George W. Bush took another shot at defending his warrantless spying program this morning, saying once again that Congress gave him the authority to initiate the secret program when it passed its use-of-force authorization in 2001. That authorization gave the administration "the power to conduct this war using the incidents of war," Bush said. "Congress says, 'Go ahead and conduct the war, we're not going to tell you how to do it.'"
That may be how the White House interprets the use-of-force authorization now, but it wasn't how it viewed it back in 2001.
As the nonpartisan Congressional Research Service has explained, the White House initially proposed a use-of-force authorization that was much broader than the one Congress ultimately approved. In the original White House version, the president would have been given authority to use "all necessary and appropriate force" to "deter and pre-empt any future acts of terrorism or aggression against the United States." As CRS has said, that language would have "seemingly authorized the president, without durational limitation, at his sole discretion" to take military action against anyone anywhere in the name of preventing terrorism. Congress balked at such a broad grant of authority, rewriting the White House draft in such a way that made it clear that the president could use such force only against those who attacked the United States on 9/11 or were materially involved in helping or harboring them.
As that draft was about to go to the Senate floor for a vote, the White House tried one more time to broaden the scope of the resolution. As then Senate Majority Leader Tom Daschle has explained, the White House came to him on the eve of the vote on the resolution to ask for additional language that would have authorized the president to use force "in the United States" as well as outside of it. Daschle refused. "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 explained last month. "I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
In light of this legislative history, it's clear that Congress didn't write Bush a blank check for conducting the war however he saw fit -- and that the White House didn't think that the president was getting that kind of authority at the time Congress was acting.
But the president doesn't seem much concerned with history of any sort. He said today that prior presidents have also believed that they had the power to do what's necessary to keep the country safe; it was apparently a reference to the White House's discredited "Clinton did it, too" argument. And Bush stressed that the Foreign Intelligence Surveillance Act -- in which Congress set forth clear standards the White House has ignored -- was passed way back in 1978. "We're having a discussion in 2006," the president said. "It's a different world."
Maybe that's right. A lot has changed since the late 1970s, but acts of Congress don't expire just because time passes or the world changes. The White House failed in its attempts to get broader authority from Congress in 2001, and it rejected an effort to ease the FISA rules in 2002. Having done so, it's in no position now to argue that the president was free to ignore the law because it was out-of-date or obsolete.
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