Supporters of this view are dredging up quotes from former officials like George H.W. Bush 's attorney general William Barr who, according to the Washington Post, contends:
"The Constitution 's intent when we 're under attack from outside is to place maximum power in the president, and the other branches --and especially the courts --don 't act as a check on the president 's authority against the enemy. "
So there we have it: the Bush administration contention that the president 's power as commander in chief during wartime puts him above the law. Bush may bristle, as he did Monday, at a question from the press about "unchecked power, " but that is plan English for it. Whether authorizing torture or wiretaps, he reserves the right to act irrespective of domestic or international law.
Some hope can be seen in a recent remark by Republican Sen. Chuck Hagel, who told reporters:
"I took an oath of office to the Constitution. I didn 't take an oath of office to my party or to my president. "
We need to ask a similar question. What undermining of our Constitution may be going on below the surface elsewhere in the intelligence community besides un-warranted eavesdropping on U.S. citizens? Under last year 's intelligence reform legislation, Director of National Intelligence John Negroponte has under his aegis not only the entire CIA but also a major part of the FBI. Under existing law, the CIA has no police powers and its operatives are generally enjoined against collecting intelligence information on American citizens.
Since citizens ' constitutional protections do not sit atop the list of CIA priorities and its focus is abroad, it pays those protections little heed. In contrast, FBI personnel, for judicial and other reasons, are trained to observe those protections scrupulously and to avoid going beyond what the law permits. That accounts, in part, for why FBI agents at the Guantanamo detention facility judged it necessary to report the abuses they witnessed. Would they have acted so responsibly had they been part of a wider, more disparate environment in which the strict guidelines reflecting the FBI 's ethos were not universally observed?
It is an important question. In my view, the need to protect the civil liberties of American citizens must trump other exigencies when rights embedded in the Constitution are at risk. The reorganization dictated by the intelligence reform legislation cannot be permitted to blur or erode constitutional protections. That would be too high a price to pay for hoped-for efficiencies of integration and scale.
Rather, there is a continuing need for checks and balances and especially in law enforcement clear lines of demarcation within the executive branch as well as outside it. Unfortunately, the structure and functions of the "oversight board " created by the intelligence legislation make a mockery of the 9/11 commission 's insistence that an independent body be established to prevent infringement on civil liberties. Sadly, the Privacy and Civil Liberties Oversight Board created by the new law has been gutted to such a degree that it has become little more than a powerless creature of the president.
I suspect that recent revelations about arguably illegal eavesdropping hardly scratch the surface. The point is that unless Congress receives a quick injection of courage and steps up to its oversight responsibility under the Constitution, many abuses are likely to continue undetected.