Daschle's Originalism

President Bush's argument that Congress gave him the authority for expansive eavesdropping was countered by ex-Senator Tom Daschle in an Washington Post op-ed:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Daschle goes on:

If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president's justification for them, and the administration should cooperate fully with that investigation.

In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day.

To support his argument Daschle went back into (recent) history to gleen the sense of the Senate. He was trying to determine their original intent. Is this Tom Daschle or Antonin Scalia?

It's interesting we can determine the intent of Senators from four years ago, but we can't determine the Founding Fathers' original intent (or the very words they used) to support a more literal reading of the constitution (no mention of abortion, Miranda rights, creation of the modern welfare state, etc.).

Then we have Captain Ed blasting Daschle:

Nowhere in that resolution does it restrict the Bush administration from conducting its war operations within the US, and contrary to what Russ Feingold and Tom Daschle would have Americans think, laws do not enable government power but restrict them. That which is not explicitly forbidden is therefore assumed to be legal, and not the other way around, as a moment's thought will clearly show.

As a conservative I'm not comfortable stating it like that. What Ed is talking about is "negative liberty." While I agree the concept should be applied to individuals I'm not so sure it should be applied to governments. Government must be limited to secure liberty. But liberty is meaningless without adequate security. Creating institutions and writing words on paper can only limit actions so much. Lawyers, because of their years of training, analyze what can and can't be done under the law. They find loopholes and seams to squeeze their clients through--be it a petty thief, a corporation eyeing a tax break, or the government using new methods to find terrorists.

Also on the right, John Hindraker analyzes the NSA's activities starting with the President's constitutional powers as commander-in-chief:

The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.

Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs.

A limiting factor is the Fourth Amendment. Hindraker points out it "does not apply to terrorists overseas." There is also that important word "reasonable" before "searches and seizures." Is it unreasonable for the President of the United States to listen in to conversations of people in the U.S. are having with terrorist suspects overseas? Hindraker agrees:

The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

Politically the President wins this argument. The intent of President Bush is to stop terrorist attacks. The public will accept that argument if the White House does a good job arguing that. If it's found the NSA was used to spy on political enemies then get ready for impeachment hearings. But there hasn't been any hint of this. After Congress holds its hearings next year this issue will pass. Some new legislation might be passed to limit the President's intelligence capability but that will receive Bush's (first!?!) veto. Another effect will be increased paranoia and rage from Bush bashers.

Daschle's originalism versus Hindraker's textualism, which one wins? Hindraker does because he goes straight to the heart of powers of the American government, the constitution. Daschle only tries to pop a balloon in one of the Bush administration's arguments.

"Power We Didn't Grant"