The Power of Congress

Paul Mirengoff at Powerline takes the Washington Post to task for its analysis of the White House's legal defense of the NSA terrorist surveillance.

The Post does not accept the administration position that under the Hamdi ruling the Authorization of Use of Military Force authorizes the surveillance of international terrorist communications with persons in the U.S. without a warrant. The Post beleives that because unlike the Hamdi case, Congress had specifically legislated on this issue that the AUMF does not authorize the surveillance.

Unfortunately for the Post the specific legislation they say trumps the AUMF is FISA which contains an exemption for actions authorized by another statute.

Mirengnoff notes:

The Post stresses that if the administration's view is accepted, it would call into question Congress' ability to prevent the president from doing a host of things the Post does not want the president to do.

I have seen this argument in other places, that the President's actions and the subsequent legal defense are a usurpation of congressional and judicial authority. But This just doesn't ad up. Congress passed FISA, including its exception for actions authorized by statute. Congress passed the AUMF and the ruling of the Supreme Court in the Hamdi case acknowledges that the AUMF encompasses all incidents of war.

It would certainly seem that the White House is acting not in usurpation of congressional and judicial authority but under authority both bodies have acknowledge the president to possess. And if either of the branches desired limiting the president's authority in this area they should have done so in their legislation or rulings respectively.

Posted by: Stephen Macklin at 09:45 AM | No Comments | Add Comment