Deceit over spying -- prelude to long-term
lame-duck president
San Francisco Chronicle
Pete McCloskey, Lewis H. Butler
December 23, 2005
It is always a sad thing for the nation when a president is caught telling
less than the full truth.
In the late 1950s, a CIA U-2 spy plane piloted by Gary Powers at 50,000 feet
was shot down over the Soviet Union. President Eisenhower, believing that
Powers could not have survived, advised the world that it was a "routine
weather flight which had strayed by mistake." The Russians then produced a live
and penitent Powers. We were embarrassed before the world, but worse, we had to
come to grips with the reality that our president had lied to us.
The resulting loss of faith in our leadership has continued to the present
day. Faith in our own government and its truthfulness is a key ingredient in
our strength as a nation.
So it was when the New York Times disclosed last week President Bush's
deliberate evasion of the Foreign Intelligence Surveillance Act. The
president's half-truths in defense of his actions will have perhaps a greater
long-range impact on public faith and the national security than his deliberate
violation of the act, which had been carefully crafted by Congress to create a
special secret court where the administration could go to obtain secret
warrants for wiretaps against persons deemed national-security threats. In an
emergency, the act allowed the president to perform the wiretaps without a
warrant so long as he advised the court within three days thereafter. Thousands
of warrants have been duly issued by the court, and few requests were
denied.
When called to account, the president said in a nationally televised press
conference that he had evaded the act because of the need to act speedily in an
emergency against the type of individual who had been communicating by cell
phone prior to the Sept. 11 terrorist attacks. This was not wholly truthful. As
noted above, the act allowed him to perform a wiretap without a warrant in an
emergency. Under long-standing American law, omission of a material fact is as
much a fraud as a deliberate lie.
In taking this position, President Bush was also claiming an authority that
has been denied to presidents since the earliest days of our republic.
At a time of bitter rivalry on the high seas with Britain and France
following our War for Independence, Congress had given the president the power
to seize ships carrying contraband into foreign ports. Congress had not,
however, given him the authority to seize ships coming out of foreign ports.
Under remarkably similar circumstances to those of today, President John Adams
in 1802 ordered our naval commanders to seize ships coming from, as well as
going to, foreign ports. Capt. George Little, commanding the frigate Boston,
seized a ship, the Flying Fish, coming out of a port in the Caribbean. In 1804,
U.S. Supreme Court Chief Justice John Marshall ruled in the landmark case of
Little vs. Bareme that while the president could, as commander in chief, do
whatever he wished to defend the country, once the Congress acted, his powers
would be limited by that act of Congress. Marshall ruled that the president had
therefore exceeded his powers and ordered the ship returned to its owners. That
constitutional ruling has been the law of the land for 201 years.
When President Harry Truman ordered seizure of the nation's steel mills
during the Korean War, the Supreme Court ruled that he had violated the
Taft-Hartley Act and ordered the mills returned to their owners. Recently, the
Supreme Court ruled that in the case of detainees held in the so-called war on
terror, the president was bound by congressionally enacted restrictions.
The president's evasion of the Foreign Intelligence Surveillance Act was bad
enough, but in his statement to the public, his blatant omission of the fact
that the act gave him the emergency power for wiretaps may have done
incalculable damage to the dwindling faith of Americans in their government, a
loss of faith that could be seriously detrimental to the president's goals
during the remaining three years of his term of office.
The attempted cover-up of illegal conduct has had terrible consequences for
previous occupants of the White House. In 1974, impeachment proceedings were
initiated against President Nixon, in part because publication of the Pentagon
Papers by the New York Times in June 1971, had caused the White House to
propose the infamous "Huston Plan" to authorize secret wiretaps and burglaries.
The refusal of FBI Chief J. Edgar Hoover to exercise this authority led, in
turn, to the creation of John Ehrlichman's famous Plumbers (to plug leaks). The
cover-up of the Plumbers' burglaries, finally confirmed in the White House
tapes, led ultimately to the House of Representatives voting for articles of
impeachment and the subsequent resignation of President Richard Nixon in August
1974.
So also, it was President Bill Clinton's obfuscation of the truth, not his
sexual peccadilloes, that led to impeachment proceedings against him.
There is little danger of impeachment in today's Republican-controlled
Congress, but the president's angry and mistaken defense of his actions may yet
hinder achievement of his goal of continuation of many provisions of the
Patriot Act, and even his goal of achieving a permanent democracy in Iraq.
If the price of freedom is eternal vigilance, so also do we pay a price for
presidential deceit.
Pete McCloskey represented the Peninsula as a Republican Congressman from
1967 to 1982. Lewis H. Butler was formerly secretary for policy in the
Department of Health, Education and Welfare in the Nixon administration. They
are co-chairmen of the Revolt of the Elders Coalition, which examines and
publishes the actions and views of the Republican leadership in Congress.
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