Monday, January 09, 2006

PATRIOT Act--who needs it?

This post came about as a result of an interesting conversation I had at work the other day. I work with some pretty bright people (not myself, of course--but I do listen to some of the 10-lb brained people talk), and for one reason or another we got on the topic of the PATRIOT Act. My friend, who in my opinion sits well on the left of the political spectrum but describes himself as a "McCain Republican" (either I'm WAAAAY right or this guy is delusional. . .or maybe I'm waaay right AND delusional) was talking about how the Executive of this country does NOT have unlimited means to defend this country from attack--that not only is Congress able to establish limits on Executive Authority in this arena, it has done so successfully several times. He uses the War Powers Act and the PATRIOT Act as evidence of his assertion.

I didn't have the facts about the WPA at my fingertips, but when he described it's essential thrust to me, my first take on it was "well, that's an unconstitutional limitation of the President's Constitutionally-derived authorities and responsibilities"! It is true that the WPA is the current law of the land, enacted over the then-sitting President's (Nixon) attempt to veto the legislation. However, the WPA has never, to my knowledge, been tested in the courts. It would be interesting to see on which side of the issue the courts would fall. . .

But anyhow, on to the PATRIOT Act: the basic thrust of my argument was that if necessary, the Executive could continue using effective gathering tactics that were specifically authorized by PATRIOT EVEN IN THE ABSENCE of such legislation. My stance was anchored by the general knowledge that the Executive is responsible for the defense of this country and its citizens, both at home and abroad. For example, if the PATRIOT Act authorized the use of techniques X,Y andZ AND techniques X,Y and Z had proven particularly adept at gathering intelligence that had demonstrably helped protect the security interests of this country, then the President has the authority (under the banner of "defense of the country") to continue using X,Y and Z even if the Act that initially authorized their use was no longer in effect. My only problem with this argument: finding where it is written in either the Constitution or case law that the Executive is primarily responsible for the defense of the country.

After looking at both Article I and Article II of the Constitution , I wasn't totally confident that my argument was valid. On-the-side reading about "vested" powers looked promising, but since I'm not a Constitutional scholar (nor are any of my friends--they're not THAT smart!) I didn't think that line of reasoning could carry the day. Forced to be resourceful, I got crazy and actually looked at the handiwork of Congress in the recent past to see how "authority for the defense of the country" is being practiced today.

Enter: Senate JR 23 of 2001, also known as the Authorization for use of Military Force in Iraq. Right there, at the end of the preamble, appears the following: ". . . the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States".

WOW! I didn't know that the forefathers even thought about international terrorism, much less had I been able to find such writings in the Constitution itself (clearly this authority is derived from case law--I'm on a hunt to find the applicable case/cases). BUT. . there it was, part of a joint resolution that was passed resoundingly by both houses of Congress, stating that the President had Constitutional authority to prevent acts of terrorism against the U.S.. It stands to reason that if X,Y and Z are effective at gathering information that helps prevent acts of terrorism, then the Executive has the authority to continue these tactics even if they are absent from another specific authorization from Congress.

While "effective" might be a difficult standard to prove if called into a hearing or something like that, I would like to think that there have been some successes in this war that were due to identifiable elements of the PATRIOT Act, and that some of these successes are quantifiable. Further, I would like to think that faced with evidence of these successes, all but the most partisan of politicians would admit that a certain tactic (or tactics) actually are protecting this country--and maybe even behind closed doors, some of the most shrill of the Democratic caucus would be willing to grudgingly accept some of the successes we've enjoyed in the last few years. But the Dems never do cease to amaze me. . .

P.S. Despite my reference to the AUMF above, I agree with the opinion as expressed by others that said document in and of itself does not provide authority for actions such as the NSA intelligence gathering that has been in the news so much lately--rather, it is the Constitutional powers resident in the Executive (and referred to in the AUMF) that justify such activities.


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