Thursday, March 02, 2006

FISA Controversy

""In his Feb. 6 Senate testimony on the president's secret surveillance program, Attorney General Alberto Gonzales argued, repeatedly, that federal agents must sidestep special warrant procedures established by Congress, because they are incredibly time-consuming. But this excuse doesn't stand up to scrutiny.

Gonzales was complaining about red tape created by the executive branch — a handicap of the president's own making. That's not a good basis for dodging judicial review of National Security Agency wiretapping.""

---------It certainly isn't. And here is the rest of the story.

Basically, the vesting of the Executive Power in the Office of the President seems to vest the President with inherent and plenary power. But this should be distinguished from arbitrary and absolute power. It is well understood that a President, in order to fulfill his duties, and by the very nature of his job and of the Executive Power, must have great leeway in the direction of his office. This is what the Founders meant when they said that the the desiderata of the Executive Power are, roughly, energy and responsibility, the former characterized by unity, secrecy, dispatch, competent powers, and duration of office and the latter characterized by limits on the same. Exactly how those limits are to work depends upon the context of the political situation and the climate of ideas, with some Presidents exercising power more vigorously than others. But the exercise of the Executive Power is not absolute nor outside the purview of the Congress primarily or the Courts to a lesser degree. Where the Courts or Congress infringe on the President's control over the Executive Branch, that is, how it will perform and who will perform, he may very well ignore their suggestions, laws, or rulings. But where the President claims power to pursue limitless action in any arena, including his own, without limit, the Congress and Courts are right to assert otherwise. And they both have the power to do so. The question is how, when, or even if they will. The Executive Power cannot encompass all the others without becoming tyrannical. At least, many great minds seem to think so.


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