Is the President above the law?

DANIEL J. SOLOVE

The issue of presidential power goes to the heart of what kind of nation we will be, what kind of government we want to have. Far too often, I've heard discussions of the NSA surveillance issue define the harm as a threat to civil liberties. While it is true that civil liberties are threatened, this isn't the primary reason why the NSA surveillance is problematic. The NSA surveillance is problematic even if no civil liberties have been violated. The issue is about whether the President can engage in activities that contravene the laws of the nation. [Emphasis ours.] It is about whether we should allow the President to do so in secrecy, without any accountability to the people and without any oversight by the other branches of government. The Bush Administration's theory of presidential power appears to have little articulable limit. In trotting out a theory of presidential power broad enough to encompass the NSA surveillance, the Administration has yet to state how that power is limited, if at all, under its theory.

Daniel J. Solove is Associate Professor of Law at the George Washington University Law School.