Administration Defends NSA Program

On the heels of yesterday's CRS opinion on the NSA domestic surveillance program, the Bush administration continues to defend the program:

The legal justifications were laid out in a 42-page white paper sent to Congress yesterday by Attorney General Alberto R. Gonzales. The administration has offered many of the same arguments orally in defending the program since its existence was disclosed last month.

For example, Gonzales asserted that the president's power to protect the country with surveillance was reaffirmed when Congress passed a resolution in October 2001 that authorized the president to use military force against al Qaeda and to deter future terrorist attacks.

I honestly don't know how they can keep repeating this. Some members of Congress have already said they did nothing of the sort, and former Senator Tom Daschle has explained to us how Congress specifically refuted this authority when they crafted the authorization. In truth though, this argument is really window dressing for the main argument:

The Justice Department also argues that the inherent presidential powers in Article II of the Constitution -- to wage war -- cannot be abridged or impended in the context of a global terrorism fight. Justice lawyers say they believe that the president's powers are consistent with FISA but that if there is any question of a conflict, the president's powers trump FISA.

And that's the real meat of the argument. Essentially the President is claiming to have the authority to do anything that relates to his constitutional authority to wage war. And of course what is and is not allowable is up to the President. Now to assert such a thing means the President regards domestic surveillance of American citizens as an act incident to war. But that's stretching the definition of war quite a bit. Even if you agree that the "war on terror" is in fact a "war"-which I don't-it's hard to characterize internal surveillance of American civilians as an act of waging war. Especially when the present law already provides for such a thing as an action of law enforcement. Unfortunately for the Bush administration this is the best they can do, as there really is no other argument for this program.