Tuesday, April 11, 2006

Regulatees and Regulators (paca)

Somehow last night, while falling asleep, I was reflecting upon the old NSA wiretapping controversy. I recalled some comment from a talk radio silly man that "if you believe we are at war, then it all makes sense; if you don't, then it doesn't," as well as the rationale I have heard several times now that the U.S. censored mail between service men and their families in WWII, therefore wiretapping people not in the service now must be just fine. I decided to think through the possibilities.

The rationale for the NSA program that wiretaps domestic calls without warrants is that these abilities fall under the President's war powers as granted by the Constitution. So let's think about something that seems clearly beyond the pale. If the President as Commander in Chief is conducting a war with, say, Myanmar, does he have the legal right to send a team around to chop off the hands of small children in Iowa?

Seems to be a couple possibilities. 1) He does not have the right because there is an explicit law on the books forbidding it and that is the complete story. 2) He might have the legal right, despite such a congressional law, due to inherent constitutional authority. However, I think most would want to say that the constitutional power only grants such authority if the actions directly relate to conducting the war. He has authority to conduct a war, not do anything he pleases while a war is going on.

Let's pursue this. Unfortunately, actions don't come with little tags which say "war-related" and "not-war-related" on them. Someone has to decide this. Who? One clear possibility is the President. But this brings up gigantic problems. If the person who decides whether or not their actions are war related is the very person being regulated, then this is no regulation at all. One might say that the President is limited by losing the next election, but I think most of us want a little more constraint placed on the Presidency than absolute power for four years. So having the regulatee also being the regulator doesn't work. Who next could help make this decision? The logical possibility seems to be the judiciary, which is the branch explicitly set up to decide matters of constitutionality.

If that is right, then it seems we are back to where the controversy started. We grant that the Presidency has constitutional authority to conduct wars, but we need a mechanism to make sure that his conduct is in fact related to the war in a direct manner in order to rule out dumb things like in my thought experiment. But this is the very thing that the Executive is asserting is not required. They are refusing to have the judiciary monitor their war conduct despite the logic of it, and the fact that Congress has explicitly expressed its wish that the Executive do so with the FISA laws.

Should the Judiciary monitor every single action that the Executive makes in conducting a war? Of course not. They have to be focused on items that aren't obvious. Wiretapping domestically, when the courts have held up the rights of citizens to not be wire-tapped and when the Congress has required such monitoring, seems like something that would fall under these guidelines.

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