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Why Doesn’t Presidential Dismantling of the Constitution Get the Same Intense Scrutiny as Presidential Adultery?

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Eight years ago, a president entering his sixth year in office came under suspicion: had he conducted an adulterous affair with a young intern? For months thereafter, the media could talk of little else. It was the national topic of conversation for most of that year. The House eventually impeached the president, and the Senate tried him.

Now again, a president entering his sixth year in office has come under suspicion: has he deliberately and unjustifiably violated both the Constitution and federal statutes by conducting searches without a warrant? But this suspicion is not getting anything like the kind of media attention of the Monica Lewinsky story.

Why is that?

The presidential oath of office states: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States." Thus the core of his job is expressed in terms of defending, not our standard of living, nor even the general welfare, but our Constitution itself.

So why was Monica more deserving of attention? None of the possible "explanations" can stand as justifications.

1) The grounds for suspecting President Bush of violating both the letter and the spirit of his oath of office are not weaker than were the grounds for suspecting President Clinton of hanky-panky with an intern.

2) The possible wrong-doing by the current president would in no way be less important for Americans to confront than the wrong-doing of his predecessor; indeed, the present suspicion against the president is precisely the kind of thing that most worried our Founding Fathers.

3) The media may assume that the American people are less interested in protecting the Constitution than in sex scandals, but they haven't bothered to test that proposition. And even if it were true, that would not justify the failure of the press to fulfill its duty as watchdog and protector of our democracy.

Grounds for Suspicion

The president has admitted to ordering wiretaps to be conducted without getting the court warrants required by the 4th Amendment to the Constitution and by the Foreign Intelligence Surveillance Act (FISA) of 1978. To justify his actions, he and his people have made two claims: first, that they had the legal authority to do so; and second, that their actions were required for the sake of national security in a time of war.

It is hardly reassuring about the moral and intellectual integrity of this administration that the legal justifications offered thus far are regarded as almost laughably flimsy by the independent legal authorities who have commented on them.

First, they've claimed that the congressional authorization to fight the terrorists abroad, passed in the aftermath of 9/11, also authorized domestic surveillance. But the language of the enabling legislation supports no such claim, and the record of the debate at the time suggests that the Bush administration fully understood that such authorization would require additional provisions that Congress expressly declined to enact. In addition, why would President Bush have given his subsequent (false) public reassurance that his administration abides by the requirement to get warrants before conducting searches if he felt he'd been authorized by Congress to do otherwise?

Second, the Bush administration claims that the powers constitutionally given to the president as commander-in-chief permits him to do whatever he pleases in waging war, regardless of the law or of the prerogatives of the other branches of the government. Such a claim has been widely regarded by legal scholars as baseless as a reading of the Constitution, and as antithetical to the whole spirit of our constitutional system.

Still, there could be important national security reasons for a president to violate the law. And it's possible that the American people -whether wisely or not would be willing to allow the president to take illegal measures if they were required to defend the nation. But here, too, there are also reasons to doubt the presidential claims that his apparently illegal actions have been required by the demands of national security.

FISA created a court especially for the purpose of issuing such warrants, and it has issued many thousands of such warrants, while refusing only four. The law even makes provision for those situations in which urgency makes it impractical to go first to court: the executive has three whole days after emergency surveillance to come to the court for its actions to be scrutinized and validated.

So what legitimate national security reason there might be that would have prevented the president from both protecting the nation and obeying the law and the Constitution?

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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
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