Comment: King George
February 2006 Issue
There comes a time when the nakedness of the emperor can no longer be denied.
Such a time is now.
George Bush’s policy of eavesdropping on U.S. citizens without a warrant proves
he has placed himself above the law. Add this to the long list of other impeachable
offenses—lying the country into war, torturing prisoners, exporting detainees for
torture, paying columnists to propagandize the American public—that George W.
Bush has committed, and put it at the top.
The President swears an oath of office that he will uphold the Constitution and
faithfully execute the laws of the land.
But he has been brazenly flouting the law that prohibits domestic spying without a
warrant.
“Some legal questions are hard. This one is not. The President’s authorizing of NSA
to spy on Americans is blatantly unlawful.”—Geoffrey Stone, University of Chicago
law professor
When The New York Times revealed on December 16 (after sitting on the story for
a year and then omitting details at the request of Administration officials!) that
Bush ordered the National Security Agency to monitor “the international telephone
calls and international e-mail messages of hundreds, perhaps thousands, of people
inside the United States without warrants over the past three years,” I expected
Bush to deny it or to say he was going to review the policy. Instead, he has been
vehemently defending that policy, citing both his authority under the Constitution
as commander in chief and Congress’s authorization to go after Al Qaeda.
These were the very same rationales that the Bush Administration put forward at
the Supreme Court in the 2004 case of Yaser Hamdi, one of the U.S. citizens Bush
detained without charge or trial for more than two years.
The Supreme Court was especially critical of Bush’s end around the courts. “A state
of war is not a blank check for the President when it comes to the rights of the
nation’s citizens,” Justice Sandra Day O’Connor wrote in the court’s majority
opinion. She warned, in her own italics, of the danger of an approach that “serves
only to condense power into a single branch of government.”
Bush, however, keeps invoking the state of war as a justification. At a December
19 press conference, he said his Administration bypassed going to a court and
getting a warrant, as required by the Foreign Intelligence Service Act (FISA),
because he wanted to “move faster and quicker.”
Leaving aside the fact that the law already allows the government to move
expeditiously and then seek a warrant seventy-two hours after the fact, Bush’s
excuse could have been used by any President at any time in our history to flout
the law in a time of war.
During the Cold War, for instance, Presidents needed to “move faster and quicker,”
too, since the Soviets had hundreds, then thousands, of intercontinental ballistic
missiles that could annihilate the United States. But that didn’t give Eisenhower or
Kennedy permission to violate a citizen’s right to privacy whenever they wanted to.
Many people have been scratching their heads about one paradox in this whole
scandal: The FISA court almost never turns the President down. Of some 19,000
requests for warrants, the court has rejected only five, says James Bamford, an
expert on the NSA. So why didn’t the President just go get this rubber stamp?
“If you’re calling Aunt Sadie in Paris, we’re probably not really interested.”—Dick
Cheney
It may be that the Administration worried that some of its specific requests were
simply too intrusive and expansive even for the pliant FISA court, and so Bush’s
people simply skirted the court. Or it may not have wanted to do the paperwork.
“The court has been subjecting the applications to closer examination,” Richard
Lacayo of Time magazine reported. “It made what the Justice Department calls
‘substantive modifications’ to ninety-four of last year’s requests—for example,
reducing the scope, timing, or targets in the original application.”
But I suspect that the Bush decision to bypass the court had less to do with
practicality and more to do with ideology: The Bush folks, especially Vice President
Dick Cheney and Attorney General Alberto Gonzales, do not believe the President
has to answer to anybody when it comes to his conduct as commander in chief.
Just as Cheney urged Bush not to go to the United Nations, so, too, he urged
Bush not to go to the FISA court. Each is a fetter on Presidential power. And
Cheney fantasizes about a President completely unfettered.
“I believe in a strong, robust executive authority,” Cheney said on December 20.
The NSA’s spying, he added, was “totally appropriate and consistent with the
constitutional authority of the President.” Faulting Congress for pursuing Reagan in
the Iran-Contra scandal, Cheney said, “The President of the United States needs to
have his constitutional powers unimpaired, if you will, in terms of the conduct of
national security policy.”
Gonzales, the chief law enforcement officer in the country, testified at his
confirmation hearing in January 2005 that the President could disregard the law.
