On The Front Lines
Rutherford Institute President Voices Concern Over NSA Surveillance Authority, Urges Congress to Rein in Presidential Powers
CHARLOTTESVILLE, Va. -- In a memorandum to members of the Senate Judiciary Committee, which is holding hearings starting today on wartime executive power and the National Security Agency's surveillance authority, John W. Whitehead, president of The Rutherford Institute, has called on Congress to clarify the extent of the executive branch's wartime powers and its authority to conduct warrantless surveillance on American citizens as part of the Bush Administration's war on terror. A copy of Whitehead's memorandum is available here.
"Clearly, protecting America's homeland is important. We all have a legitimate desire to expect our federal government to protect us from terrorists and other foreign enemies," said Whitehead. "However, the structure of the United States Constitution simply fails to support any notion that the President has unfettered--or even more than slightly limited 'inherent'--wartime powers. Thus, it is Congress' duty to act, as the Founders envisioned, as a check on the President's power."
The Bush Administration has maintained that the executive branch has inherent power under federal law and the U.S. Constitution to sidestep federal legislation and use the National Security Agency for domestic electronic surveillance. Specifically, the Administration claims that the President as commander-in-chief has the vested authority to conduct warrantless surveillance on the telephone calls and e-mails of American citizens in an effort to preserve the safety and security of Americans. The Bush Administration claims it has an absolute right to bypass federal law and, arguably, the Fourth Amendment while insisting that Congress has no authority to stop it from doing so. The Administration's legal advisors point to Article II of the Constitution, referencing the President as the commander-in-chief, and a congressional joint resolution drafted on September 14, 2001, authorizing the President to use all necessary and appropriate force in the war against terror, as justification for its decision to conduct warrantless electronic surveillance on unsuspecting Americans. However, Whitehead points out in his memorandum that the Bush Administration's arguments advocating such executive wartime powers are flawed in that they ignore the governmental system of checks and balances embodied in the separation of powers doctrine, they fail to acknowledge prior U.S. Supreme Court precedent regarding excessive presidential wartime authority and they fundamentally undermine American civil liberties, namely the Fourth Amendment to the Constitution. Whitehead also provides some suggestions for ways in which Congress might restore balance and harmony to the federal government. As Whitehead notes, "Unlike the American citizens and the federal courts, Congress is in the best position to reestablish the balance of power detailed in the United States Constitution."
