Conservatives Should Be Americans First, Conservative Second

Why Didn't He Ask Congress?

By George F. Will
Tuesday, December 20, 2005; Page A31

The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could?

Presumably the argument is that the president's implied powers as commander in chief, particularly with the nation under attack and some of the enemy within the gates, are not limited by statutes. A classified legal brief probably makes an argument akin to one Attorney General John Ashcroft made in 2002: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Perhaps the brief argues, as its author, John Yoo -- now a professor of law at Berkeley but then a deputy assistant attorney general -- argued 14 days after Sept. 11, 2001, in a memorandum on "the president's constitutional authority to conduct military operations against terrorists and nations supporting them," that the president's constitutional power to take "military actions" is "plenary." The Oxford English Dictionary defines "plenary" as "complete, entire, perfect, not deficient in any element or respect."

The brief should be declassified and debated, beginning with this question: Who decides which tactics -- e.g., domestic surveillance -- should be considered part of taking "military actions''?

Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue.

But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president's plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism," and it had authorized "all necessary and appropriate force" against those involved in Sept. 11 or threatening future attacks.

For more than 500 years -- since the rise of nation-states and parliaments -- a preoccupation of Western political thought has been the problem of defining and confining executive power. The problem is expressed in the title of a brilliant book, "Taming the Prince: The Ambivalence of Modern Executive Power," by Harvey Mansfield, Harvard's conservative.

Particularly in time of war or the threat of it, government needs concentrated decisiveness -- a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power.

Modern American conservatism grew in reaction against the New Deal's creation of the regulatory state, and the enlargement of the executive branch power that such a state entails. The intellectual vigor of conservatism was quickened by reaction against the Great Society and the aggrandizement of the modern presidency by Lyndon Johnson, whose aspiration was to complete the project begun by Franklin Roosevelt.

...and there you have Mr. Will's real argument. He is being a "Conservative." That's well and good Mr. Will, I too am a Conservative, but (and this is the difference between you, Buchanon, and the like, and me) I am an American first. I believe that the American nation, culture, and governmental philosophy must survive. I believe in the inherent "rightness" of America and our unique form of government. I also believe in individuals, not just generalities. This is an act which would disturb me greatly had Lyndon Johnson or some other Liberal pursued it, but I am not afraid of George Bush. I do not fear that he has some higher ambition of power. He has proven himself to be a man of moderate temperment and ambition. So excuse me if I tolerate this mild imposition, (I have no al Qaeda contacts to be concerned about, do you?) while George W. Bush is in office, WE ARE AT WAR. Call back later after it is over.

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