Driven by Fear or Governed by Law?

From: Joe Volk

Legislative Action Message

Driven by Fear or Governed by Law?– FCNL

In his “global war on terror,” President Bush has a strategy for U.S. security which can be summed up in one word: “Boo!”

Once upon a time, in the era of the New Deal, a president led by reminding citizens that their only fear should be fear itself. The public responded with courage and resolve. Today, George W. Bush offers different advice and a different deal. He scares the bejeezes out of the public with made-up stories of false threats based on dis-information. He says, be afraid. And then he pitches his deal: give up your liberty and I’ll make you safe. What will our response be to this fear-deal? To save our liberty, we must respond with courage and resolve. What was true in the 20th century remains true today in the 21st century: the only thing we have to fear is fear itself.

George W. Bush launched a public campaign this week to defend the administration’s warrant-less domestic spying program and paint congressional critics of the program from both parties as unwilling to make the tough choices needed to protect the United States from attack. We can’t let this White House public relations campaign go unanswered. We must support the Senate investigation of the legal foundation for this program. Write to your senators at


Is the President Above the Law? Our country faces real threats. Presidents do have a responsibility to protect the United States. But in our society the president is not above the law. We believe the National Security Agency (NSA) domestic spying program violates a specific provision of one law. Five senators from the president’s own party, John McCain, Arlen Specter, Chuck Hagel, Lindsey Graham, and Sam Brownback, have also expressed doubts about the legal basis for this program to spy on U.S. citizens. The Senate has scheduled hearings for February 6 to examine this issue, but the White House campaign could lead some senators to back away from a full investigation on the rule of law and the responses to the president’s arguments.

The NSA spying program is but one example of a broader White House effort expanding presidential powers and usurping laws passed by Congress in a manner that threatens our constitutional democracy. The president states flatly that the NSA spying program is legal. When asked during a press conference on Thursday by a reporter about assertions that his actions circumvent the Foreign Intelligence Surveillance Act of 1978 (FISA), a law that establishes procedures for domestic wiretapping by the NSA, the president said:

"The FISA law was written in 1978. We're having this discussion in 2006. It's a different world. FISA is still an important tool. And we still use that tool. But I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work in order to be able to do the job we expect us to do. And so that's why I made the decision I made. And you know, ‘circumventing’ is a loaded word, and I refuse to accept it, because I believe what I'm doing is legally right.”

That is a breathtaking admission.

The president admitted that he didn’t like the law so he just made up his own rules. So where does the presidential authority come from to authorize this program? The answer from the administration is that the congressional resolution authorizing the use of military force to respond to the attacks of September 11, 2001 grants the president power to do what he needs to do. “Most presidents believe that during a time of war that we can use our authorities under the Constitution to make decisions necessary to protect us,” the president said Thursday. He believes that 2001 law, in effect, told the administration: “Go ahead and conduct the war. We’re not going to tell you how to do it.”

Different times, difficult issues, and new challenges do require reconsideration. Some members of Congress from both parties have suggested that Congress should consider amending the FISA law to grant the president the authority he needs to engage in wiretapping without approval even by the secret FISA court to track violent extremists communicating with people in the United States. But the president suggested this week that he will resist attempts to rewrite the laws because even a public debate on his actions might endanger national security.

This administration’s response to legitimate questioning about the expansion of presidential powers that could infringe on individual rights is to charge that the people formulating the questions are weakening the United States, exposing the country to the possibility of further violent attacks, and imposing unreasonable restraints on the president during wartime.

That argument cannot -- must not -- go unchallenged. The country can – and we must -- promote conditions for our public to be safe and our country secure by preserving individual liberties. This country had a revolution when another George tried to be the law over here, and the public kicked him out of the country in the name of freedom and security.

From the beginning of our country, freedom and security have lived hand-in-hand as partners under the Constitution, not antagonists. The Senate hearings that begin on February 6 offer an opportunity to open up a public debate on these issues. But the debate must be rooted in a reaffirmation that Congress under the Constitution is charged as a coequal branch of government with the responsibility to govern this country. No president is above the law, especially not in wartime. Presidents must respect Congress as a coequal partner and must abide by the laws of this country. And Congress must not subordinate itself to the president, not even in hard times.

Take Action Now Write your senators today. We must persuade Congress to investigate carefully the NSA spying program and other attempts to usurp the constitutionally protected powers of the Congress. Write a letter to your senators at

Speak out, talk to friends, neighbors, colleagues, and others in your community. Urge them to speak out as well.

In the next week, FCNL will be posting on our web site documents, papers, and other resources that offer a more detailed analysis of this debate on the fate of freedom and responses to the president’s arguments. We encourage you to check back often.

Background documents Read the President’s statements about wiretapping

Read the questions that Senator Specter is asking Attorney General Gonzalez about the program PDF

Find out why six senators are demanding an investigation of this program

Read the text from the Authorization for the Use of Force from the 107th Congress


The Next Step for Iraq: Join FCNL's Iraq Campaign

Contact Congress and the Administration:

Informant: Martin Greenhut


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Januar 2006

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