In defending a decision to let the National Security Agency eavesdrop inside America without a court warrant, the White House is invoking the same legal argument it uses to justify its policies at the prison for terror suspects at Guantánamo Bay, Cuba.
President Bush says post-Sept. 11, 2001, war powers entitle him to circumvent civilian courts on a range of war-on-terror activities – from keeping terror suspects captive in cages at the U.S. Navy base in Cuba to letting U.S. agents listen in on phone calls between people in the United States and foreigners, to gather intelligence on al Qaeda.
Yet now, it looks like Congress – not the courts – will examine the legality of the eavesdropping episode, which some are calling “Spookgate.”
“The president has been ambitious in defending us, and now the Congress wants to know if he has been overly ambitious – and if it [that ambition] has offended civil liberties,” says Pepperdine University law professor Douglas Kmeic, a Reagan administration conservative. “The real check and balance is this dynamic between Congress and the president.”
Until now, the courts have largely refereed whether the White House is overreaching when it says Congress’ authorization for the use of force has allowed everything from the holding of foreign terror suspects as enemy combatants, not POWs; to having U.S. military officers, not civilian judges, rule on war crimes in Military Commissions; to whether the Defense Department can hold U.S. citizens without charge, as enemy combatants.
And with mixed results.
The mostly conservative Fourth U.S. Circuit Court of Appeals in Richmond, Va., bucked the Bush administration just last week in the case of one-time Chicago gang member José Padilla, held nearly incommunicado for 3 ? years as an alleged, would-be dirty bomber. Rather than shift Padilla’s case to federal court in Miami, the Fourth Circuit left for the Supreme Court to decide whether the Bush administration was allowed to hold him as a military prisoner in the first place.
Attorney General Alberto Gonzales defended the program last week by citing Supreme Court Justice Sandra Day O’Connor’s ruling in Hamdi vs. Bush that upheld the president’s power to create a category of captive called enemy combatant.
“She said it was clear and unmistakable that the Congress had authorized the detention of an American citizen captured on the battlefield as an enemy combatant for the remainder – the duration of the hostilities,” he said at the White House.
Critics point to another portion of the same ruling: “We have long since made it clear,” she wrote for the plurality of the court, “that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Civil libertarians argue that the U.S. legal system is strong enough to cope with the security challenges presented by a global terror network.
“The president thinks the war on terror gives him carte blanche to go outside of the law,” says attorney Michael Ratner of New York’s Center for Constitutional Rights, an early critic of the administration’s expansive use of power.
He calls revelations of warrantless wiretapping “all of one piece, another power grab by the president” that skirted not only Washington’s secret Foreign Intelligence Surveillance Court but symbolizes the overarching issue of presidential powers.
“It is not debatable whether the president can order electronic eavesdropping once Congress has passed a law making it criminal to do so,” asserts Ratner. “It is impeachable. The fact that we are sitting in 21st century America debating the issue of presidential power is ridiculous to me.”
Enter Congress. Four years ago after it authorized the use of military force against al Qaeda, on Sept. 18, 2001, says Kmeic, the war on terror seems to most Americans less like World War II – and “more like Vietnam.”
So now, Kmeic says, lawmakers have begun to debate the meaning of that military force authorization:
• “Is it strong enough to allow the president to unilaterally determine enemy combatants?
• “Is it strong enough to say that those in Guantánamo have no access to federal courts?
• “Is it a strong enough hand for him to authorize spying on American citizens, seemingly contrary to the statutes that have been passed for other purposes?”
Civil libertarian protests have been on a slow burn for some time – first over plans to summarily deport illegal immigrants, later on the question of whether a White House legal argument became a cover for interrogation using torture.
Now, the disclosure that President Bush authorized domestic wiretapping more than 30 times, every 45 days, has ignited a firestorm.
Amid last week’s Christmas sales, the American Civil Liberties Union bought a full-page ad in The New York Times that showed Richard Nixon and the headline, This Man Wasn’t Above the Law – then President Bush under the heading, Neither Is This One.
At issue, among other things, is whether the president needs extraordinary powers and can lawfully invoke them because he considers the country at war with a global scourge, called terrorism.
“We’ve put in place since 9/11 an aggressive posture that says we’re going to go after the terrorists wherever we find them. We’re going to use all means that are available to us consistent with the laws and the Constitution to take on the terrorists,” Vice President Dick Cheney said on CNN from Pakistan last week.
“The fact of the matter is we’re doing it in accordance with the Constitution and the laws of the United States, and it ought to be supported. This is not about violating civil liberties because we’re not. This is about defending the country against further terrorist attack. That is what we’re sworn to do.”
As encapsulated in the Patriot Act debate, opponents argue that the administration has to work harder to find legal methods within existing law to hunt down and prosecute terrorists as criminals, and not improvise under the guise of war powers.
Absent disclosure of which Americans had their phones and e-mail bugged without a warrant in the top-secret program, legal experts predict Congress will review the program.
The chairman of the Senate Judiciary Committee, Arlen Specter, of R-Pa., has agreed to hold hearings on the topic next year.
Americans need look no further than the Iran-Contra scandal to see one possible scenario:
Democrats in the late 1980s uncovered a Reagan administration program that skirted a congressional ban on aid to Nicaragua’s Contra rebels by using the proceeds from secret weapons sales.
Cheney, at the time a Wyoming congressman, argued then – as he does now – for an expansive view of presidential authority. Reagan dismantled the secret program after it became public.
Presendential War Powers
President Bush’s authorization of domestic spying is the latest in a long history of White House efforts to expand presidential war powers. Some examples:
• The Alien and Sedition Acts of 1798: These laws, passed in response to war fever against France, gave President John Adams the power to imprison government critics and deport aliens.
• Suspending liberties during the Civil War: President Abraham Lincoln suspended the right of citizens to challenge their arrests in court and defied a court order challenging his decision.
• The Sedition Act of 1918: Gave President Woodrow Wilson broad authority to arrest critics. The law was repealed three years later.
• Interning Japanese Americans: During World War II, President Franklin Roosevelt ordered the internment of more than 100,000. The government later apologized.
• Nationalizing the steel industry: President Harry S. Truman tried to assert federal control of the steel industry to avoid a strike that could have disrupted Korean War supplies. The Supreme Court blocked him.
• Domestic spying: President Richard Nixon authorized electronic surveillance without court approval against Americans suspected of subversion. The Supreme Court ruled in 1972 that he had exceeded his authority.
• The Iran-Contra affair: Frustrated by a congressional ban on aid to Nicaraguan Contra rebels, President Ronald Reagan authorized a secret plan to send them proceeds from the sale of weapons to Iran. He dismantled the program after it became public.
• Enemy combatants: The Supreme Court ruled last year that President Bush had the authority to detain U.S. citizens as enemy combatants in the war on terrorism but they could appeal their captivity to the courts.
Ron Huchenson, Knight Ridder Washington Bureau.