An Introduction to Presidential Limitation and the Dangers of Wiretapping

Editor’s Note: I have tried to offer here a concise and helpful resource for those who unaware of the Constitutional background to this conversation.

The question of presidential power has been discussed long ago before the debates concerning the Bush administration. In fact, Bush has probably gleaned much from previous precedents in US history. For instance, undeclared wars have happened before. Hence, the Bush administration cannot claim this abuse of power as an American innovation.

There is no constitutional debate over the President’s authority to take action outside of congressional declaration in times of emergency. In fact, wherever the president goes, he is always accompanied by a briefcase. In case of a crisis or an imminent attack, the president may open this briefcase and with a touch of a button (and a few passwords, I assume) he is able to authorize nuclear strikes or any form of preemptive attack. On another unrelated note, the president also has the authority to pardon anyone he wishes. This is his constitutional authority, no matter how wrong we think he may be–Scooter Libby as an example.

The contested part of this entire discussion regards the presidential authority to spy on people’s telephone conversations or authorize a strategic war on Iraq–as an example–without Congress declaring a war. This is where the discussion turns from a constitutional right to an executive abuse of power. The war in Iraq was certainly not a preemptive attack; Iraq posed no military or nuclear threat to the United States. Further, Iraq had nothing to do with the 9-11 attacks; it had no connection with Al-Qaeda–the terrorist organization founded by Osama Bin Laden. Hence, any attack by the US military was a strategic and calculated attack. It is in such cases where Congress must declare war. Without Congressional approval, the president has no authority to invade or bomb any country. The entire point of the Constitution was that when a nation enters into war with another nation, the country is behind it–through the approval of the majority of Representatives who represent the districts throughout the United States and further, the Senate, which represents the individual states. As Alexander Tabarrok writes:

The Framers of the Constitution were determined not to grant the president an unfettered power to make war. Having just suffered at King George’s hands, they believed that vesting the executive with war-making power almost inevitably led to abuse. Thus they clearly wrote: Congress, not the President, shall have the power “To declare War, grant letters of Marque and Reprisal, and make rules concerning captures on Land and Water.” The President could act without the authority of Congress only to repel sudden attacks. In all other cases, Congress alone had the authority to declare a war.

When this authority is abused it leads inevitably to tyranny; and tyranny leads inevitably to the loss of our civil liberties. No nation can live free when civil liberties are stolen.

When the president embraces unlimited authority, then there is no stopping. He will do whatever it takes, under whatever pretenses, to “protect” our lives from terror–however that may be defined by him. Protection, of course, involves entering into the most personal details of our lives: our conversations on the phone or via e-mail. The president does all of this masquerading himself as protector of liberty. He may have legitimate concerns; he may be deeply fearful of another 9-11, but at that moment he has abused his powers and disobeyed the Constitution he promised to uphold.

Fritz Schwarz understands the history of such acts and their consequences:

You can have something that starts in a benign way. And then it spreads to the unbenign and that always happened. It was true with NSA, the National Security Agency, as proven by our investigation. They got every single cable that left the United States for 30 years, but they started only wanting those because they wanted to get information from encrypted cables that were sent by foreign embassies to their home governments… They then went to getting the cables of civil rights leaders, all of them, and any Vietnam War protesters, all of them… Secrecy plus lack of oversight leads to mission creep. And that leads to the move to the indefensible.

Our liberties are at stake; our privacy is at stake. According to an article on the USA Today:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

This is why there are checks and balances, so that no branch of government may abuse its role. Politicians have always been filled with too much ego; the last thing we want to happen is give unrestrained power to them. As Pat Buchanan has once written: A republic, not an empire.

For an interesting debate on wiretapping: