We know that the President, by his own admission, ordered the NSA to monitor conversations, via telephone and email, between people in the United Sates and suspected terrorist overseas. He did this without seeking warrants before or after the act. The Senate Judiciary Committee will be conducting hearings to determine the legality of these actions. These hearing will provide a much needed debate about the presidential powers during wartime.

Did the September 18, 2001 Authorization for the Use of Military Force empower the President to override any existing laws that interfere with his ability to fight terrorism? The 1952 Supreme Court decision in Youngstown Sheet and Tube Company V. Sawyer held that President Truman did not have the authority to seize the nation’s steel mills to prevent a labor strike that threatened arms production for the Korean War. At that time, Justice Robert H. Jackson set out the following test. When Congress has expressly told the President he can act his powers are at the greatest, when Congress has expressly forbidden the President to act his powers are at the lowest. When Congress is silent on the matter, the issue is much grayer, what Jackson called “the zone of twilight”. The President is arguing that Congress had spoken on the matter and did authorize him to act, in the Authorization for Use of Military Force. Members of Congress are quick to point out, that there is no mention in the authorization for warrantless wiretaps. Former Senate Majority Leader, Tom Daschle, in a December 2005 Washington Post article alleged that White House lawyers had wanted broader presidential powers in the resolution and that he had refused. The hearings will need to determine whether Congress has spoken on the matter and what it intended in the Authorization for Use of Military Force.

If Congress did not authorize the President to engage in warantless wiretaps, it would appear he is in clear violation of the Foreign Intelligence Surveillance Act (FISA). When Congress declares war, the FISA act allows for warantless surveillance for 15 days. Since Congress only declared the use of military force, rather than war, the authorization would be equal to or less than, but not greater than the authorization granted during a declared act of war. If Congress were to determine that the program is necessary to fight the War on Terror, then it will need to amend the FISA laws to accommodate the program.

The Justice Department has asserted that Congress cannot limit the President, as Commander in Chief, in his choice of how to engage the enemy. That any laws passed by Congress, which interfere with his choice in how to fight the War on Terror, are not binding upon him. This is the same defense assert by the Bush administration that it was an unconstitutional intrusion on his powers as Commander in Chief to extend Habeas Corpus review to the detainees at Guantanamo. The Justices of the Supreme Court rejected that argument. The President is pitting what he believes are powers granted to him by the constitution against those of the Fourth Amendment, that forbid the unreasonable search and seizure of citizens without a warrant.

Raw story is reporting (2/5/06) that moderates from both sides of the aisles are considering a constitutional amendment to clarify and limit presidential powers during a time of war. While amending the constitution should never be taken lightly, if the President believes that his war time powers supersedes that of Congress and the judiciary, the Congress has a duty to clarify the limits and shared powers of the three branches of government.

These hearing will be a test of Democrats in the Senate. Will they have the courage to stand up for the rule of law and the constitutional rights of the citizens? Will they insist that if laws are not adequate to protect us during the War on Terror that the President work with Congress and the courts to change those laws rather than unilaterally circumvent them? Will they remember that terrorist truly win when they can use our terror of them to destroy the rights and freedoms granted to us by our constitution; to change the very structure of our government that divides power equally among three branches?