“I do believe there may come an occasion when the Congress might pass a statute
that the President may view as unconstitutional,” Gonzales told Senator Patrick
Leahy. “Obviously, a decision as to whether or not to ignore a statute passed by
Congress is a very, very serious one, and it would be one that I would spend a
great deal of time and attention [on] before arriving at a conclusion that, in fact, a
President had the authority.”
So Bush, with Cheney and Gonzales whispering in each ear, defiantly says he’s
going to do whatever the hell he wants.
When he signed the anti-torture law in late December, for instance, Bush reserved
the right to ignore it, The Boston Globe reported. Bush specified in a “signing
statement” that said he would construe the law “in a manner consistent with the
constitutional authority of the President to supervise the unitary executive branch
and as commander in chief” with the objective “of protecting the American people
from further terrorist attacks.”
Bush may intend to use such “signing statements” to nullify just about any act of
Congress he chooses.
We haven’t seen such disdain for our system of checks and balances since the days
of Richard Nixon. And like Nixon in the Pentagon Papers case, Bush is trying to
shift blame to the press and to the whistleblowers, denouncing the leak as
“shameful.” Gonzales is now pursuing the leaker, though he has a double conflict of
interest.
First, he’s an old crony of Bush’s.
Second, and more importantly, when he was White House counsel, he was one of
the architects of the NSA spying program. So much so that he and Chief of Staff
Andrew Card had “to make an emergency hospital visit to John Ashcroft, then the
Attorney General, to try to persuade him to give his authorization” to continued
NSA spying after Ashcroft’s deputy, James B. Comey, refused to go along,
according to The New York Times.
Rather than investigating the leaker, Gonzales should be investigating himself—and
Bush.
But, of course, he won’t do that. Nor is he appointing a special prosecutor to look
into the matter. Nor does he seem to be recusing himself from the leak
investigation, as he has an obligation to do. Even Ashcroft recused himself from
the Karl Rove case.
“It is completely and facially unethical for Gonzales to head this investigation,” says
Jonathan Turley, professor of constitutional law at George Washington University.
The NSA spying scandal cries out for an impeachment inquiry. Our democracy
cannot survive the assertion of Presidential power to be above the law.
Senator Russ Feingold made this point quite well. “The President believes that he
has the power to override the laws that Congress has passed. This is not how our
democratic system of government works. The President does not get to pick and
choose which laws he wants to follow. He is a President, not a king. . . . He’s
President George Bush, not King George Bush.”
“The chilling danger created by President Bush’s claim of wartime omnipotence to
justify the NSA’s eavesdropping is that the precedent will lie around like a loaded
weapon ready for the hand of the incumbent or any successor who would reduce
Congress to an ink blot.”—Bruce Fein, writing in
The Washington Times, January 4
Even some conservatives who have often supported Bush have come out strongly
against the NSA spying (though The Wall Street Journal and The Weekly Standard
applauded it).
“The executive branch cannot unilaterally set the rules and enforce the rules, then
eliminate court review of possible civil liberties violations,” said Robert Levy, the
libertarian Cato Institute’s senior fellow in constitutional studies. Bush’s policy
“makes a mockery of the principle of separation of powers.”
Conservative legal scholar Bruce Fein, who served as associate deputy attorney
general in the Reagan Administration, was even more blunt. “If President Bush is
totally unapologetic and says I continue to maintain that as a wartime President I
can do anything I want—I don’t need to consult any other branches—that is an
impeachable offense,” he said on The Diane Rehm Show. “It’s more dangerous than
Clinton’s lying under oath because it jeopardizes our democratic dispensation and
civil liberties for the ages.”
Norman Ornstein of the American Enterprise Institute was on the same program
and echoed Fein’s comments. “I think if we’re going to be intellectually honest here,
this really is the kind of thing that Alexander Hamilton was referring to when
impeachment was discussed,” said Ornstein.
Richard Nixon was impeached, in part, for such power grabs and privacy invasions.
One of the three articles of impeachment that came out of the House Judiciary
Committee in 1974 said: “Using the powers of the office of President of the United
States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute
the office of President of the United States and, to the best of his ability, preserve,
protect, and defend the Constitution of the United States, and in disregard of his
constitutional duty to take care that the laws be faithfully executed, has repeatedly
engaged in conduct violating the constitutional rights of citizens.”
If you replace Nixon’s name with Bush’s, the article still stands.
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Source URL:
http://progressive.org/mag_comm0206
