Down the Slippery Slope

Joshua Micah Marshall:
William Kristol and Gary Schmitt have a column in today's Washington Post that advances a simple premise: the president "uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution."

If you follow those gentlemen, you will not be surprised that their column is up to their usual standard of unprincipled duplicity:
A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?

If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.

But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist.
What nonsense. Consider that FISA allows wiretaps without prior approval, and that the FISA court has refused only 10 out of more than 10,000 requests during its history.

If the President were to believe he needed more authority than the statute allows, why should he not go to the Congress and ask for it - that's the way things are supposed to work in a republic. Kristol and Schmitt argue for an interpretation of presidential power so sweeping that the distinction from dictatorial power is almost insignificant.

It's even more telling that this so-called "war on terror," a war without declaration or any plausible end point, is in no sense an emergency for the nation in the sense that Pearl Harbor was. The number of people killed on 9/11 was large, and the economic consequences considerable, but there was no serious threat to our strategic or military power - nothing in any way comparable to the destruction of much of our fleet at Pearl Harbor.

Finally, let me return to the line Josh quoted about the Presidential oath. First, it seems a monstrous perversion of logic to assert that an oath to preserve and protect the Constitution could be construed to grant the power to violate it and the laws extablished under it. True, it's the only one specified in the Constitution, but it's very similar in language to the statuatory oath sworn by every clerk, typist, officer, and bureaucrat, which reads in part:
I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic ...
US Code, Title 5,...


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