Checks and Balances: Presidential Prerogatives Stand Pat
By Alan Nathan
January 6, 2006

Democrats are trying to lob political bombs at President Bush because he authorized the warrantless NSA spying on terrorist suspects in the United States. Unfortunately for them, their munitions expert appears to be the wild coyote from "Road Runner."

The rub seems to be surrounding this question: Is Mr. Bush's license to collect foreign intelligence ever diminished simply because enemies abroad wish to seek legal protection behind a domestic partner in terror? In the following cases, all courts agreed that the president has the inherent authority to conduct these wiretaps for foreign intelligence gathering purposes and that said authority includes agents who exist within the environs of the United States: United States v. United States District Court, 407 US 297 (1972) known as "The Keith Case"; The United States v. Troung Dinh Hung (1980); and, in re: Sealed Case (2002) heard by the Foreign Intelligence Surveillance Appellate Court.

Neither Congress nor the judiciary can remove this repeatedly court-recognized "inherent authority" granted to the president under the Constitution, just as the president cannot remove any of their powers guaranteed by that same great document -- save through an amendment. It may not be done through court ruling or legislative statute.

When called upon, all intelligence organizations in the United States are structured to operate in conjunction with the military and accordingly become an integral part of the president's domain as commander-in-chief. Congress voted for the Sept. 14, 2001, war resolution invoked under the War Powers Act of 1973, authorizing the president to use force against "all nations, organizations or persons" he believes to be a part of the enemy who attacked us on September 11.

Given that the battleground includes this country, where the attacks were made, Democrats and Republicans objecting to his actions will be hard pressed to find him derelict in his duty just because he had the nerve to be in compliance with their orders.

Once the president is armed with a war resolution, Congress and the judiciary have no more right to micromanage the commander-in-chief than does the president or Congress to overrule a Supreme Court justice following their respective nomination and confirmation of him to the bench. Congress' legitimate right to oversight does not a subordination of the commander-in-chief make.

"What about the checks and balances maintained through that congressional oversight," cry the critics. Not to worry, they haven't gone anywhere -- but understand what they mean. "Checks and balances" are pre-drawn constitutional boundary lines ; they are not an entitlement for one branch to stop another from doing that which the first doesn't like. There's a difference between overstepping one's power versus overstepping another's wishes.

Often the raw power that any of the three branches might use will be to an extent that the others detest while still being within those boundary lines. Congressional oversight authority only serves as a vehicle whereby they can determine whether or not to continue supporting the war effort. It does not grant them the least infinitesimal authority over the prosecution of that war. They don't get to tell him which hill to take, bridge to cross, building to destroy or phone to be tapped necessary for discovering how to target that hill, bridge or building. If they don't like the way he's waging war, they can play their "checks and balance" card by pulling the war resolution -- they don't get to be the surrogate commander-in-chief while he's executing that war.

On my show I've been criticized for referring to our own terra firma as a battleground because of the expanded credence it would appear to grant the president. But on September 11, I became the first member of the media to report the attack on the Pentagon over the radio airwaves. I was on the phone with Burston Taylor, press secretary for then-House Majority Whip Roy Blunt -- currently the majority leader. While driving north on Interstate 395 and talking with her about the attacks in New York, I watched American Airlines Flight 77 dive into the west side of our country's military headquarters. I told Burston what happened and then immediately called into my network, Radio America, and conveyed the news over the "Doug Stephan's Good Day Show."

The plane's impact was thunderous and its fire ball immense in both height and breadth. A collection of us pulled over to the service lane to better observe the consequences of al Qaeda's assault. It's a very different experience to witness terrorism live with all five senses as opposed to viewing it through the clinical filter of a television screen.

Three years later, while broadcasting "Battle Line" from Radio Row at the Republican National Convention in New York, I would learn from guest Mr. Blunt that my call with his press secretary had triggered the evacuation of Capitol Hill.

As long as the current threat exists, any morning can be September 11. If folks aren't fond of Mr. Bush treating our country like the battleground it is today, then let him do his job so that it's not one tomorrow.