Following the revelation that President Bush authorized the National Security Agency to tap the international communications of certain people suspected of ties to Al Qaeda without first obtaining a federal warrant a funny thing happened: his approval ratings jumped. According to a recent ABC/Washington Post poll, the president’s overall approval rating climbed from a career low 36 percent to a much more respectable 47 percent. More significantly, the approval rating for the administration’s handling of the war on terrorism climbed eight points to a strong 56 percent.
It would appear that a majority of Americans believe that conventional intelligence gathering procedures may not be adequate to fight men who fly airplanes into buildings. Our national intelligence agencies must have the flexibility to adapt to the enemies’ changing methods and tactics on a dime. In short, Americans do not find it unreasonable to use extraordinary means to hunt down al-Qaeda terrorists in order to prevent another attack like the one that occurred on 9/11/01.
In spite of the loud and often angry charges of illegality, the issue at hand is not one of legality but one of constitutionality. Article Two of the United States Constitution asserts that the president will “preserve, protect and defend the constitution.” The Bush administration -- and every administration that preceded it -- maintains that during times of war and where matters of national security are concerned, the president has an inherent authority to act extra legally. At the beginning of the Civil War, Abraham Lincoln suspended the right of habeas corpus and actually jailed citizens critical of the war effort. In 1994, then President Bill Clinton claimed similar authority to conduct no-warrant searches of American citizens in the interest of national security. The Bush administration makes a compelling case that the president’s authorization of wiretaps is not illegal because it is the Constitution and not Congress that empowers the executive office.
In theory, assuming this reading of the Constitution is correct, during a time of crisis, the powers of the president may become limitless. Americans are naturally wary of such reasoning. What is to prevent a future president from expanding the current narrow parameters of no-warrant searches to accommodate some expanded version of terrorism all in the name of something as vague as “national security?” The Constitution is not a suicide pact, and our civil liberties are non-negotiable. It is America’s respect of civil liberties that leads some to suggest congressional limits on executive powers through legislation and judicial review. However, the delicate balance between presidential powers and our national security needs cannot be maintained through greater bureaucracy. Congress simply cannot anticipate every contingency, nor can a judge be relied upon to oversee every national crisis. In fact, tying the president’s hands with red tape may actually endanger the lives of Americans.
Ultimately, authority rests with the people, and this is as it should be. The most valuable check on presidential power and the most effective protection of our civil liberties is public opinion as expressed through the people’s representatives – that and a healthy respect for the Second Amendment. The real-life application of presidential power rests largely in the will of the president and the trust of the people. A popular president might be said to enjoy greater trust and thus have greater discretion in critical issues of safety and security. If a president loses popular support, he will be checked by Congress. The president claims his actions were justified and within constitutional limits. If Congress believes the president has grossly overstepped his authority, then they should move to impeach him.
The president is making his political case to the people. Congress should do the same. At the end of the day, this is the manner in which constitutional matters are decided, not in legal courts, but the court of public opinion.
