The Washington Times

. . . unlimited?
   by Bruce Fein   Published December 20, 2005

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.

Last Saturday, he thus aggressively defended the constitutionality of his secret order to the NSA to eavesdrop 
on the international communications of Americans whom the executive branch speculates might be tied to terrorists. 
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.

The war against global terrorism is serious business. The enemy has placed every American at risk, a tactic that 
justifies altering the customary balance between liberty and security. But like all other constitutional authorities, 
the war powers of the president are a matter of degree. In Youngstown Sheet & Tube v. Sawyer (1952), the 
U.S. Supreme Court denied President Harry Truman's claim of inherent constitutional power to seize a steel mill 
threatened with a strike to avert a steel shortage that might have impaired the war effort in Korea. A strike occurred, 
but Truman's fear proved unfounded.

Neither President Richard Nixon nor Gerald Ford was empowered to suspend Congress for failing to appropriate 
funds they requested to fight in Cambodia or South Vietnam. And the Supreme Court rejected Nixon's claim of 
inherent power to enjoin publication of the Pentagon Papers during the Vietnam War in New York Times v. 
United States (1971).

Mr. Bush insisted in his radio address that the NSA targets only citizens "with known links to al Qaeda and related 
terrorist organizations. Before we intercept these communications, the government must have information that 
establishes a clear link to these terrorist organizations."

But there are no checks on NSA errors or abuses, the hallmark of a rule of law as opposed to a rule of men. 
Truth and accuracy are the first casualties of war. President Bush assured the world Iraq possessed WMDs
before the 2003 invasion. He was wrong. President Franklin D. Roosevelt declared Americans of Japanese 
ancestry were security threats to justify interning them in concentration camps during World War II. He was wrong. 
President Lyndon Johnson maintained communists masterminded and funded the massive Vietnam War protests in 
the United States. He was wrong. To paraphrase President Ronald Reagan's remark to Soviet leader Mikhail 
Gorbachev, President Bush can be trusted in wartime, but only with independent verification.

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?

Bruce Fein is a constitutional lawyer and international consultant 
with Bruce Fein & Associates and the Lichfield Group.

Note: I didn't link to the Moonie Times because they'll take this down as soon as Rove calls them.

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