NYT --- Bob Herbert --- The Lawbreaker in the Oval Office: "The country has set the bar so low for the performance of George W. Bush as president that it is effectively on the ground."
Charles Dickens
The New York Times
January 12, 2006
Op-Ed Columnist
The Lawbreaker in the Oval Office
By BOB HERBERT
http://select.nytimes.com/2006/01/12/opinion/12herbert.html?pagewanted=print
The country has set the bar so low for the performance of George W.
Bush as president that it is effectively on the ground.
No one expects very much from Mr. Bush. He's currently breaking the law
by spying on Americans in America without getting warrants, but for a
lot of people that's just George being George. Forget the complexities
of the Foreign Intelligence Surveillance Act, or even the Fourth
Amendment's safeguards against unwarranted (pun intended) government
intrusion into matters that we have a right to keep private.
On his frequent trips home to his ranch in Texas, the president likes
to ride his bicycle. He's not studying the Constitution.
"People are changing phone numbers and phone calls, and they're moving
quick," said Mr. Bush, as he defended his authorization of warrantless
eavesdropping by the National Security Agency on phone calls and e-mail
into and out of the U.S.
As the president put it, "If somebody from Al Qaeda is calling you,
we'd like to know why."
Well, that's true, Mr. President. But Congress and the Constitution
have spoken as clearly as a bright sun on a cloudless afternoon about
these matters: if you're going to eavesdrop on Americans in the U.S.,
you'd better run out and get a warrant.
You have to act fast? O.K., do what you have to do - but you then have
to apply for a warrant within 72 hours. If, after three days, you can't
explain to a court - a secret court, at that - why you need to be
spying on somebody, then you need to stop that spying.
It has become fashionable to say that this controversy is about the
always difficult problem of balancing civil liberties and national
security. But I think the issue is starker than that. The real issue is
President Bush's apparent belief - stoked at every opportunity by that
zealot of zealots, Dick Cheney - that he can do just about anything he
wants (mistreat prisoners, lock people up forever without filing
charges), and justify it in the name of fighting terror.
"There's an enemy out there," said Mr. Bush.
That's also true. But this is not China or the old Soviet Union. The
United States should be the one place on the planet where even a
devastating terror strike by Al Qaeda is unable to shake the
foundations of the government, which is grounded in the rule of law,
the separation of powers and a constitution that guarantees the
fundamental rights of the citizenry.
A group of former government officials and law professors from some of
the nation's most distinguished universities sent a letter to
Congressional leaders on Monday expressing their deep concern about the
president's domestic spying program. They said:
"Although the program's secrecy prevents us from being privy to all of
its details, the Justice Department's defense of what it concedes was
secret and warrantless electronic surveillance of persons within the
United States fails to identify any plausible legal authority for such
surveillance. Accordingly, the program appears on its face to violate
existing law."
Among those who signed the letter were William Sessions, the former
F.B.I. director, and Philip Heymann, a former deputy attorney general
who is now a professor at Harvard Law School.
The Congressional Research Service, a nonpartisan arm of Congress, also
took issue with the administration's defense of the warrantless
eavesdropping. Its analysts searched diligently but apparently in vain
for a legal justification of the spying authorized by the president.
Their detailed report on the constitutional and statutory issues raised
by the program said, "It appears unlikely that a court would hold that
Congress has expressly or impliedly authorized the N.S.A.
electronic-surveillance operations here under discussion."
The administration's attempt to justify the program, the analysts said,
"does not seem to be as well grounded" as the administration seems to
believe.
President Bush and others in the administration have repeatedly argued
that the president's wartime powers trump some of the important
constitutional guarantees and civil liberties that Americans had
previously taken for granted. They don't seem to see the irony of
fighting on behalf of liberty in Afghanistan and Iraq while curtailing
precious liberties here at home.
The administration should not be allowed to use war as an excuse. The
U.S. is a very special place in large part because no one, not even the
president, is above the law.