Late last week, Attorney General Alberto Gonzales published a white paper for Congress, detailing his legal defense of Bush’s warrantless-search program. Predictably, it emphasized the president’s broad authority over national security matters.
As it happens, however, it may have helped to further highlight just how expansive a view the administration is taking.
A footnote in Attorney General Alberto R. Gonzales’s 42-page legal memo defending President Bush’s domestic spying program appears to argue that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law’s investigative powers against terror suspects.
The memo states that Congress gave Bush the power to investigate terror suspects using whatever tactics he deemed necessary when it authorized him to use force against Al Qaeda. When Congress later passed the Patriot Act, Bush already had the power to use enhanced surveillance techniques against Al Qaeda, according to the footnote.
Thus, legal specialists say, the administration is asserting that Bush would be able to keep using the powers outlined in the Patriot Act for Al Qaeda investigations, regardless of whether Congress reauthorizes the law.
”It turns out they didn’t need the Patriot Act for dealing with Al Qaeda after all,” said Martin Lederman, a former Justice Department lawyer in the Clinton administration who now teaches law at Georgetown University.
Dennis Hutchinson, a University of Chicago law professor, and Bruce Fein, a former Justice Department lawyer in the Reagan administration, also said the administration’s footnote indicates that Bush would not need Congress to renew the Patriot Act to keep using its investigative powers in the war on terrorism.
It gets to the point a reporter was raising with Scott McClellan last week — if Bush has decided his war-time powers are so broad on national security issues, Congress’ “laws” aren’t terribly relevant. Extend the Patriot Act, expand it, or let it expire; the president apparently believes he can do as he pleases so what does it matter?
As Fein, who is a conservative, explained, ”Under the position they are staking out in the footnote and throughout the memo, the debate over the Patriot Act is superfluous. ‘The president is flailing Congress for refusing to act on a matter that he says is irrelevant to the war anyway, because he can do all of these things under the authorization to use military force.”
As Al Gore recently put it, if the president has already given himself such sweeping authority, “[T]hen what can’t he do?”