But the Administration did concede to let FISA judges review the procedures for wiretapping up to 120 days after the fact. If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.

This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.

The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.

In the weekend deal, the Bush Administration grants the FISA court power to review procedures even for foreign communications, which is unprecedented. Under Article III of the Constitution, the courts are granted the power to settle disputes. The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation's judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.

As for the possibility that Presidents will abuse this power, fear of exposure is an even more powerful disincentive than legal constraint. The political costs of being seen as spying on Americans for partisan ends would be tremendous. Congress, on the other hand, is only too happy to use the courts to squeeze executive power, in part because this allows the Members to dodge responsibility themselves. If there's another terror attack, the President still gets the blame even if some unelected judge refused a warrant. Congress can blame everyone else.

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This outrageous attempt at an unconstitutional power grab by Democrats concerned about the privacy rights of the enemy in Pakistan should be a political liability that will haunt them in the coming elections. Their irrational fear that the President wants to listen to political opponents has no basis in fact.

One of the worst senators since McCarthy, Sen. Pat Leahy, is always asserting that when administration witnesses are instructed to assert executive privilege that they must have something to hide. He would be outraged if a similar argument were suggested about his opposition to the terrorist surveillance program. Sen. Leahy, are you afraid you might be caught leaking classified information again? Certainly there should be no reason to fear that politicians have been communicating with the enemy. Democrats have been pretty up front about their efforts to retreat.