Text 17378, 86 rader
Skriven 2006-01-17 17:00:20 av Alan Hess
Ärende: asking for impeachment?
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Is President Bush trying to get himself impeached?  Stating flat-out that he
would disobey the law and do whatever he wants would seem to be begging
Congress to reign him in.

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Boston.com     
The Boston Globe
PHILIP B. HEYMANN
Bush must honor the rule of law

By Philip B. Heymann  |  January 12, 2006

BASED ON his constitutional powers and the authorization for the use of
military force granted by congressional resolution after the events of Sept.
11, 2001, President Bush has declared himself free to ignore any law that he
thinks limits his ability to fight terrorism. This is an extraordinary claim
for any president in a country that prides itself on a rule of law binding
government officials as well as ordinary citizens.

In signing the McCain amendment outlawing cruel, inhuman, and degrading
treatment of detainees this month, Bush announced that he might ignore the
amendment in order to fight terrorism, the very field that the amendment,
adopted by overwhelming majorities in both Houses, had specifically addressed.
The statute forbids the president only to do anything that, in the
circumstances, ''shocks the conscience," thus violating the due process clause
of the Fifth Amendment. This leaves him broad discretion and little reason to
claim powers Congress has specifically denied him. But that is what he has
done.

This is at least the fourth occasion Bush has announced that he is not bound by
statutes or treaties. He has said he is also free to ignore statutes
prohibiting torture, detention of Americans without legislative authority, and
electronic surveillance for intelligence purposes without compliance with laws
set up to regulate that activity. These claims could be consistent with
obedience to statutory law only if either the Constitution had given him
exclusive powers (a contention that few accept), or the situations in which he
claims authority were so unusual as not to have ever been contemplated by
Congress. Certainly the general words of the congressional authorization to use
force to deal with Al Qaeda were not meant to overrule every statute the
president felt was a hindrance in fighting terrorism.

In each of these cases, Congress plainly addressed the very situations in which
Bush now claims an exemption from law. The statute regulating electronic
surveillance for intelligence purposes includes emergency and wartime
exceptions. Congress had in mind the wartime detention of Japanese-Americans
when it forbade detention of an American seized far from a war zone without a
specific statute. The McCain amendment was intended to leave the president with
discretion to apply the vague constitutional standard of ''shocking the
conscience," but only that much discretion. Only the prohibition of torture is
absolute and without exception, and Congress wanted it that way.

Indeed, the president's defiance of statutory law is even bolder than this
suggests. Each of these executive actions, taken in violation of specific
statutory prohibitions, has been treated as a matter of national security
secrecy, and therefore anyone who reveals the fact that the president is
violating statutes passed by Congress is subject to the immediate threat of
prosecution under the espionage statutes. The result in the recent case of
wiretaps of Americans without judicial warrants is particularly bizarre. There
was nothing secret about our technical capacity to monitor phone calls coming
to or from the United States. Nor was there anything secret about our desire to
do so to prevent terrorism. No one has, finally, revealed whose calls or e-mail
messages were the subject of surveillance. All that could have been secret
about the activities described in the New York Times was that the president was
defying a law that most thought he had to obey.

It is a fundamental mistake to think that the central domestic conflict about
fighting terrorism is only between supporters of national security and
supporters of civil liberties of Americans. The prior question is about the
effect of law in the form of duly enacted statutes, negotiated between Congress
and the president, reconciling these competing claims. The president is
claiming that his powers to deal with terrorism as commander-in-chief override
a negotiated compromise with the Congress, embodied in a statute signed by the
president. He is saying, simply and flatly, that no law can stand in his way.
We should not accept that claim.

If the threat of terrorism is to be with us for decades, will our children and
grandchildren remember a time when our president's actions were ruled by law?

Philip B. Heymann, former US deputy attorney general, is a professor at Harvard
Law School.  
+ Copyright 2005 The New York Times Company
 

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