Bob Herbert: Bush, Lawbreaker

The Lawbreaker in the Oval Office
Published: January 12, 2006

The country has set the bar so low for the performance of George W. Bush as president that it is effectively on the ground.
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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.

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