The pursuit of terrorism does not authorize the president to make up new laws
By THOMAS G. DONLAN
http://online.barrons.com/article/SB113538491760731012.html
AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.
It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. -- without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.
The USA Patriot Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.
Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn't last four years.
In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed. Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.
"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that Constitutional authority." Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.
Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.
Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.
Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment. It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law. Some ancillary responsibility, however, must be attached to those members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it.
Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice President Dick Cheney in 2003 that he was "unable to fully evaluate, much less endorse these activities." But the senator was so respectful of the administration's injunction of secrecy that he wrote it out in longhand rather than give it to someone to type. Only last week, after the cat was out of the bag, did he do what he should have done in 2003 -- make his misgivings public and demand more information.
Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."
Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror.
Editorial Page Editor THOMAS G. DONLAN receives e-mail at tg.donlan@barrons.com.
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