Earlier this week the New York Times revealed that the National Security Agency (NSA) has, under the direction of the President, been engaged in domestic spying for the past four years. Specifically, the President authorized the NSA to engage in surveillance of communication made (via email or phone, for example) internationally without prior approval of the courts. (The NSA would, however, seek a court order for communication entirely within the U.S.)
The secret program has again called into question the constitutional limits of the executive's wartime powers, and led to claims that, "This is a different era, a different war," necessitating novel activities to combat the unique nature of the war on terror.
One interesting aspect of the issue is the fact that the special courts that would be involved are exceedingly deferential to executive power in any case:
The court that authorizes wiretaps on terrorism suspects had not rejected a government request for a warrant in its 22-year existence to 2001, when President Bush issued an order allowing agents to wiretap citizens without judicial approval.Despite the government's perfect batting average, the courts were not sufficiently convenient to meet the government's particular needs in administrating the wiretap orders:
The court "doesn't provide the speed and the agility that we need in all circumstances to deal with this new kind of threat," Attorney General Alberto Gonzales said yesterday.Professor John Yoo, who admits that his "name has come up for criticism" over the NSA program, argues:
The Constitution creates a presidency that is uniquely structured to act forcefully and independently to repel serious threats to the nation....
Why no strict war-making process [in the Constitution]? Because the framers understood that war would require the speed, decisiveness and secrecy that only the presidency could bring. "Energy in the executive," Alexander Hamilton argued in the Federalist Papers, "is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks."
And, he continued, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."
Instead of specifying a legalistic process to begin war, the framers wisely created a fluid political process in which legislators would use their funding power to control war.
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