Hypothetical: What If President Bush Were Correct About His Surveillance Powers?
posted by Daniel Solove
There’s been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance “for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.”
Suppose the President is right that he has the power to do this based on his “inherent authority” as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can’t authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.
Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President’s logic, he could still say that his “inherent authority” allows him to ignore it.
The problem with Bush’s argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren’t just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.