One week into the new year, we are already mired in an acrimonious debate over whether George W. Bush – who vows to continue his warrantless domestic spying program – is crafting an imperial presidency unfettered by constitutional checks and balances or is restoring broad powers that he sees in the plain language in the Constitution.
Bush says he is acting within his constitutional prerogatives, but this debate could be the most critical political issue of 2006. It will surface in Samuel Alito’s confirmation hearing, which starts Monday. It will permeate the impending debate over extension of the Patriot Act. It will raise thorny and explosive questions about the proper balance between national security and individual liberties in the Sept. 11 era. And, perhaps most important, it will mirror the national divide over Bush himself.
His supporters argue that, by approving warrantless domestic surveillance, he’s taking the necessary steps to protect Americans from enemies foreign and domestic; to do otherwise, they say, would be a dereliction of duty. But Bush’s critics – including legal scholars who contend that he has committed impeachable acts – now view him as a cross between Jack Bauer and Louis XIV.
Louis XIV was the famous French king who declared, “L’etat, c’est moi” (translation: I am the state). Jack Bauer is the famous Fox network hero of the show “24,” the anti-terrorist agent who last season tortured a series of suspects with no regard for legal niceties and, at one point, outfoxed a craven civil liberties lawyer who was messing things up as the clock ticked down.
The Bush team prefers to view this president as a cross between Abe Lincoln (who suspended some civil liberties during the Civil War) and founding father Alexander Hamilton (who wrote that “energy in the executive … is essential to the protection of the community against foreign attacks”). Or, as Republican Sen. John Cornyn of Texas puts it, national security trumps all: “None of your civil liberties matter much after you’re dead.”
But you know that emotions must be running high when a constitutional lawyer says this: “President Bush presents a clear and present danger to the rule of law. … Congress should insist the president cease the spying unless or until a proper statute is enacted, or face possible impeachment.” Those are the words of conservative Bruce Fein, a deputy attorney general under Ronald Reagan, who contends that Bush has explicitly broken the 1978 federal law that requires that a president obtain warrants.
Jonathan Turley, a George Washington University law professor and a frequent counsel in national security cases, argued Friday that, because of Bush’s spying program, “we now have the most serious constitutional crisis that this country has faced in decades. A president cannot be allowed to become a law unto himself.
“I testified in Congress in support of Bill Clinton’s impeachment, and I also thought he should have been convicted. At that time, my Republican friends insisted that the Clinton case was about the rule of law. Today I’m a bit surprised to see so many of them being so conspicuously silent. This president is misusing his office to order the continued commission of federal crimes. That is unique in the annals of impeachment.”
Impeachment talk will fizzle in Congress because Republicans control both chambers. And Bush supporters say the charge lacks merit anyway. As conservative commentator Rich Lowry contended the other day: “The president has the authority under Article II of the Constitution to defend the United States. If he can bomb the nation’s enemies overseas without a court’s approval, he certainly can listen to their conversations.”
Nevertheless, there will be hearings on the spying program (perhaps in secret, if the White House gets its way), and some lawmakers may be ready to challenge the Bush administration’s claim that the president has the “inherent authority” to conduct the war on terror without interference from another branch of government.
The issue of expansive executive power has been festering ever since the Sept. 11 attacks. Bush, among other things, has claimed the authority to detain U.S. citizens as “enemy combatants” indefinitely without trial, and to define torture. (Recently, he signed a law banning inhumane tactics but suggested in a statement that he might ignore the ban.) The exposure of the domestic spying program will undoubtedly sharpen debate on Capitol Hill and prompt some sensitive questions about the scope of presidential power.
How does Bush’s claim of “inherent authority” square with Bush’s claim that he is a “strict constructionist”? A literal reading of the 1978 Foreign Intelligence Surveillance Act (FISA) reveals that it is “the exclusive means by which electronic surveillance … may be conducted” and requires that a president “during time of war” can conduct warrantless spying for a maximum of only 15 days, after which he must obtain court approval. And in a literal reading of the 2001 resolution authorizing Bush to use military force against terrorists, there are no references to domestic eavesdropping and no provisions setting aside the 1978 law.
Bush is fervently defending his three-year-old spying program and arguing that warrants are an impediment, but how does that square with his past remarks? On April 20, 2004, he said: “There are such things as roving wiretaps. Now, by the way, any time you hear the U.S. government talking about a wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … because we value the Constitution.”
The president’s lawyers stated, in a Dec. 22 letter to the Congress, that Bush ignored the 1978 law because he deemed it too slow. They wrote: “FISA could not have provided the speed and agility required.” But how does that square with the fact that the Foreign Intelligence Surveillance Act gives the president a 15-day grace period to initiate surveillance – and that FISA has rarely been an impediment? Between 1979 and 2002, the foreign intelligence surveillance court approved 15,264 warrants. It rejected four.
Morton Halperin, a national security official in three administrations (Johnson, Nixon and Clinton), said he suspected that the administration’s real motive for ignoring the law is that the eavesdroppers have been trolling widely for information without the traditional standard of probable cause. But, given the secrecy of the program, there is no way to prove that – and, more broadly, it remains to be seen whether there is sufficient political will to buck Bush on the issue of presidential clout.
This is particularly true for the Democrats, many of whom remain spooked by any issue that could make them appear soft on terrorism. Liberals are hot to blast Bush for imperial behavior, but others in the party think the issue is a loser. Activist Marshall Wittmann, who hails from the moderate wing, argued the other day that “what seems lost is the reality that jihadists seek to attack within the borders of the United States.”
The latest surveys don’t provide much encouragement to the liberals. Democratic pollster Mark Penn reports that, in his latest soundings, the GOP is favored over the Democrats, by 48 to 38 percent, as the party “more trusted to fight terrorism.” And, according to independent pollster John Zogby, 49 percent of likely voters believe that Bush has the power to OK warrantless spying while 45 percent say no.
Zogby said Friday that, in the abstract, most Americans treasure privacy, “but the numbers shift when you put Bush’s name in the poll.”
“Republicans and Republican-leaning independents rally to him, and you end up with the public virtually split down the middle, as usual. That’s the state of our nation.”
And, as usual, the Democrats are in a tough spot. They have nearly half of the voters, but they have no clout in Washington. Many fear the argument that Bush has gone too far, lest they be accused of not wanting to go far enough. Turley, the law scholar, lamented: “The framers created a system of checks and balances that doesn’t function well when two, or even three, branches of government are controlled by the same party.”
Bush is working on that third branch. Justice Sandra Day O’Connor warned, in a 2004 decision, that “a state of war is not a blank check for the president … even the war power does not remove constitutional limitations safeguarding essential liberties.” Her prospective replacement, Samuel Alito, is perceived as a potentially friendlier vote for executive power. The questioning begins this week.