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Wednesday, January 25, 2006


JONATHAN ALTER AND HIS FUZZY LEGAL REASONING 

Jonathan Alter was not entirely clear when discussing a Supreme Court case on presidential authority

Jonathan Alter likes to talk about the wiretapping story as a potential "constitutional crisis" and the grounds for the possibility of presidential "impeachment."

Alter wrote a column in this week's Newsweek in which he brought up Justice Robert Jackson and the famous Youngstown Sheet case involving President Truman...

I wasn't expecting Alito to say whether he thought that President Bush broke the law when he admitted authorizing warrantless wiretaps on American citizens, which is a clear violation of the 1978 Foreign Intelligence Surveillance Act (FISA). Alito is right not to comment on a specific case that, with any luck, will soon go rocketing toward the Supreme Court. I can even understand why he failed to offer an opinion on why Bush didn't simply seek to amend FISA (which Congress would have eagerly done after 9/11) if he believed his tools for catching terrorists were insufficient.

Even so, the nominee's "no person is above the law" platitudes did not suffice. Alito endorsed a famous 1952 concurring opinion from Justice Robert H. Jackson that the president's power is at its "lowest ebb" when he operates without congressional authority (the case involved whether President Truman could seize steel mills during the Korean War). But we never heard whether the brainy New Jersey jurist believes (like Bush) that the Constitution entitles the president to break the law in wartime.


However, Alter has to be more careful when he is discussing Jackson's famous concurrence. Discussing how a president operates "without" congressional authorization is a tad misleading because "without" can either signify silence or expressed proscription, on the part of Congress, when dealing with a relevant issue.

Jackson wrote that there were 3 ways to analyze a president's powers in regards to power that conflicts with that of Congress. 1) When the president acts under implicit or explicit authorization he is operating with authority "at its maximum." 2) Congress is silent on the issue. The silence creates a "zone of twilight" and the outcomes of controversies are "likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law" and 3) The president's power as its lowest ebb because he is defying Congress.

So, using Alter's terminology, "without congressional authority", do you apply the 2nd or 3rd scenario? The term "Without" can either signify the "zone of twilight" or that the president is defying "the expressed or implied will of Congress."

Alter likes to think that the Bush administration's program of monitoring communications between terrorists abroad and our homeland is a "power grab." He thinks the NSA intercepts mean that "our whole system" is imperiled.

However, members of Congress were briefed on the program from the very start. Anonymous leakers told the NY Times about the program during the 2004 presidential campaign but no one objected about the program until it was finally revealed last month. Yet no one is advocating the program stop, immediately. And finally, the Bush administration has acknowledged the existence of the program since it was uncovered. Plausible arguments can be made in favor of the NSA program - it's legality is not as stark as Alter makes it out to be.

Alter chooses to ignore what are the salient issues when a president is exercising his constitutional authority as commander-in-chief. If Jonathan Alter thinks all this public debate about how to stop terrorists in their tracks is an indication that our country is in mortal danger he should change the name of his column from "Between the lines" to "Chicken Little."

Jonathan Alter A Power Outage on Capitol Hill

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