The real arguemnts in the wire taping debate

In law school I learned that it is important to provide multiple arguments so that if one argument is rejected there are still others that need to be considered. This might be true in the abstract, or when standing before a judge, but in the real world it is confusing and can make people lose sight of your strongest argument. That is exactly was is happening right now in the New York Times’s desperate attempt to find some impropriety in President Bush’s wiretapping of conversations between US citizens and foreign terrorists. The President quickly came out with a defense based on common sense, statutory authority and the Constitution. Liberals were quick to attack the statutory and common sense arguments, and they have been successful in making sure that the bulk of the media attention focuses on these secondary arguments. Even talk radio hosts have fallen into this trap. While I personally believe the common sense argument to be, well, common sense I admit that the statutory argument is open for debate. However, the Constitutional argument has a long pedigree in American history and is by far the strongest argument. The argument that the President has sweeping powers under the Article Two of the US Constitution, which states "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States" is an argument that has accepted and argued by most (if not all) President’s in US History. It is a subject, which may be open to vigorous debate, but for the President to stand with his peers in a broad interpretation of Presidential war powers is certainly not a criminal act.

One we have established that the corner stone of this argument is the President’s constitutional authority we can move on to common sense arguments. The role that common sense arguments should play in this debate is whether or not common sense would dictate that Article 2 of the U.S. Constitution gave the President the right to act in this matter. The common sense argument that the President has a pragmatic need to wiretap these conversations and that in doing so he saved American lives should be the second step of an argument aimed at proving that the President had constitutional authority to act in this manner. It is a mistake to try and set the "common sense" argument on the same level as the Constitutional argument, it is a mistake that has given Liberals a chance to argue. Conservatives need to come out strongly arguing that the President had constitutional authority and make it very clear that common sense and necessity are proofs in this larger argument and not arguments in and of themselves.

It may come as a surprise, but I am glad that Congress is trying to fight the President on this issue. I think it is for the good of the country that the branches of government always try to limit the power of the other branches of government. But this should have been done in secret and it was unconscionable for this program to leaked to the media. Any benefit that might have come from the separation of powers and checks and balances cannot compare to the harm that was done by leaking this information.

The problem is not that Congressmen are trying to fight against the President for position or power. I expect Congressmen to claim that they have power and that the executive lacks power. When our founders designed a government based on checks and balances they hoped for this exact occurrence. They hoped that each branch of government would try to exercise the fullest extent of their powers and that the other two branches would try to stop them, in order to gain that power for themselves. The founders were afraid of vesting too much power in any one branch so they set up a system by which each branch would attempt to gain power by taking away the power of another branch. Any law that congress passed which seeks to limit the President’s ability to wage war is an attempt to legislate victory in this battle. Such attempts should be viewed with extreme skepticism and must be held up to arguments that the are unconstitutional. The problem is that the media has decided to back Congress in this fight and to misrepresent the facts to make it seem like it is clear that the President is in some way breaking the law.