The President and the Constitution

Ed Brayton, over at Dispatches from the Culture Wars, has some excellent commentary on the court finding that the warrentless wiretapping of international phone calls (referred to by the White House as the Terrorist Surveillance Program) is massively illegal and unconstitutional. Ed focuses on the possibility that the ruling will be overturned on standing grounds, and the implications if that happens. I'm going to focus on something a little different: the White House response to the ruling, and the fundamental misunderstanding of the President's job description that it demonstrates.

The part of the White House statement that I am most concerned with is found in the second paragraph, and is highlighted in boldface here:

United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection.

It is certainly important that the President protect the public, but that is hardly the President's main role.

The President's job description can be found in Article II of the United States Constitution. It specifies a number of responsibilities, including the President's role as Commander-In-Chief, but does not rank them in order of importance. It certainly does not say that the Presidential Article II responsibility as Commander-In-Chief is more (or less) important than the Presidential Article II responsibility to, "take care that the laws be faithfully executed."

Although Article II does not list the duties of the president in order of importance, I think there is something in there that does provide us with a hint as to what the "most solemn duty" of the President really is - the Oath of Office:

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The framers of the Constitution had, not all that long before writing the thing, been participants in an action that would have been called "high treason" if they had lost the war. They had personally placed their beliefs ahead of their personal safety and security, and I doubt that they expected less of their successors. The Constitution was the document that they were writing to establish and preserve the form of government that they had risked their lives to establish, and it seems clear that they thought it more important to defend the Constitution than to physically protect every individual citizen from physical harm.

The "Terrorist Surveillance Program" may (or may not) improve our physical security, but as presently set up it runs entirely counter to our system of government. The Judge Taylor made that crystal clear in her opinion, stating that the program, "violates the APA [Administrative Procedures Act]; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law." That's pretty much everything but the kitchen sink in there. The government almost certainly needs to conduct wiretapping of suspected terrorists in order to protect us, but they need to do so within the Constitution and within the law. They are doing neither right now, and need to be stopped.