Is Congress Listening?

In her ruling Thursday that would end the National Security Agency’s warrantless surveillance program, U.S. District Judge Anna Diggs Taylor in Detroit took the argument of “inherent powers of the presidency” back to their source and found them not nearly as expansive as the White House has asserted.

” … There are no hereditary Kings in America and no powers not created by the Constitution,” she wrote. “So all ‘inherent powers’ must derive from that Constitution.” She also cited the Foreign Intelligence Surveillance Act (FISA), which says it is illegal to conduct domestic surveillance without either a criminal or intelligence warrant. Her ruling will be only one of several centered on this question expected during the next several months; other judges will have a different view and the two sides in this question will choose rulings selectively to make their points.

But there was never a good reason for this disagreement on so fundamental an issue, under the cloak of secrecy, to end up in court. The failure of the White House to fully inform Congress and the subsequent failure of Congress, upon learning of the program, to agree on a means for overseeing a program that has the potential for the serious abuse of individual liberties results in Americans being handed a false choice. They are being asked whether they support the pursuit of terrorists through telephone records or not.

Of course pursuing terrorists still reckless enough to use telephones makes sense, and, no, the lack of warrants for the NSA hunt doesn’t place it one step away from a pogrom. The question is whether the secret program is constitutionally sound and whether someone outside of the administration and with authority is ensuring that limits in the program’s reach are enforced. The answer to both appears to be “no.”

The situation was similar to the false choice presented in the question of enemy combatants held at Guantanamo: The issue there was never whether the United States could protect itself by imprisoning enemy combatants. A plurality of the Supreme Court acknowledged that combatants could be held, but that due process demanded a citizen held as a combatant be given an opportunity to challenge the detention before a “neutral decisionmaker.” Why wouldn’t Americans want to provide fellow citizens the opportunity to defend themselves?

These are issues Congress should be able to handle without months of stultifying debate that challenge the patriotism and intention of those who disagree with them. Instead, an overly aggressive White House and a cowed Congress have failed to meet their responsibilities, and the decisions have been shoved over to the courts.

But the checks and balances in the Constitution aren’t there to test how skillfully political leaders can avoid them. The issue of wiretapping will be back in Congress next month, and the public should watch closely to see if Congress can find agreement in six weeks when it has failed to do so over the last year.