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Skriven 2005-12-23 08:44:58 av BOB SAKOWSKI (1:123/140)
Ärende: Another liberal?
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By Bruce Fein
Published December 20, 2005

According to President George W. Bush, being president in wartime means
never having to concede co-equal branches of government have a role when it
comes to hidden encroachments on civil liberties.

Last Saturday, he thus aggressively defended the constitutionality of his
secret order to the National Security Agency to eavesdrop on the international
communications of Americans whom the executive branch speculates might be tied
to terrorists. Authorized after the September 11, 2001 abominations, the
eavesdropping clashes with the Foreign Intelligence Surveillance Act (FISA),
excludes judicial or legislative oversight, and circumvented public
accountability for four years until disclosed by the New York Times last
Friday. Mr. Bush's defense generally echoed previous outlandish assertions that
the commander in chief enjoys inherent constitutional power to ignore customary
congressional, judicial or public checks on executive tyranny under the banner
of defeating international terrorism, for example, defying treaty or statutory
prohibitions on torture or indefinitely detaining United States citizens as
illegal combatants on the president's say-so.

President Bush presents a clear and present danger to the rule of law. He
cannot be trusted to conduct the war against global terrorism with a decent
respect for civil liberties and checks against executive abuses. Congress
should swiftly enact a code that would require Mr. Bush to obtain
legislative consent for every counterterrorism measure that would
materially impair individual freedoms.

The war against global terrorism is serious business. The enemy has placed
every American at risk, a tactic that justifies altering the customary
balance between liberty and security. But like all other constitutional
authorities, the war powers of the president are a matter of degree. In
Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court denied
President Harry Truman's claim of inherent constitutional power to seize a
steel mill threatened with a strike to avert a steel shortage that might
have impaired the war effort in Korea. A strike occurred, but Truman's fear
proved unfounded.

Neither President Richard Nixon nor Gerald Ford was empowered to suspend
Congress for failing to appropriate funds they requested to fight in
Cambodia or South Vietnam. And the Supreme Court rejected Nixon's claim of
inherent power to enjoin publication of the Pentagon Papers during the
Vietnam War in New York Times v. United States (1971).

Mr. Bush insisted in his radio address that the NSA targets only citizens
"with known links to al Qaeda and related terrorist organizations. Before
we intercept these communications, the government must have information
that establishes a clear link to these terrorist organizations."

But there are no checks on NSA errors or abuses, the hallmark of a rule of
law as opposed to a rule of men. Truth and accuracy are the first
casualties of war. President Bush assured the world Iraq possessed weapons
of mass destruction before the 2003 invasion. He was wrong. President
Franklin D. Roosevelt declared Americans of Japanese ancestry were security
threats to justify interning them in concentration camps during World War
II. He was wrong. President Lyndon Johnson maintained communists
masterminded and funded the massive Vietnam War protests in the United
States. He was wrong. To paraphrase President Ronald Reagan's remark to
Soviet leader Mikhail Gorbachev, President Bush can be trusted in wartime,
but only with independent verification.

The NSA eavesdropping is further troublesome because it easily evades
judicial review. Targeted citizens are never informed their international
communications have been intercepted. Unless a criminal prosecution is
forthcoming (which seems unlikely), the citizen has no forum to test the
government's claim the interceptions were triggered by known links to a
terrorist organization.

Mr. Bush acclaimed the secret surveillance as "crucial to our national
security. Its purpose is to detect and prevent terrorist attacks against
the United States, our friends and allies." But if that were justified, why
was Congress not asked for legislative authorization in light of the legal
cloud created by FISA and the legislative branch's sympathies shown in the
Patriot Act and joint resolution for war? FISA requires court approval for
national security wiretaps, and makes it a crime for a person to
intentionally engage "in electronic surveillance under color of law, except
as authorized by statute."

Mr. Bush cited the disruptions of "terrorist" cells in New York, Oregon,
Virginia, California, Texas and Ohio as evidence of a pronounced domestic
threat that compelled unilateral and secret action. But he failed to
demonstrate those cells could not have been equally penetrated with
customary legislative and judicial checks on executive overreaching.

The president maintained that, "As a result [of the NSA disclosure], our
enemies have learned information they should not have, and the unauthorized
disclosure of this effort damages our national security and puts our
citizens at risk." But if secrecy were pivotal to the NSA's surveillance,
why is the president continuing the eavesdropping? And why is he so
carefree about risking the liberties of both the living and those yet to be
born by flouting the Constitution's separation of powers and conflating
constructive criticism with treason?
    
Bruce Fein is a constitutional lawyer and international consultant with
Bruce Fein & Associates and the Lichfield Group.
    
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