Tom Daschle has just put the lie to one of the Bush administration's claims about the legality of the president's warrantless spying program.
The White House argues that George W. Bush had the authority to order warrantless spying on Americans as a result of his inherent power as commander in chief and as a result of a 2001 congressional resolution authorizing him to use force against al-Qaida. Although the use-of-force resolution doesn't say a word about warrantless surveillance, the White House argues that such activities are necessarily a part of using force against those who attacked the United States on 9/11, and that the use-of-force authorization must be read as implicitly eliminating the need to comply with the warrant procedures required by the Foreign Intelligence Surveillance Act of 1978.
But in an Op-Ed piece in today's Washington Post, Daschle makes a compelling case for why the 2001 use-of-force authorization can't be read that way. "Literally minutes" before the Senate voted on the use-of-force authorization, Daschle says, the White House asked him to insert into it language that would have allowed the president to use his use-of-force authority "in the United States." "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens," Daschle said. "I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
The significance of it all: Even if you assume that spying is part of the "force" Congress authorized Bush to use in 2001, Congress drew a line at the U.S. border. The White House asked for powers within the United States, and Daschle said no. Thus, you can't read into the use-of-force authorization some kind of implicit permission to do things within the United States when the White House explicitly asked for such authority and Congress declined to grant it.
Or, as Daschle puts it: "If the stories in the media over the past week are accurate, the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11."