The Magazine

Constitutional Spying

The solution to the FISA problem

Jan 2, 2006, Vol. 11, No. 16 • By GARY SCHMITT
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Here we reach the nub of the matter: The Founders, in the words of The Federalist, did not think it was wise or even possible to set a "limitation of that authority which is to provide for the defense and protection of the community." At the end of the day, a government has to do what is necessary to protect itself and its people. Yet, at the same time, the Founders believed in limited government. How did they square the circle? When it comes to the conduct of war, the history is pretty clear: They expected presidents to do what was required to secure the country's safety. But they did anticipate that Congress would play the role of Monday--morning quarterback: exposing malfeasance when called for, adding or cutting off funds when necessary, passing laws to regularize the exercise of executive discretion without undermining it, and, in the face of truly egregious behavior, being ready to impeach a president.

Obviously there is no neat solution to the problem of power and responsibility. However, as Winston Churchill said about democracy itself, the system of discretion and oversight the Constitution establishes is the worst possible solution-except for all others that have been tried.

Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute and former executive director of the President's Foreign Intelligence Advisory Board.