In asserting his right to ignore the law, President Bush has slapped Congress right across the face and told them they better like it.
Congress can now mutter “Yes, sir” and cower in its corner like a whipped dog, as it has for most of the past five years, or it can fight back to defend its institutional authority. Either choice will mark a turning point in U.S. history.
At immediate issue is the president’s decision four years ago to allow the National Security Agency, an arm of the Pentagon, to spy on phone conversations and e-mails of U.S. civilians without court-approved warrants. President Bush insists the program is legal, but it’s important to understand what he means by that term.
Bush and his advisers do not claim that his actions are legal because they abide by the Foreign Intelligence Surveillance Act, or FISA; they quite clearly violate that law. Instead, they claim his actions are legal because as commander in chief, he can violate the law if he chooses and still be acting legally.
It is, in other words, his royal prerogative.
That is an extraordinary assertion of executive power, particularly since the president claims this authority will last “so long as the nation faces the continuing threat of an enemy that wants to kill American citizens,” which is pretty much forever.
Conservatives rushing to support Bush’s position out of personal loyalty might want to think about that. If allowed to stand, the president’s claim will fundamentally alter the balance of power not just between Congress and the presidency, but between our government and its citizens, and it will do so regardless of who occupies the Oval Office in the future.
Bush grounds his argument on need, claiming that current law gives him too little leeway to fight the war on terror effectively. That argument has at least four basic flaws.
First, it ought to alarm anyone who is truly serious about preserving personal liberty in the face of government power. “Necessity is the plea for every infringement of human freedom,” British statesman William Pitt warned in 1783. “It is the argument of tyrants; it is the creed of slaves.”
Second, the claim that Bush has had to violate FISA to protect our security is false. Under FISA, the government has explicit authority to begin wiretapping whenever it deems necessary, without seeking prior approval from a judge. The law merely requires the executive to seek after-the-fact approval from a top-secret special court within 72 hours. Since 1978 that FISA court has rejected just five of 18,748 warrants sought by the government.
Third, even if the law were defective, as Bush claims, no president has the power to make that determination on his own. This is a democracy; if there’s a problem with a law, the Constitution gives us a process for fixing it. In this case, FISA was a carefully calibrated, thoroughly debated effort to find the right balance between security and liberty; Bush does not have the authority to simply toss that work out the window because he disagrees with it. That’s the power of a dictator, not of a president.
Fourth, and most fundamentally, this argument of necessity calls into question who we have become as a people.
More than 160,000 U.S. troops are in Iraq this holiday season, putting their lives, bodies, souls and futures on the line. Thousands more are on duty in Afghanistan. And while those of us here at home celebrate their bravery, for the most part we are not required to share in it. We let them do the fighting and dying for us; we do the applauding and burying.
We do, however, run an infinitesimally small chance of falling victim to a terrorist attack. It happened once; it could certainly happen again, and we should do everything within reason to prevent a recurrence.
But it does not seem too much to ask that in facing down that danger, we demonstrate just a fraction of the bravery and resolution that our soldiers show. Osama bin Laden, after all, is not Adolf Hitler or imperial Japan or the Soviet Union.
If we civilians quake at the comparatively minor danger that he and his followers pose, if we rush to offer up our civil liberties in hopes of a little more safety, we prove ourselves unworthy of the sacrifice that our men and women in uniform are prepared to make.
Yes, the president has told us we should be fearful, encouraging us to compromise not just our freedom but our constitutional system of government. But if this is still the country we claim it to be, we will tell him no.
Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.