President's power grab threatens rule of law
(from the Editors of USA Today on January 17, 2006)
Five years ago this week, the Bush administration came into office
determined to reverse what Vice President Cheney and others regarded as
undue limits on presidential power. The administration's power grab has
reached such brazen heights that President Bush now claims he is above
the law.
For any American who thinks presidents should have the power of czars
and kings, this is good news. For the rest of us, it should raise deep
concern.
The immediate rationale for expanding executive authority is the war on
terrorism - which does, in fact, require some invasive tactics. But
the president's actions set a much broader, more enduring precedent. In
the past two months alone:
=B7 Bush acknowledged that he had secretly authorized government
eavesdropping on U.S. citizens. The president says he is not bound by
laws that specifically require approval from a special court set up to
expedite such requests. He accepts no limits.
=B7 As he signed a defense bill last month that included a provision
barring the torture of detainees, the president issued a statement
reserving the right as commander in chief to ignore the law, even
though it was overwhelmingly endorsed in Congress.
These actions follow Bush's earlier assertion that he has the authority
to seize and indefinitely imprison anyone - including American
citizens such as alleged "dirty bomb" plotter Jose Padilla - he
determines to be a threat to the nation.
Though Bush should use all legal means to protect against terror
attacks, his "the law is what I say it is" attitude threatens the
rights of all Americans and the constitutional system of checks and
balances. In the words of former representative Bob Barr, a
conservative Republican from Georgia: "President George W. Bush has ...
dared the American people to do something about it. For the sake of the
Constitution, I hope they will."
Americans fought a revolution because of the abuses of power by the
British colonial government. Writings left by many of the Founders
indicate that in dividing the government of their new country into
three branches - legislative, executive and judicial - they hoped
to avoid the danger of an all-powerful presidency.
Bush isn't the first president to try to consolidate imperial power in
the White House, just the most recent. Other such power grabs have
usually, but not always, been reined in by the courts and Congress.
During the Civil War, when the future of the nation was in graver
danger than it is today, Abraham Lincoln claimed the power to have
critics of his policies jailed and tried by military tribunals with no
recourse to the courts. The Supreme Court ruled otherwise and sent a
warning to future presidents not to try the same thing.
Early in World War II, Franklin Roosevelt ordered more than 100,000
Japanese-Americans, most of them U.S. citizens and none found to be
spies, herded into internment camps for the war's duration. The court,
to its everlasting shame, let him get away with it.
And during the Korean War, Harry Truman claimed the power to seize the
nation's steel mills in the name of national security. The Supreme
Court reminded him that Congress, not the president, has the authority
to write the laws. There's no exception for wartime.
The current Supreme Court has reinforced that view. Two years ago, in
another military-detainee case, Justice Sandra Day O'Connor said for
the court, "A state of war is not a blank check for the president."
Justice Antonin Scalia added, "If civil rights are to be curtailed
during wartime, it must be done openly and democratically, as the
Constitution requires, rather than by silent erosion."
Bush has often voiced his admiration for Scalia's view of the law. But
these days the president appears to be setting himself above it to a
greater extent than has any president since Richard Nixon.
If Bush wants to spy on Americans, he can put up with the inconvenience
of review by a special court. If he violates anti-torture laws, having
failed to persuade Congress to change them, he'll have to be
accountable.
It's up to Congress and the courts to preserve the Founders' careful
balancing of executive and legislative power. The Republican-controlled
Congress has been reluctant to challenge Bush's excesses, but that
might be changing. The Senate Judiciary Committee is planning hearings
next month on the warrantless wiretapping. Chairman Arlen Specter,
R-Pa., and committee members of both parties have joined the growing
chorus of skepticism about the legality of the eavesdropping program.
That should send a message to the White House: Unless Bush scales back
his administration's power grabs and obeys the laws Congress has
written, a constitutional showdown could well be in his future.
.
|
