Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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December 21, 2005

The news has churned this week with coverage of the NSA scandal. Shifting focus from the very real privacy implications of the domestic surveillance, the more recent stories are really getting to the heart of the matter: that this is about the separation of powers.

Vice President Cheney helpfully confirmed that undertone in the story yesterday, telling reporters traveling with him on Air Force Two that the NSA program was just part of a larger priority in the White House of reasserting the “inherent” power of the presidency, granted in Article II of the Constitution and “confirmed” in the 9/11 use of force resolution.

Quoted in the Post and The Times: “Watergate and a lot of the things around Watergate and Vietnam both during the ’70s served, I think, to erode the authority I think the president needs to be effective, especially in the national security area.”

Cheney’s anxieties seem misplaced for two reasons: First, the modern executive branch is arguably stronger than at any time in American history, except perhaps during the Civil War or the New Deal. The War Powers Act, the FISA surveillance standards, any vestige of the 1970s backlash against Nixonian excesses, the Vietnam War or the domestic surveillance uncovered by the Church Committee has long since been undermined, eroded or dismantled.

The proof is in the path the scandal took into the public eye: The NSA story broke not because of any oversight by Congressional intelligence committees or the FISA court, but because officials in the NSA itself — representing the supposedly weak executive branch of government — decided to speak out.

The Post highlighted exactly this point, quoting Senator John E. Sununu, son of President George H.W. Bush’s chief of staff, and one of the lawmakers holding out for added civil liberties safeguards in Patriot Act renewal: “The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years.”

Also, even if one were to accept the premise that executive authority is below where it should be, the implications of the vice president’s position are untenable. The NSA program isn’t just about installing a more macho presidency, it’s about precluding any sort of accountability whatsoever for domestic surveillance.

The whole point of the NSA program was to circumvent the courts (one of the FISA judges resigned yesterday in protest), and to keep those few lawmakers briefed on the program in a bind, where disclosure of any misgivings would be political suicide.

Finally, couple of other recent stories worth mentioning. The Post has this piece on the four GOP senators standing firm in favor of adding new civil liberties protections to the Patriot Act. It astutely makes the point that these four aren’t part of the big tent GOP moderate wing (i.e. this isn’t a Snowe/Collins/Chafee special). Also, FBI spying on activist groups, discovered via ACLU document requests, covered here.

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