Constitutional Lawyer: President Bush
presents a clear and present danger to the rule of law
The Washington Times
By Bruce Fein
December 20, 2005
According to President George W. Bush, being president in wartime means
never having to concede co-equal branches of government have a role when it
comes to hidden encroachments on civil liberties.
Last Saturday, he thus aggressively defended the constitutionality of his
secret order to the National Security Agency to eavesdrop on the international
communications of Americans whom the executive branch speculates might be tied
to terrorists. Authorized after the September 11, 2001 abominations, the
eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA),
excludes judicial or legislative oversight, and circumvented public
accountability for four years until disclosed by the New York Times last
Friday. Mr. Bush's defense generally echoed previous outlandish assertions that
the commander in chief enjoys inherent constitutional power to ignore customary
congressional, judicial or public checks on executive tyranny under the banner
of defeating international terrorism, for example, defying treaty or statutory
prohibitions on torture or indefinitely detaining United States citizens as
illegal combatants on the president's say-so.
President Bush presents a clear and present danger to the rule of law. He
cannot be trusted to conduct the war against global terrorism with a decent
respect for civil liberties and checks against executive abuses. Congress
should swiftly enact a code that would require Mr. Bush to obtain legislative
consent for every counterterrorism measure that would materially impair
individual freedoms.
The war against global terrorism is serious business. The enemy has placed
every American at risk, a tactic that justifies altering the customary balance
between liberty and security. But like all other constitutional authorities,
the war powers of the president are a matter of degree. In Youngstown Sheet
& Tube v. Sawyer (1952), the U.S. Supreme Court denied President Harry
Truman's claim of inherent constitutional power to seize a steel mill
threatened with a strike to avert a steel shortage that might have impaired the
war effort in Korea. A strike occurred, but Truman's fear proved unfounded.
Neither President Richard Nixon nor Gerald Ford was empowered to suspend
Congress for failing to appropriate funds they requested to fight in Cambodia
or South Vietnam. And the Supreme Court rejected Nixon's claim of inherent
power to enjoin publication of the Pentagon Papers during the Vietnam War in
New York Times v. United States (1971).
Mr. Bush insisted in his radio address that the NSA targets only citizens
"with known links to al Qaeda and related terrorist organizations. Before we
intercept these communications, the government must have information that
establishes a clear link to these terrorist organizations."
But there are no checks on NSA errors or abuses, the hallmark of a rule of
law as opposed to a rule of men. Truth and accuracy are the first casualties of
war. President Bush assured the world Iraq possessed weapons of mass
destruction before the 2003 invasion. He was wrong. President Franklin D.
Roosevelt declared Americans of Japanese ancestry were security threats to
justify interning them in concentration camps during World War II. He was
wrong. President Lyndon Johnson maintained communists masterminded and funded
the massive Vietnam War protests in the United States. He was wrong. To
paraphrase President Ronald Reagan's remark to Soviet leader Mikhail Gorbachev,
President Bush can be trusted in wartime, but only with independent
verification.
The NSA eavesdropping is further troublesome because it easily evades
judicial review. Targeted citizens are never informed their international
communications have been intercepted. Unless a criminal prosecution is
forthcoming (which seems unlikely), the citizen has no forum to test the
government's claim the interceptions were triggered by known links to a
terrorist organization.
Mr. Bush acclaimed the secret surveillance as "crucial to our national
security. Its purpose is to detect and prevent terrorist attacks against the
United States, our friends and allies." But if that were justified, why was
Congress not asked for legislative authorization in light of the legal cloud
created by FISA and the legislative branch's sympathies shown in the Patriot
Act and joint resolution for war? FISA requires court approval for national
security wiretaps, and makes it a crime for a person to intentionally engage
"in electronic surveillance under color of law, except as authorized by
statute."
Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon,
Virginia, California, Texas and Ohio as evidence of a pronounced domestic
threat that compelled unilateral and secret action. But he failed to
demonstrate those cells could not have been equally penetrated with customary
legislative and judicial checks on executive overreaching.
The president maintained that, "As a result [of the NSA disclosure], our
enemies have learned information they should not have, and the unauthorized
disclosure of this effort damages our national security and puts our citizens
at risk." But if secrecy were pivotal to the NSA's surveillance, why is the
president continuing the eavesdropping? And why is he so carefree about risking
the liberties of both the living and those yet to be born by flouting the
Constitution's separation of powers and conflating constructive criticism with
treason?
Bruce Fein is a constitutional lawyer and international consultant with
Bruce Fein & Associates and the Lichfield Group.
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