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"Dedicated to exposing the lies and impeachable offenses of George W. Bush"

Bush's counsel on spying now under close scrutiny
Boston Globe
By Peter S. Canellos
December 27, 2005

WASHINGTON -- When President Bush sought to reassure the country that his authorization of spying on Americans without warrants was a reasonable exercise of his power, he emphasized that his orders were always reviewed by the attorney general and the White House counsel.

''Each review is based on a fresh intelligence assessment of terrorist threats to continuity of our government and the threat of catastrophic damage to our homeland," Bush said in his Dec. 17 radio address. ''The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president."

The current occupants of those jobs are Attorney General Alberto Gonzales and White House counsel Harriet E. Miers. Prior to 2005, Gonzales was White House counsel and John Ashcroft was attorney general.

The current dispute over whether the president had the authority to order domestic spying without warrants, despite a law against it, has put new focus on the legal officials who have guided Bush. And the qualifications of Ashcroft, Gonzales, and Miers could become a focus of the upcoming Senate hearings on the spying decision.

Legal advice given to the president in national security matters can hardly be of greater importance. Telling Bush that he lacks the authority to make a particular move could leave the country vulnerable to attack; assuring him that he has the power to override civil liberties could consign innocent suspects to imprisonment, abuse, or disappearance to secret holding areas in other countries.

Since Sept. 11, 2001, Bush's legal advisers have cleared the way for him to hold enemy combatants without trials; eavesdrop on overseas telephone calls and e-mails; place ever-greater numbers of government documents under a veil of secrecy; imprison a US citizen indefinitely on the suspicion of terrorist links; and, according to The Washington Post, operate a secret CIA prison in an Eastern European country.

In each case, the legal official responsible for assessing the extent of Bush's powers was Ashcroft, Gonzales, or Miers.

Defining the president's powers -- when he can act alone, when he's constrained by treaties, when he must seek congressional authorization -- is extremely difficult. If there's one area of the law where the framers of the Constitution relied on the good faith of the men and women in government, it's in adhering to a system of divided powers. Nonetheless, presidents and members of Congress have often disagreed on their respective powers, and the Supreme Court has approached such cases warily, fearful of upsetting the constitutional balance of power.

The determinations of Ashcroft, Gonzales, and Miers have had great weight because they effectively cut Congress out of the decision-making, at least until the Supreme Court could weigh in. But in spying cases especially, the targets weren't aware that they were being monitored, and thus could not challenge Bush in court.

By the standards of past attorneys general, Ashcroft and Gonzales were well qualified for the job. Still, neither of them had much occasion to consider the legal limits of presidential power before they took office. Ashcroft taught business law and later became attorney general of Missouri. He then spent 14 years as a governor and senator before becoming Bush's first-term AG. Gonzales was a partner at a corporate law firm before Bush became governor of Texas. He served as a legal adviser to the governor, and was briefly Texas secretary of state and a justice of the Texas Supreme Court.

By the standards of past White House counsels, both Gonzales and Miers were lightly qualified, since neither of them had Washington experience before guiding the president. By contrast, two of President Clinton's White House counsels, Lloyd Cutler and Abner Mikva, were eminent attorneys with decades of experience in assessing the limits of federal power.

During her ill-fated Supreme Court nomination, Miers was castigated by conservatives for her lack of qualifications. But her years as a partner in a corporate firm would have been more useful on the Supreme Court, which hears dozens of business cases a year, than in her current job reviewing the legality of Bush's actions.

To be sure, Gonzales and Miers -- like Ashcroft before them -- have many excellent lawyers working beneath them. But as Chief Justice John G. Roberts Jr. and Supreme Court nominee Samuel A. Alito Jr. can attest from their own days in the Justice Department, junior lawyers are usually restricted to coming up with justifications for the decisions made by their bosses.

And in these cases, the boss's decisions have literally been matters of life and death.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.

© Copyright 2005 The New York Times Company

I suppose Bush can use the "my lawyer (yes-man) told me to do it" defense.