Inherent Presidential Power

Ever since the New York Times exposed the President's secret authorization of the NSA to eavesdrop on US citizens without a warrant, Washington D.C. has been abuzz with talk about the President's inherent authority. So what does "inherent authority" mean? Where does it come from? Most importantly, where does it end?

The authority does not come from FISA. In fact, the President's order appears to be in blatant violation of that law. Remember, this was a law designed to clarify specifically what the executive branch could and could not do in the way of electronic surveillance. This law as amended several times since 9/11, but has never been amended to permit this conduct by the executive branch without a warrant. It permits the government to obtain a warrant as much as 72 hours AFTER eavesdropping, but it ALWAYS requires a warrant. Notably, when this act was signed into law (in response to abuses by the Nixon Administration), then President Carter specifically stated (as the Bush Administration now frequently does to establish "Presidential Intent") that the law makes clear the extent of executive power in this area.

Notably, even President Bush publicly stated that even with roving wiretaps, a warrant is ALWAYS required. He made this statement in Buffalo New York, three years after he had authorized just the opposite - warrantless wiretaps. Seems like a lie to me....

The authority certainly does not come from Congress's authorization to the President to use all necessary force against Al Qaida. Tom Daschle's op ed piece in the New York Times makes clear that the Administration asked for and was specifically denied the power that they now are using in the United States.

Does it come from the Constitution? This is probably the Administration's strongest argument. But they cannot point to a single line in the Constitution (remember, they want judges who will read the Constitution strictly) that gives the President inherent authority to conduct searches without a warrant in violation of the Four Amendment.

So, let's assume for a moment (for argument's sake) that the President does have this inherent authority to engage in searches and seizures without a warrant when HE determines it is in the interests of national security. Does this mean that he can listen in on my phone calls? Can he read my emails? Well, I guess it all turns on whether he finds that doing so is in the interest of national security.

Now, I happen to be a Democrat. And I happen to oppose many of President Bush's policies. I don't advocate terrorism, but I would very much like to see a different person as President (and I do not mean Dick Cheney). But I do write in this Blog about some of the President's policies that I object to. What if people actually started to read my Blog? (First, it would make me happy, but it would also be a big surprise to me.) What if, in addition to reading my blog, it actually changed a few opinions? What if some of my readers became more vocal opponents of the Administration? Could I be seen as a threat to the Administration or, possibly, a threat to national security? Would the expressions in my Blog (which, by the way, are protected by the First Amendment) be enough for HIM to determine that I am a threat to national security and justify wiretapping my phone or reading my emails without a warrant? (Note that I have almost no overseas calls or emails and certainly none to any terrorists.)

Let's assume that HE determines that I am a threat to national security. Could HE have me arrested? Could HE hold me without charges for an indefinite period of time (in violation of my 4th and amendment rights again)? Could he instruct the CIA torture me or send me to a prison in another country to torture me?

You see, that is the problem with this "inherent authority" argument. It has no end. If you agree that the President has this inherent authority, then he can do all of those things - including the torture part which Congress expressly prohibited over Dick Cheney's vocal opposition....

And, for you Republicans out there who say all this is OK. Remember, some day the President will not be named Bush. Some day, the President WILL be a Democrat. When you object to THAT President's policies and you write in your Blog about it, should THAT president be able to order his goons to listen in on YOUR phone calls and read YOUR emails? Should THAT President be able to suspend your First Amendment Rights; Your Fourth Amendment Rights; Your Habeas Corpus Right? Should THAT President be able to hold YOU indefinitely without a warrant or send YOU to a foreign country to be tortured until you admit that you are a national security threat.

In that scenario, YOU might want to reassess your belief in the inherent presidential authority.

Be careful what you wish for as it might come to pass.

P.S. Did Bill Clinton have the "inherent authority" to have an intern give him a blow job? Could he have stated that it was in the interests of national security to suspend the applicability of the perjury laws to him? Could he have said that it was in the interests of national security to suspend the impeachment authority of the Congress?