Presidential lawbreaking

The question is whether the President can authorize his subordinates to commit felonies whenever in his sole judgment he decides that committing those felonies would serve the national security. I think we can count on the voters to give the right answer to that question.

Kevin Drum writes:

I continue to think Democrats should make it absolutely clear that what they’re attacking isn’t necessarily the NSA program itself, but the fact that the president unilaterally decided that he could approve the program without congressional authorization.

For once, I disagree with Kevin Drum. That is, I agree that “warrantless wiretapping” isn’t, and probably doesn’t deserve to be, a major issue, but I don’t agree that “warrantless wiretapping without Congressional authorization” is much better, either substantively or politically. If the Congress had been silent on the issue and the President had acted anyway, that would be more or less normal institutional elbowing, far short of a Constitutional crisis. But in fact the Congress had acted, by passing a criminal statute (FISA), and the President went ahead anyway and did exactly what FISA forbids.

So my formulation would be not “Presidential action without Congressional authorization” but “Presidential lawbreaking.” The question is whether the President can authorize his subordinates to commit felonies whenever in his sole judgment he decides that committing those felonies would serve the national security. I think we can count on the voters to give the right answer to that question.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com