[Peace-discuss] Barron's on presidential transgressions

[Morton K. Brussel]

Will the Wall Street Journal now join in?

Unwarranted Executive Power
The pursuit of terrorism does not authorize the president to make up  
new laws
By THOMAS G. DONLAN
Unnatural Disaster

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.
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