Wampum

Today's New York Times article on warrant-less domestic spying includes the following:

The latest Republican to join the growing chorus of those seeking oversight is Senator Lindsey Graham of South Carolina.

In an interview on "Fox News Sunday," Mr. Graham, a former military prosecutor whose opinion on national security commands respect in the Senate, said he believed there was now a "bipartisan consensus" to have broader Congressional and judicial review of the program.

"I do believe we can provide oversight in a meaningful way without compromising the program," he said, "and I am adamant that the courts have some role when it comes to warrants. If you're going to follow an American citizen around for an extended period of time believing they're collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made."

What a novel idea. I can envision just how that would work. As to the requirement of judicial review, under Senator Graham's leadership, Congress could pass a law that requires the President to obtain a warrant before wiretapping Americans. We could even call the new statute the Foreign Intelligence Surveillance Act, or FISA. It would contain the exact language of the current statute with one additional section that merely says, "this time we really mean it."

As for congressional oversight, perhaps a statute that says that
all members of the Congressional Intelligence Committees have to be briefed on any domestic spying would be appropriate. We could call that the National Security Act. Once again, the Congress would have to add the section saying that this time, they really mean it.

At the core of the problem with the Graham idea is that the White House is asserting that it has the right to conduct warrant-less domestic spying regardless of what the Congress says. That makes Congress an inappropriate forum to correct the problem.

The White House claims that it is vested with the exclusive power over the subject matter by the Constitution. It claims the power to simply ignoreany legislation Congress may pass and do what it wants. Short of impeachment, Congress simply is not equipped to limit executive action.

Thus, we have a potential issue of the meaning of the Constitution. The proper forum for resolution of such issues is the Court system. Arlen Specter is urging the administration to submit the issue to the FISA court to find out what the law is. The administration has no interest in doing so as the Courts are the only branch with the power to declare what the law is, and, therefore, to limit executive action. In order to get a resolution of the proper constitutional role of the Congress and the Executive branches in this area, a way needs to be found to force the administration into court.