The Lichfield Group

This article appeared in the December 20, 2005 issue of the Washington Times.

According to President George W. Bush, being President in wartime means never having to concede that co-equal branches of government have a role hiding encroachments on civil liberties.

Last Saturday, he thus aggressively defended the constitutionality of his secret order to the National Security Agency to eavesdrop on the international communications of Americans whom the executive branch speculates might be tied to terrorists. Authorized in the wake of the 9/11 abominations, the eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA), excludes judicial or legislative oversight, and circumvented public accountability for 4 years until disclosed by The New York Times on December 16, 2005. 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, 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 United States 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 allegedly would have impaired the war effort in Korea. A strike occurred, but President Truman’s fear proved unfounded.

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

President 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 in lieu of a rule of men. Truth and accuracy are the first casualties of war. President Bush assured the world that Iraq possessed weapons of mass destruction before the 2003 invasion. He was wrong. President Franklin D. Roosevelt declared that Americans of Japanese ancestry were security threats to justify concentration camps during World War II. He was wrong. President Lyndon Johnson maintained that 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 that 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 that the interceptions were triggered by known links to a terrorist organization.

President 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 acclaim were justified, then why was Congress not asked for legislative authorization in light of the legal cloud created by FISA and the legislative branch’s sympathie 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 that 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 are citizens at risk.” But if secrecy were pivotal to the NSA’s surveillance, then 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.