[Mb-civic] The Wrong Wiretap Debate - David Ignatius - Washington Post Op-Ed

[William Swiggard]

The Wrong Wiretap Debate

By David Ignatius
Wednesday, February 8, 2006; A19

As quickly as you can say the words "Karl Rove," the debate over the 
National Security Agency's anti-terrorist surveillance program is 
degenerating into a partisan squabble. Rather than seeking a compromise 
that would anchor the program in law, both the administration and its 
critics are pursuing absolutist agendas -- insisting on the primacy of 
security or liberty, rather than some reasonable balance of the two. 
This way lies disaster.

The NSA surveillance debate truly deserves the overworked moniker 
"historic." This is a fundamental test of the authority of Congress and 
the executive in wartime. It pits the president's power as commander in 
chief under Article II of the Constitution against specific legislative 
rules mandated by Congress in the 1978 Foreign Intelligence Surveillance 
Act. A stable, legal foundation for the NSA program can come by placing 
it under FISA jurisdiction, or by amending FISA, or perhaps by a 
judicial review that might support the administration's argument that 
Article II trumps FISA. Instead, we have none of the above.

The administration is trying to ramrod the program through, shamelessly 
summoning families of Sept. 11 victims to intimidate political 
opposition. Rove evidently has defined anti-terrorist surveillance as a 
new "wedge" issue -- you're either with the administration or you're for 
Osama bin Laden. Attorney General Alberto Gonzales mouthed the 
no-compromise rhetoric before the Senate Judiciary Committee Monday, but 
policy decisions on this issue are made in the bunker occupied by Vice 
President Cheney and his chief of staff, David Addington. There is a 
lawyers' revolt brewing at Justice, State and the CIA against 
Addington's diktats, as outlined in the Feb. 6 edition of Newsweek, but 
so far the rule-of-law advocates haven't swayed President Bush.

Liberal interest groups are also refusing to compromise. I'm told they 
were urging Democratic members of Congress this week not to amend FISA. 
They would rather wait until next year, figuring they will have more 
congressional support after the 2006 elections. They also want to pursue 
their lawsuit charging that the president's actions are illegal. In the 
meantime, the NSA's program to "connect the dots" and track potential 
terrorists remains in legal limbo.

The surveillance issue will test whether America really is a nation of 
laws. Sen. Lindsey Graham, a Republican who is one of a handful of 
legislators refusing to play the partisan game, argues that the NSA 
debate cries out for a modern equivalent of Marbury v. Madison , the 
1803 case that established the parameters of judicial review of Congress 
and the executive branch. He and Sen. Arlen Specter are urging the 
administration to seek legal review of the NSA program, through the FISA 
court or some other means. Rep. Jane Harman, the ranking Democrat on the 
House intelligence committee and one of the few people who know what the 
NSA program is, argues that it can be accommodated under existing FISA 
rules. Others favor amendments to FISA to better embed the program in 
law. Any of these approaches would be better than the administration's 
insistence that there isn't any legal problem at all.

The air was thick with historical analogies at Monday's session of the 
Judiciary Committee, but there's one that is actually worth studying. 
When the Southern states seceded in 1861, President Lincoln took radical 
-- and almost certainly unconstitutional -- steps to preserve the Union. 
He raised an army without legislative authority, blockaded Southern 
ports, arrested a Baltimore militia commander without charges in an 
effort to intimidate Maryland against seceding and, when the Supreme 
Court tried to block him, suspended habeas corpus.

But soon after taking these emergency steps, Lincoln went to Congress to 
seek explicit legislative authority for what he had done. "These 
measures, whether strictly legal or not, were ventured upon under what 
appeared to be a popular demand and a public necessity," Lincoln wrote 
in his July 4, 1861, message to Congress seeking retroactive legal 
authority. Lincoln told Congress he had done what he thought was his 
duty in using his war powers. "You will now, according to your own 
judgment, perform yours."

Lincoln did precisely what Bush has so far refused to do. He sought 
clear legislative authority for his actions, knowing that he could not 
win the Civil War except by building a national consensus under a sound 
legal canopy. "Lincoln never did anything to prove a point. He had one 
goal, which was to keep the Union together and win the war," says 
Garrett Epps, a visiting professor of constitutional law at American 
University. That unifying vision is one the Bush administration and its 
critics must embrace. Either there is a center line in the surveillance 
debate, or there is no line at all.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/07/AR2006020701262.html
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