The Senate Hearing on NSA Surveillance

Attorney General Alberto Gonzalez is before a Senate panel today, testifying on the legality of the NSA's eavesdropping program. Gonzalez is still primarily relying on the argument that the nation is at war and that the congressional authorizations to use military force against al-Qaeda in Afghanistan and Iraq are sufficient legal authorization for the domestic spying. I do not find this logic persuasive and I do not believe that the Supreme Court (if and when this case gets there) will either.

There is a difference between a declaration of war and an authorization to use force that is significant and relevant, and it would be, in fact, counter-productive for the administration to go to far down this path. Congress is clearly and explicitly given the power to declare war by the Constitution. The president is clearly and explicitly given the power to command the nation's armed forces in the role of commander-in-chief. Even in the face of the War Powers Resolution, president after president has claimed authority to deploy force, even in the absence of a formal declaration of war or even congressional authorization, to meet the demands of national security.

Now, the administration is arguing that an authorization of force is the same thing as a declaration of war. This seems to limit, rather than expand, the president's authority to deploy military force, as it expands the definition of "declare war" beyond what presidents have previously accepted. This strategy, seems to me, to be extremely short-sighted. The congressional-executive war powers balance has evolved through the twin precedents of presidents claiming more power and Congress ceding its responsibility and acquiescing to the presidents' claims. President Bush is giving some of that ground back to Congress, setting the stage for a more aggressive Congress to possibly assert that, in an expansive view of congressional war powers, it should have authority, a la the War Powers Resolution, to oversee each and all deployments of US troops abroad.