On "Meet the Press" today were the former ranking members of the Senate and House Intelligence Comittees. (Daschle was defeated in 2004, so he's currently at Georgetown.) I'm sure you all know who I'm talking about: Roberts, Daschle, Harman and Hoekstra. The topic for the day was the NSA domestic surveillance program, and the banter ran down party lines. Everyone agrees that catching terrorists is good; only Democrats think you need to follow the law in doing so.
The administration has given at least 4 reasons for its authority: first, that the President has inherent constitutional authority, second that Presidents have done this before, third that the Act signed on September 15, 2001 gives him this power, and fourth that FISA is outdated, onerous and doesn't apply.
The first excuse is the one I understand least, but it seems to stem from his position as Commander in Chief and the oath he swears to defend the constitution. This has been interpreted as giving the President extralegal powers especially in a time of crisis. It's disingenuous not to remember this in context. The "domestic spying" program was begun very shortly after 9/11. No one knew what happened, or what else was going to happen. There was a palpable fear of another attack and an unmistakable grief. All the Congressmen (forgive the gendered pronoun) on the show unremarkably agreed that the surveillance program was necessary. And it has been argued that even in its current incarnation of murky legality, it was ok for a little while. When it was begun, it was an emergency. A very sad emergency. So the better question is why it continued. If the extralegal powers are intended for critical situations, and there is no imminent threat...
Regarding the second excuse, the example cited by Roberts was Roosevelt. Unfortunately this isn't as supportive of the Presidential power claim as Harman aptly pointed out the Truman-era Supreme Court decision that clearly stated Presidential power is "at its lowest ebb" if Congress has already acted. And here Congress has acted in the form of FISA.
The third excuse is very interesting. The Act gave the President power to track down those responsible in other nations. The administration specifically requested adding a phrase giving them power in the U.S. and Congress did not agree.
The fourth excuse is also questionable. Harman pointed out that the PATRIOT act updated the FISA in 8 different ways. It has been modernized, it is not onerous, and even if it were, it can easily be further modified. Daschle kept returning to the fact that this could've been done lawfully. If FISA was burdensome, Congress would have dutifully changed it.
What's so wrong about going to a court? The FISA court rubberstamps warrants. (There were a total of about 8 denied of thousands.) Russert played campaign footage of Bush from 2004 where he said that in wiretaps, he was seeking court approval. He flatly lied.
All this being said however, I feel my ideology clashing with reality. I feel like a guy I saw on Nightline or Dateline or some other indistinguishable nightly news program recently. He had lost his house, and he needed government money to rebuild. He was a doctor, obviously educated, and ideologically Republican. He had voted for Bush, and was a fiscal conservative favoring small government. He noted how helpless he was, and that despite his ideology, he needed the government and the government should act. The irony seemed to be missed by him, that there are others who struggle everyday with poverty and illness. A little bit selfish to think the government should help you when you build your house below sea level in Hurricane alley, but they shouldn't help someone who (maybe through their actions, but maybe not) has no access to health insurance or food. (Watch me turn into a socialist here...)
In my case, I'm ideologically something other than a Republican, but Roberts was the only one who could speak with some emotion. That gutteral appeal does contrast with my desire for social programs and civil liberties, but the irony is not lost on me. The Democratic party is utterly lost. We will not have a Democratic president in 2008. Of that I am certain.
