Wiretap Debate Should Go To Courts

CBS' Andrew Cohen Advises White House To Prove Case In Court

(CBS) 
There is only one noble path now for the president to take. He should immediately order the executive branch itself to go into federal court seeking a declaratory ruling on the constitutionality of his domestic surveillance program. If the White House is as confident about the legitimacy of the program as it claims there should be no fear that the federal courts, including the United States Supreme Court, ultimately will find that a president's war powers under the Constitution include the power to spy on his own citizens without a warrant despite the Fourth Amendment's prohibition against the practice. A ruling in favor of the White House would immediately stymie any legislative effort to limit the president's power.

And it would protect future presidents from having to fight this fight.
On the other hand, if the federal courts were to rule that the president's war powers are limited in the context of domestic surveillance there will be no need for Congressional action; no need for the racy investigations that so many people now are talking about on Capitol Hill.

If the United States Supreme Court says the president cannot order domestic eavesdropping without a warrant he will have to stop the practice and acknowledge that even in this time of terror his powers over American citizens are limited. The issue would be resolved for future presidents but still would allow Congress to fiddle around a bit with FISA to try to get the president more (and lawful) surveillance powers.

This issue may have enormous political overtones but at its core it's a legal issue -- whether or not the law allows what the president says it does. It's notable to me that the White House's tribunes on this issue, people like U.S. Attorney General Alberto Gonzalez, talk only about the "legal position" they are taking on the issue of secret domestic spying; it's a tacit acknowledgment by the very people asserting this broad presidential power that the law does not at this moment expressly recognize such a power.

I don't expect the White House to take my advice (I never do, incidentally) because even to ask for a declaratory judgment from the courts on this issue would be to acknowledge that the president's war powers can be limited by the judicial branch. And that's a position that this Administration has consistently refused to endorse.

Eighteen months ago, remember, the Supreme Court told the White House that it does not have a "blank check" to conduct its legal war on terrorism. It's time again for another showdown between the branches -- and another opportunity for some legal clarity about which constitutional rules ought to apply in this time of terror.