The Constitution Versus Itself

President Bush over USA Flag with a NSA logo and a person with binoculars
Attorney Andrew Cohen analyzes legal issues for CBS News and

We are now on the verge of one of those grand and grave constitutional dramas that scholars and historians will study decades, maybe centuries, from now. By boldly proclaiming that his constitutional war powers trump the Fourth Amendment's search and seizure clause, federal law, and any other countervailing authority, President Bush has placed before the American people their starkest legal choice yet between freedom and security.

The president says without apology that he has, and has used, the legal power to order the National Security Agency to conduct electronic eavesdropping on people, including U.S. citizens, within the United States without prior court approval. He said Saturday during a live radio address that his orders to the NSA to eavesdrop domestically were "a vital tool in our war against the terrorists," "critical to saving American lives" and "consistent with U.S. law and the Constitution." The government has long had the power, through proper procedures, to conduct foreign surveillance in this fashion. What makes last week's revelations markedly different is that this power now has been used domestically, in some cases against U.S. citizens, without formal Congressional or judicial approval.

The president's legal position — that no law may forbid him from ordering domestic surveillance without a warrant — is not explicitly contained in the text of the Constitution, has never before been implied into it by the federal courts, and is nowhere to be found in Congress' most germane legislation on the topic. You might say, as one long ago Supreme Court justice might have put it, that the president's power to wage war in this fashion, without specific constitutional or statutory authority, stems from the discovery by government lawyers of "penumbral emanations" of such power in the Constitution itself. That doesn't mean the power does not somehow exist; it just means that no other branch of government, including the branch that has the job of interpreting the Constitution, has ever stated that it does.

The White House, in other words, is planting its flag in startling new legal turf and daring the other two branches to do something about it. And it looks like we won't have to wait long before they do. Already, there are calls in both houses of Congress for hearings to determine whether the president broke the law when he bypassed the procedures contained in the Foreign Surveillance Intelligence Act, which were put into place a generation ago in order to protect Americans from overzealous government surveillance. And it may only be a matter of days before someone files suit in federal court somewhere to try to halt the president's declared intent to continue the domestic spying program.

The fight over domestic surveillance brings to a head the simmering conflict between the branches over the extent of the executive branch's power to wage its "back-story" war against terrorism. No one seriously disputes the president's power to commit troops to combat or to otherwise order military operations designed to break the back of the terror network. But as last week's Senate showdown over the Patriot Act suggests, and as last week's smackdown of the president over the torture issue proves, more and more serious people in government are challenging the White House's power to wage war through other means, through measures like the practice of "extraordinary rendition," the use of "enemy combatant" status, and heretofore unauthorized domestic spying. The days of mindless, fickle deference to the president appear to be over.