The Rant

When the Framers debated the war power, they made plain that the language of Article 1, Section 8, which authorizes Congress “to declare war” was intended to prevent the President from initiating offensive military action without prior congressional approval. At the same time, according to the notes of the Constitutional Convention, they intended to leave “to the Executive the power to repel sudden attacks.” To repel sudden attacks, the Executive needs to detect sudden attacks. That means he needs to spy on those who might attack us. With modern technology, that means he might, say, point radars off our shores to track incoming planes—a practice no one seriously questions. But according to Judge Taylor’s logic, the President cannot constitutionally eavesdrop on telephone calls placed into the U.S. from suspicious, incoming planes unless he gets permission from a judge first. The truth is, Democratic Presidents long before Bush conducted warrantless electronic surveillance for national ...