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.
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