The Constitution: Checking a Would-Be King
by Ray McGovern
Who can forget the chutzpah of President George W. Bush as he bragged
to Bob Woodward, "I'm commander in chief.... That's the interesting thing
about being president...I don't feel like I owe anybody an explanation."
* * *
Wrong, Mr. President. You and Vice President Cheney seem to have
missed "Constitution 101." And you seem to have laughed off admonitions
against hiring lawyers eager to give an obsequious nihil obstat to whatever
you want to do. You have allowed the likes of David Addington, Alberto
Gonzales, John Yoo to do what Sen. Chuck Hagel (R, Nebraska) has accused you
and your advisers of doing regarding Iraq-"making it up as they go along."
It's enough to make one conclude that Shakespeare may have been right about
lawyers.
Mr. President, you just can't keep making things up-things like
"unitary executive," and "unlawful combatant," and "military tribunals" and
"enhanced interrogation techniques." You cannot make-believe them into law.
These faux-legal constructs are now coming home to roost.
Contrary to what you have been quoted as saying, the U.S. Constitution
is not just another piece of paper. Indeed, it seems to be getting a new
lease on life these days. This week you and your lawyers ran into a tough
judge who takes the Constitution very seriously indeed and shows no sign of
bending with the prevailing winds.
* * *
Thursday's ruling by Judge Anna Diggs Taylor of the U.S. District
Court in Detroit against warrantless eavesdropping did not beat around the
bush, so to speak. Her strong words would, I imagine, have brought broad
smiles to the faces of those who crafted the Constitution-despite the irony
that, in that sad time of racial exclusion, they would not have thought to
include Judge Taylor in "We, the people."
The power and simplicity of her words brought immediately to mind
another distinguished African American woman and jurist who rose to the
occasion a generation ago during the impeachment proceedings against
President Richard Nixon. A member of the House Judiciary Committee that
approved articles of impeachment against a president she described as
"swollen with power and grown tyrannical," Rep. Barbara Jordan (D, Texas)
addressed her colleagues:
"My faith in the Constitution is whole; it is complete; it is total. I
am not going to sit here and be an idle spectator to the diminution, the
subversion, the destruction of the Constitution.... The Constitution charges
the president with the task of taking care that the laws be faithfully
executed."
Judge Anna Diggs Taylor's unminced words on Thursday resonated with
those sentiments-and some righteous anger. She ruled that Bush's
eavesdropping program is "obviously in violation of the Fourth Amendment" as
well as the 1978 Foreign Intelligence Surveillance Act (FISA), which
expressly forbids eavesdropping on Americans without a court warrant. She
gave short shrift to the White House argument that the president's powers as
commander in chief of the armed services in time of war enable him to
disregard this and other laws. The administration's painfully stretched
contention that the post 9/11 congressional authorization of force somehow
gave the president the authority to disregard FISA was also summarily
rejected.
Political Posturing
Eight months have gone by since James Risen's exposé of the
eavesdropping program appeared in the New York Times, so we would do well to
call up some key facts-especially since demagoguery and posturing is again
in full swing. Rep. Peter Hoekstra (R, Michigan) immediately castigated
Judge Taylor for "taking it upon herself to disarm America during a time of
war." Hoekstra is chair of the House intelligence committee charged with
overseeing (overlooking?) NSA and other programs. Also on Thursday, Speaker
Dennis Hastert (R, Illinois) spiced things up, claiming that the
eavesdropping program "saved the day by foiling the London terror plot." (If
that is true-admittedly a big IF, given the administration's credibility
record on such matters-the Justice Department should go after Hastert
immediately for gross violation of important laws against divulging sources
and methods.)
On Friday, President Bush reverted to the administration's scripted
response: "If al-Qaeda is calling in to the United States, we want to know
why they're calling." Bush asserted that opponents of the warrantless
eavesdropping program "do not understand the nature of the world in which we
live." Striking the podium for emphasis, Bush added, "I strongly disagree
with that decision."
Spare the podium, Mr. President. Like the Constitution, it will stand
up to your blows.
Lost in the underbrush is the reality that the architecture of FISA
was shaped not only to protect the privacy of Americans but also to give the
White House considerable latitude in pursuing time-urgent opportunities. For
example, the executive branch is permitted to eavesdrop on conversations for
three days without having to seek a warrant from the FISA court. And, when
sought, warrants have been virtually automatic.
