A Cautious Man
December 21, 2005
 
And A King Ain’t Satisfied
Till He Rules Everything

As you know (since you are reading a blog), the President has admitted that, despite what Federal law requires, he has issued orders for electronic surveillance of Americans in their communications with people outside of the country, with no warrant or other compliance with the Foreign Intelligence Surveillance Act (FISA). These are some of the ways he tried to explain himself at his Monday press conference -
As President and Commander-in-Chief, I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it. And after September the 11th, the United States Congress also granted me additional authority to use military force against al Qaeda.

After September the 11th, one question my administration had to answer was how, using the authorities I have, how do we effectively detect enemies hiding in our midst and prevent them from striking us again? We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives. To save American lives, we must be able to act fast and to detect these conversations so we can prevent new attacks.

So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations. This program is carefully reviewed approximately every 45 days to ensure it is being used properly. Leaders in the United States Congress have been briefed more than a dozen times on this program. And it has been effective in disrupting the enemy, while safeguarding our civil liberties.
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THE PRESIDENT: I think I've got the authority to move forward, Kelly. I mean, this is what -- and the Attorney General was out briefing this morning about why it's legal to make the decisions I'm making. I can fully understand why members of Congress are expressing concerns about civil liberties. I know that. And it's -- I share the same concerns. I want to make sure the American people understand, however, that we have an obligation to protect you, and we're doing that and, at the same time, protecting your civil liberties.

Secondly, an open debate about law would say to the enemy, here is what we're going to do. And this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States, and we take that duty very seriously.
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Q Thank you, Mr. President. Getting back to the domestic spying issue for a moment. According to FISA's own records, it's received nearly 19,000 requests for wiretaps or search warrants since 1979, rejected just five of them. It also operates in secret, so security shouldn't be a concern, and it can be applied retroactively. Given such a powerful tool of law enforcement is at your disposal, sir, why did you see fit to sidetrack that process?

THE PRESIDENT: We used the process to monitor. But also, this is a different -- a different era, a different war, Stretch. So what we're -- people are changing phone numbers and phone calls, and they're moving quick. And we've got to be able to detect and prevent. I keep saying that, but this is a -- it requires quick action.

And without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and, three, we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we're briefing Congress. This is a part of our effort to protect the American people. The American people expect us to protect them and protect their civil liberties. I'm going to do that. That's my job, and I'm going to continue doing my job.
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Q Thank you, Mr. President. I wonder if you can tell us today, sir, what, if any, limits you believe there are or should be on the powers of a President during a war, at wartime? And if the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?

THE PRESIDENT: First of all, I disagree with your assertion of "unchecked power."

Q Well --

THE PRESIDENT: Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times.

This is an awesome responsibility to make decisions on behalf of the American people, and I understand that, Peter. And we'll continue to work with the Congress, as well as people within our own administration, to constantly monitor programs such as the one I described to you, to make sure that we're protecting the civil liberties of the United States. To say "unchecked power" basically is ascribing some kind of dictatorial position to the President, which I strongly reject.

Q What limits do you --

THE PRESIDENT: I just described limits on this particular program, Peter. And that's what's important for the American people to understand. I am doing what you expect me to do, and at the same time, safeguarding the civil liberties of the country.
At no point is a judge mentioned, in this process. There's a reason for that - the Administration apparently decided that they did not need judges, or warrants, or any other procedures specifically called for in the law. FISA allows warrantless interceptions of communications, but only if they involve foreigners or foreign governments, and only if it is clear that people in America will not be the subject of the communication.

As Steven Hart has pointed out, this incident may be separating the "real" conservatives from those he calls the "royalists" (who apparently support everything and anything the current President decides to do). One of the "non-royalist" or "real" conservatives noted by Mr. Hart is Bruce Fein, a former Reagan administration official, who wrote the following -
According to President George W. Bush, being president in wartime means never having to concede co-equal branches of government have a role when it comes to hidden encroachments on civil liberties.
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Authorized after the September 11, 2001 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for four years until disclosed by the New York Times last Friday. Mr. Bush's defense generally echoed previous outlandish assertions that the commander in chief enjoys inherent constitutional power to ignore customary congressional, judicial or public checks on executive tyranny under the banner of defeating international terrorism, for example, defying treaty or statutory prohibitions on torture or indefinitely detaining United States citizens as illegal combatants on the president's say-so.

President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
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The NSA eavesdropping is further troublesome because it easily evades judicial review. Targeted citizens are never informed their international communications have been intercepted. Unless a criminal prosecution is forthcoming (which seems unlikely), the citizen has no forum to test the government's claim the interceptions were triggered by known links to a terrorist organization.

Mr. Bush acclaimed the secret surveillance as "crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." But if that were justified, why was Congress not asked for legislative authorization in light of the legal cloud created by FISA and the legislative branch's sympathies shown in the Patriot Act and joint resolution for war? FISA requires court approval for national security wiretaps, and makes it a crime for a person to intentionally engage "in electronic surveillance under color of law, except as authorized by statute."

Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon, Virginia, California, Texas and Ohio as evidence of a pronounced domestic threat that compelled unilateral and secret action. But he failed to demonstrate those cells could not have been equally penetrated with customary legislative and judicial checks on executive overreaching.

The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping? And why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?

And by the way, Mr. Fein is a man of strong opinions with respect to Presidential misconduct. This is what he had to say in 1997, regarding then-President Clinton's fundraising activities -
President Clinton's conceded shameless and calculated exploitation of the White House to extract, entice or reward partisan political contributions is an impeachable offense under Article II, Section 4 of the U.S. Constitution.

House Judiciary Committee Chairman Henry Hyde of Illinois should commence an impeachment inquiry aimed toward indicting the president for the "high misdemeanor" of gross betrayal of the public trust by systematically employing the perquisites of office (and perhaps prerogatives over foreign policy toward China) for private financial advantage.

The architects of the Constitution were masters of human nature and history. They understood the propensity of the powerful, especially a chief executive, to circumvent the law or to wield official discretion in ways that dangerously subvert public confidence in the integrity and legitimacy of government.
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In other words, impeachable offenses were envisioned as political crimes against the nation, which might or might not be indictable under the criminal code. The House Judiciary Committee voted articles of impeachment against President Nixon, but his unprecedented resignation ended any further proceedings. The vast scholarly and political debate that emerged from the Nixon impeachment proceedings yielded an overwhelming consensus that removal of a president from office would be proper for grave political misconduct (not mere foibles) that tears at the social tapestry of trust, honor and fairness.

So, to sum up. If one is of the view that circumventing a clear law, in order to engage in secret surveillance and searches of Americans, is a "grave ... misconduct ... that tears at the social tapestry of trust, honor and fairness", what's the next step?

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