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.”
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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.
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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.
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.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. During his 27-years as a CIA analyst, he chaired NIEs: he is now on the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).
Terrorism has always been the surest way to justify a power grab. Every tyrant points to "terrorists"! The terrorist threat has never been accurately described by Bush and the war against Iraq has never had anything to do with terrorism. Nothing! Stats will prove conclusively that one's chances of being "offed" by a terrorist are probably less than the chances of being struck by lightning. Giving up the Constitution of the US for an illusion, a phantom threat, is not merely a bad bargain, it's foolhardy!!
by
Len Hart (119 articles, 153 quicklinks, 0 diaries, 455 comments)
on Sunday, August 20, 2006 at 4:06:30 PM
