Tuesday
VI
So the FISA/NSA intercepts story is really fascinating and exactly the kind of thing which I shouldn't be reading about during the last couple days of my exams. But I can't resist, so I just read everything Dan Solove, Marty Lederman, Orin Kerr, and Juliette Kayyem have written on the topic, and Senator Rockefeller's 2003 letter to the President about it (most of those posts link to each other as well, it's a nice example of the incestuousness of the elite blogs and all that (kidding)). Not satisfied with that, I continued on to read a not particularly good op-ed on the topic, by Bill Kristol and Gary Schmitt, which will appear in tomorrow's Washington Post.
I don't want to critique their full argument right now, but rather note one odd phrase which led me to two possible conclusions:
1) This op-ed was written very hastily and they didn't really think about all of what they were writing (this is the charitable interpretation).
2) They don't have a very good grasp on what the Constitution of the United States is.
The full sentence which bothers me is, "It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional." What's wrong with that sentence? The constitution isn't some amorphous entity floating around outside the law, it is instead the supreme law of the land. As far as I know, powers are not simultaneously "extralegal" and "constitutional." Instead, if the constitution, as the supreme law, grants a power to the President without subjecting that power to legislative limitation, any law purporting to limit that power is unconstitutional.
Now, as it happens, it's quite insane to think that the constitution gives the President of the United States a power, illimitable by the legislature, to listen in on every conversation between any person legally in the United States and any person outside of it. But if that's what Kristol and Schmitt are trying to say (and it is), they aren't saying the President has an "extralegal" power, they're saying that the law of the Constitution forbids Congress from passing other laws which take away that supposed power.
Update: I just noticed that Josh Marshall also read their op-ed. He doesn't like it much either, but he does quote himself using the term "extra-constitutional" in the past. This was temporarily worrisome, but fortunately, there is no conflict at all with what I said about "extralegal but constitutional." Instead, he's talking about the possibility of a President having a moral obligation which he doesn't feel he can set aside but which he recognizes is illegal because the Constitution forbids. He says that in this situation it might be the case that the President should violate the Constitution and then throw themselves on the mercy of the public.
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I don't want to critique their full argument right now, but rather note one odd phrase which led me to two possible conclusions:
1) This op-ed was written very hastily and they didn't really think about all of what they were writing (this is the charitable interpretation).
2) They don't have a very good grasp on what the Constitution of the United States is.
The full sentence which bothers me is, "It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional." What's wrong with that sentence? The constitution isn't some amorphous entity floating around outside the law, it is instead the supreme law of the land. As far as I know, powers are not simultaneously "extralegal" and "constitutional." Instead, if the constitution, as the supreme law, grants a power to the President without subjecting that power to legislative limitation, any law purporting to limit that power is unconstitutional.
Now, as it happens, it's quite insane to think that the constitution gives the President of the United States a power, illimitable by the legislature, to listen in on every conversation between any person legally in the United States and any person outside of it. But if that's what Kristol and Schmitt are trying to say (and it is), they aren't saying the President has an "extralegal" power, they're saying that the law of the Constitution forbids Congress from passing other laws which take away that supposed power.
Update: I just noticed that Josh Marshall also read their op-ed. He doesn't like it much either, but he does quote himself using the term "extra-constitutional" in the past. This was temporarily worrisome, but fortunately, there is no conflict at all with what I said about "extralegal but constitutional." Instead, he's talking about the possibility of a President having a moral obligation which he doesn't feel he can set aside but which he recognizes is illegal because the Constitution forbids. He says that in this situation it might be the case that the President should violate the Constitution and then throw themselves on the mercy of the public.
