HELEN THOMAS, Hearst Newspapers
It may come as a surprise to U.S. President George W. Bush that under the American constitutional system, no one, not even a president, is above the law.
Bush has used the 9/11 attacks as his carte blanche to initiate domestic spying on Americans without a court warrant in pursuit of terrorists, although the law is very clear that he needs court approval.
Even some of his Republican supporters think he has overstepped his authority. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, has announced plans to investigate.
Congress and the public in recent weeks have been stunned to learn that Bush has issued a secret order to the National Security Agency empowering it to listen in on the private conversations of Americans with suspected links to al-Qaida.
This completely bypasses the procedure that Congress established to prevent the abuse of government surveillance powers. That procedure was spelled out in the 1978 Foreign Intelligence Surveillance Act, which set up a secret federal court that must give its OK before the executive branch can eavesdrop on Americans.
Bush admitted at a news conference this week that he has authorized electronic spying by the NSA on Americans without seeking that permission. He claimed that he has the legal power because of his constitutional responsibility as commander in chief and because of the Sept. 14, 2001, congressional resolution authorizing the president to use «all necessary and appropriate force» in the battle against terrorists.
Bush insisted that he was absolutely within his rights to wiretap on the home front without a warrant.
There is no reason why the administration cannot seek permission from the Foreign Intelligence Surveillance Act court, which is empowered to issue warrants retroactively within 72 hours of the surveillance. This negates the administration argument that it bypassed the court to avoid any delays in pursuing a suspect.
The Washington Post reported that U.S. District Court Judge James Robertson, a member of the Foreign Intelligence Surveillance Act court, has resigned in protest against Bush’s end run.
The surveillance program is highly classified — and Bush said he intends to keep it that way, despite the uproar in Congress over the federal intrusion into private lives.
«We’re at war and we must protect America’s secrets,» Bush said. He also indicated that the Justice Department is hunting for the leakers who revealed the secret program. He called the leaks a «shameful act.»
Vice-President Dick Cheney bemoaned the restraints put on presidents in the aftermath of the Vietnam War and Watergate, both of which involved flagrant illegalities and massive deceits by chief executives.
Cheney said he believed in «a strong robust executive authority and I believe the world we live in demands it.» He added it was «no accident» that the U.S. has not been hit by a terrorist in four years.
He also warned there may be a political backlash against those who oppose the anti-terror strategy.
«The president and I believe there is a hell of a threat,» Cheney said.
Past presidents have asserted that their presidential power gives them the authority to ignore Congress. In 1952, the Supreme Court put President Harry S. Truman in his place when he ordered a takeover of the steel industry to prevent a disruption of the flow of U.S. weapons during the Korean War. Truman said his role as commander in chief gave him that authority.
Flash forward 53 years and it is now Bush discovering what Truman was told — that there are limits to presidential power, especially when a president oversteps his constitutional bounds.
December 23, 2005
HELEN THOMAS, Hearst Newspapers