Thursday, February 09, 2006


The role of Congress and the courts...a primer

David Broder's column in today’s Washington Post quotes Senator Graham (R-SC) on the NSA surveillance matter.

“As for the administration's contention that Bush has "inherent power" as chief executive to order warrantless wiretaps, Graham said, "Its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out. It deals the courts out."”

It deals the courts out? The Senator is an ostensibly bright person so I’m thinking maybe he is just being purposely obtuse on this issue (and, despite its impression on Mr. Broder, the Senator having been a military lawyer in a prior life is a factoid of no particular significance in this issue). But just in case he is genuinely confused on this matter, let me simplify it for him:

The courts have NO constitutional role when it comes to executive decisions in time of war. NONE! Congress declares war & Congress funds the war effort. The president, as the Commander-in-Chief, wages the war….and that’s it.

Should the president stray from the waging of war unto purely domestic matters then the math here changes. So far, however, there is absolutely no evidence that this program has so strayed (and, for the record, disdain for this administration is not evidence).

I'm not a huge fan of inter armes legea silent, so I don't entirely agree that the courts have zero role in the conduct of war. Clearly they do: if the executive's war policies infract on Constitutional gurantees, that is absolutely (and clearly) a matter for the Court; we might not much like what John Murtha has to say, but we can say that if the Bush administration detained him indefinitely without charge for his comments, he obviously retains the right to sue in Federal Court. Much the same goes for statutory challenges. If the search program violated the Fourth Amendment (which, for reasons offered by Prof. Kerr at the Volokh Conspiracy, I think unlikely), that would absolutely be an issue for the courts. A state of war is not a free pass.
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