Commentary

Stop the Blame Game

This article appeared in the Orange County Register, March 2, 2006.
The President claims that his NSA surveillance program isn’t reviewable by courts. The ballot box, not the gavel, is the only check on presidential national security policy, he says. But there’s an overlooked problem with that argument: Effective voter oversight of the president requires some judicial oversight of presidential security policy.

To see why this is so, start with the president’s arguments for the NSA program. He justifies it by claiming unilateral constitutional power to adopt security policies contrary to those of courts and Congress. Let’s assume that’s right. What effect does his theory have on voter oversight of national security policy?

One might expect a White House that wants ultimate say-so on foreign affairs to insist on taking sole responsibility for error. That would clarify matters for voters. The buck stops at Bush’s desk. He reaps full reward for success and pays the whole price for mistakes.

But it turns out the president can have his cake and eat it too. Even as he asserts unilateral power over national security, he remains free to dodge voters’ ire by blaming Congress. Consider exhibit A: In December 2005, the 9/11 commission issued its final report card. It gave “more F’s than A’s” to the administration’s security reforms. Did the president assume full responsibility?

Not on your life. White House spokesman Dan Bartlett appeared on morning shows to blame Congress for dragging its feet and failing to implement presidential recommendations for the terror war. Yet, if the president seriously believes his claim of special authority over foreign affairs, then blaming Congress is a non sequitur. He could have adopted the 9/11 commission’s recommendations without further congressional action.

One of the key recommendations of the 9/11 commission is certainly within presidential power: streamlining the intelligence bureaucracy. Unfortunately, wrote commission-member John Lehman in last November’s Washington Post, the president has missed that boat.

“Instead of the lean structure recommended by the commission … the administration reached all the way back to the McNamara years to create a huge new [intelligence] staff to sit atop the old, still bloated bureaucracies. The result is that little has changed,” Lehman explained.

The same finger-pointing also typifies the administration’s defense of the NSA program. On February 6, in damage control mode, the attorney general tried to deflect criticism by placing the blame for the NSA program at Congress’s door. The emergency electronic surveillance warrant Congress authorized, he complained, requires pre-approvals by lawyers at NSA, more lawyers at Department of Justice, Cabinet members, the attorney general, and another senior official — a waste of time that counterterrorism can’t afford.

Yet, if the president has the power he claims, he can cut that red tape with or without Congress. Blaming Congress is surely beside the point.

Both cases reflect two sides of a single dubious presidential strategy: use Congress as a punching bag when polls plummet. In the first case, the administration blamed Congress in order to avoid taking a political hit for executive mistakes. In the second, it used Congress to deflect criticism for an unpopular program. It’s “executive power” on offense, “blame Congress” on defense.

Here’s the problem: If the president’s executive power over foreign affairs is unreviewable by courts, as he claims, distracting finger pointing is likely to continue. The reason is simple: If the president can evade Congress under the flag of national security, outmoded laws, like our electronic surveillance laws, stay on the books. New practices, like the NSA program, are birthed in secrecy. That gives the president maximum flexibility behind closed doors. But because old, outmoded laws and a fuzzy division of authority persist, he can deflect criticism onto Congress when his shadowy policies prove unpopular (as with the NSA program) or fail (as with intelligence restructuring).

What’s the answer? It’s outlined by Justice Robert Jackson’s famous concurrence in Youngstown Sheet and Tube Co. v. Sawyer: When the president uses his foreign affairs powers, as here, without congressional authorization, he gets less deference from courts.

That rule can push the president to lead, not sneak in the shadow of dead-letter laws. Promise of deference when he acts within rules agreed upon by both branches gives the president incentive to work with Congress to change broken laws, like our law of electronic surveillance. And new rules, backed by political consensus, not only advance the fight on terrorism but clarify authority and assign responsibility, putting an end to finger-pointing.

And that, Mr. President, is great strategy for the war on terror.

Mark Moller is a senior fellow and editor in chief of the Cato Supreme Court Review.