Mr. FISA on FISA
When questioned about the legality of President Bush's eavesdropping
program on May 8, widely respected Admiral Bobby Ray Inman, who was director
of the National Security Agency (NSA) when the FISA law was drafted (and
later deputy director of the CIA), said:
"There clearly was a line in the FISA statutes which says you couldn't
do this...There was even an extra sentence put in the bill that said, 'You
can't do anything that is not authorized by this bill.'"
Inman criticized the decision not to do the appropriate thing and go
to Congress to revise the statute, if the administration truly felt that
FISA needed amending to deal with issues not anticipated in 1978.
But They DID Go to Congress, Sort of...
What has escaped notice is that the White House did take soundings in
Congress. This has been known since Dec. 19, 2005 when Attorney General
Alberto Gonzales was asked at a press conference why the administration did
not seek new legislation to enable it to conduct such a program legally-why
the "backdoor approach?" In an unguarded moment Gonzales tied himself in
knots trying to have it both ways:
"This is not a backdoor approach. We believe Congress has authorized
this kind of surveillance. We have had discussions with Congress in the
past-certain members of Congress-as to whether or not FISA could be amended
to allow us to adequately deal with this kind of threat, and we were advised
that that would be difficult, if not impossible."
Strange. If you believe you already have congressional authorization,
why sound out members of Congress on the prospects for obtaining
authorization? Besides, deliberations on this issue took place in the
immediate post-9/11 atmosphere in which the draconian Patriot Act sailed
through Congress. Surely the way would have been clear for any reasonable
proposal to amend the already flexible FISA. As James Risen has quipped, "In
October 2001 you could have set up guillotines on the public streets of
America."
It is hard to escape the conclusion that the eavesdropping program
(since dubbed the "Terrorist Surveillance Program") was of such scope and
intrusiveness into our constitutional rights that it stood no chance of
being approved even in the immediate post-9/11 atmosphere.
So Who Cares?
Administration leaders keep telling us that the "Terrorist
Surveillance Program" is necessary to intercept communications between
al-Qaeda terrorists and Americans who might be in cahoots with them. Details
about the program are denied even to overseers in Congress-including
see-no-evil, neutered watchdog Hoekstra. And as Hoekstra and his colleagues
stoke citizen fears with charges that opponents are trying to "disarm
America," most Americans have been taken in. How many of your friends have
told you, "I don't care if my telephone calls are monitored; I'm not talking
to al-Qaeda." Do you care if the administration is monitoring the phone
calls of Sen. Judiciary Committee Chair Arlen Specter? I keep asking myself
why it is that, after initially expressing grave doubts about the legality
of the eavesdropping program, Specter now has not only caved in, but has
actually drafted legislation that would give the president virtually every
authority he seeks.
Lessons of History
The widespread complacency in the United States calls to mind that of
the obedient German citizens who acquiesced during an analogous time during
the thirties. On February 27, 1933, as Adolf Hitler reached for unchallenged
power, the Reichstag building, Germany's parliament, was destroyed in a
fire. Hitler took full advantage of this 9/11-like calamity to whip up fear
of "terrorists"-in this case, Communist terrorists-and to impose legislation
curtailing the rights of German citizens. The vast majority of German
citizens acquiesced.
In Defying Hitler: A Memoir, Sebastian Haffner provides an eyewitness
account of those days in Berlin:
"With sheepish submissiveness the German people accepted that, as a
result of the fire, each one of them lost what little personal freedom and
dignity was guaranteed by the constitution; as though it followed as a
necessary consequence.... more than one [of my colleagues] hinted that they
had doubts about the official version; but none of them saw anything out of
the ordinary in the fact that, from now on, one's telephone would be tapped,
one's letters opened, and one's desk might be broken into." (pp 121-122)
Déjà vu? At 73, Judge Anna Diggs Taylor is old enough to remember. And
she is certainly old enough to have lived through the indignities suffered
by Dr. Martin Luther King, Jr. and so many others at the hands of the
wire-tapping-happy head of the FBI, J. Edgar Hoover-who was an inadvertent
catalyst for the FISA legislation.
In other words, Judge Taylor has a firm grasp of the burgeoning danger
to our liberties in these times and the need for scrupulous adherence to the
rule of law-a grasp akin to that of the framers of the Constitution. This is
a good thing. One can only hope and pray that her colleagues on the bench
will display equal integrity and steadfastness.
Ray McGovern works with Tell the Word, the publishing arm of the
ecumenical Church of the Saviour in Washington, DC. He was a CIA analyst for
27 years and is co-founder of Veteran Intelligence Professionals for Sanity
(VIPS).
© 1998-2006 Seattle Post-Intelligencer
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