Tuesday, December 20, 2005


I've been listening and reading many offer analysis of the NSA wiretaps. I hear some calling for impeachment. Others profess profound shock and concern that our President would authorize secret actions in the name of war and in the name of protecting us from an enemy that declared war on our system of political economy years ago. Many of the lawyer and law professor blogs are ablaze with analysis. And, yes, I understand that the wiretaps being discussed involved one participant to a phone call that was a citizen of the United States. I would like to make an informed judgment about this controversy, but I'm afraid the public conversation is likely to be so filled with inaccuracies and even outright lies, that I'm not optimisitc that an informed judgment on my part is possible. But, I'm going to start by taking out my copy of the Constitution.

Article 2, Section 2:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States. . . ."
So, what do we suppose the words mean? My first thought is that the President has power which has been granted from We The People to be Commander in Chief. Second, this granted power would be called, I think, a "plenary power." That means that neither Congress, nor the Judiciary, shares any of the power of the President as Commander in Chief. It is a power that, in terms of this part of the Constitution, has no constraints on it that are written down. This is unlike the power of Congress to regulate interstate commerce because this Congressional power is constrained by the Necessary and Proper Clause of Article 1, Section 8.

I look next at Article 1, Section 8 to consider the powers of Congress, and I find:

"The Congress shall have Power . . . .To declare War. . ."

Now it seems to me the language we find in the Constitution says that Congress, not the President, has the power to declare war. This power seems to me to be much like the President's power as Commander in Chief in that there are no written constraints or limits on this power. And, neither the President, nor the Supreme Court, can declare war.

If we put both these clauses together, Congress declares war, or in the more modern language of today, Congress authorizes the President to use military force. The President, on his own power, cannot authorize the use of military force, and the President cannot declare war. Likewise, Congress has no power to implement the use of military force that has been authorized, nor does Congress have the power to check or constrain the choices of the President as Commander in Chief. Further, since the Supreme Court is not mentioned in either of the Constitutional clauses, it would seem that the Supreme Court has no power to constrain Congress in the ways it authorizes the use of the country's military, nor does it have the power to constrain the President in the ways in which the Commander in Chief power is carried out.

Of course, I haven't studied Supreme Court opinions on these aspects of the Constitution. But, perhaps that isn't too relevant, since it is my belief that any of us should be able to read the words written in the Constitution and have a darn good chance of knowing what the Constitution means.

What could all of this mean for Presidential authorization of wiretaps by the National Security Agency? It seems to me that we should see the National Security Agency as falling within the realm of Commander in Chief power, especially if the National Security Agency is acting against an enemy for which Congress has authorized the use of the country's military power. Wiretaps to monitor phone calls by such an enemy, even if those phone calls include another person located within the United States (whether this person is a citizen or not), would seem to me to involve the President's use of the Commander in Chief power to wage an authorized war against the enemy. As such, it would seem that we should not think either Congress or the Supreme Court have the Constitutionally granted power to constrain the President's choices to secretly monitor the phone calls of the enemy.

Now I understand that people are talking about various statutes and various Judicial opinions as being relevant. The talk seems to be asserting that this President broke the law. But, if the relevant law attempts to constrain the President's waging war against an enemy for which force has been authorized by Congress, then it would seem to me such a law was not a law because it would be unconstitutional.

In other words, I'm thinking that my reading of the Constitution suggests that the real issue with respect to secret NSA wiretaps is whether or not: (1) the President has been authorized to wage war against an enemy, and (2) do the wiretaps involve secretly monitoring individuals who the President believes are among the members of this enemy. If the President authorized secret monitoring of the enemy, I can't imagine that such an action is inconsistent with these clauses in the Constitution. Nor, can I imagine that a large percentage of my fellow Americans would not want the President to secretly monitoring our enemy.

Do I misread the words of our Constitution? Do I misread the nature of the secret wiretaps?

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