It would be laughable if it weren’t so deadly serious. The halls of Congress reverberated recently with those righteous constitutional words “separation of powers.” This cornerstone of our liberty pre-dates even the Constitution, and is enshrined in it. It says, simply, in the words of our Supreme Court, that one co-equal branch of government (the executive branch, i.e., the president, the Congress, or the judiciary) may not constitutionally act to “impair” the ability of another branch to carry out responsibilities assigned to it. As legendary Chief Justice John Marshall taught nearly 200 years ago, any attempt to do so is “void,” and, as a legal matter, is literally nonexistent.
One unschooled in the ways of Washington might hope in vain that Congress’s 11th-hour embrace of this fundamental concept involved a serious constitutional question, say, Congress’s attempts, through the Foreign Intelligence Surveillance Act (FISA), to “impair” the president’s ability to prevent terrorist attacks on our country. Indeed, 72 members of Congress, including House Judiciary Committee Ranking Member John Conyers, have weighed in on that question, which truly is a life-and-death one. Regrettably, their position, in a court filing in an ACLU case in Michigan attempting to shut down foreign- intelligence collection against terrorists, amounts to little more than an assertion that the president’s constitutional authority is “legally tenuous.” (Full disclosure: I co-authored a brief in that case (available at www.morgancunningham.net/), filed on behalf of the Washington Legal Foundation, that argues if FISA, as applied to the facts and circumstances of the NSA Terrorist Surveillance Program, impairs the president’s ability to carry out his unique constitutional responsibility to protect us from attack, FISA itself is unconstitutional and not binding on the president.) Recall that senators and congressmen on both sides of the aisle very recently have openly scorned the separation-of-powers notion that any president could possess constitutional authority which Congress cannot, by statute, extinguish, with some even calling the president a “criminal” for using his constitutional authority to protect us.
But, of course, Capitol Hill’s late-coming constitutional outrage does not involve our national security. Instead, the matter of grave constitutional moment on which Congressman Conyers and others on both sides of the aisle made their stand, with Conyers angrily asserting that the executive “crossed a constitutional line,” is–wait for it–the FBI’s execution of a search warrant, approved by our courts, against a member of Congress, according to press reports, in whose freezer the FBI already had found nearly $100,000 in foil-wrapped cash, and who was videotaped accepting a bribe for a similar amount. This–not protecting our country from attack–is where Conyers, and others on both sides of the aisle, have chosen to make their constitutional stand.
As has often been said about Washington, “where you stand depends on where you sit.” Fence sitting, or worse, on vital national-security programs to save another 3,000, or 300,000 of our people from death, while standing tall to protect apparently corrupt congressmen from court-approved search warrants, redefines hypocrisy. It’s breathtaking. It would be hilarious if our lives weren’t at stake.
Don’t get me wrong. I’m profoundly glad Congress has taken this courageous stand, for two reasons. First, it lays bare that the fight over the Terrorist Surveillance Program is not about which side of the aisle you’re on, but about the end of Pennsylvania Avenue on which you are. The so-called “bipartisan” outrage about the NSA program comes down, essentially, to petulance at the notion that any president could ever decline to execute each jot and tittle of any law Congress passes, even if, as has been amply demonstrated, that law is hopelessly behind the technology and threats we face today, and very likely unconstitutional. Second, maybe, just maybe, a few of the righteous members of Congress now frantically screaming “separation of powers” will apply it in a context that isn’t at all laughable, and support the constitutional authority of the President to protect us all from another 9/11. Our lives and, given that one likely target for United 93 was the U.S. Capitol, their own, may depend upon it.
–Bryan Cunningham, a principal in the Denver law firm of Morgan & Cunningham LLC, served for six years in the Clinton administration, as assistant general counsel to the CIA, and as a federal prosecutor, and, from 2002-2004, was deputy legal adviser to the National Security Council.