Wednesday, December 21, 2005
President George W. Bush, Domestic Spying, and the Rule of Law
President George W. Bush ordered the National Security Agency (NSA) to spy on U.S. citizens and foreign nationals within the United States, without seeking warrants from the secret court set up for the purpose of issuing such warrants. This conduct by President Bush violates provisions of federal law known as the Foreign Intelligence Surveillance Act (FISA). The Bush Administration does not even try to claim this domestic spying program complies with FISA.
Instead, the President and his aides have claimed the President’s legal authority to order warrantless domestic spying by the NSA resides in the Constitution, the president’s “inherent power” as commander-in-chief, congressional approval of the use of military force following the 9/11 attacks, or is justified by administration officials secretly informing certain members of Congress. However, none of these claimed legal authorities appear to allow the President to, in effect, ignore the FISA provisions that specifically address the procedures that must be followed before spying on U.S. citizens and foreign nationals within the United States is permitted. In sum, it appears President Bush may have broken the law.
No group should be more troubled by President Bush’s apparent violations of federal law than the Republicans who sanctimoniously impeached and tried President Clinton on perjury and obstruction of justice charges for allegedly lying under oath about and trying to cover up his private sexual conduct. The Republicans insisted that the impeachment and trial of President Clinton was not about sex, but rather about upholding the Rule of Law. Their lofty and eloquent arguments about the Rule of Law are instructive in considering President Bush’s conduct.
During the Senate trial of President Clinton on the Articles of Impeachment, then-House Judiciary Committee Chairman Henry Hyde (R.-Ill.) vehemently argued:
Instead, the President and his aides have claimed the President’s legal authority to order warrantless domestic spying by the NSA resides in the Constitution, the president’s “inherent power” as commander-in-chief, congressional approval of the use of military force following the 9/11 attacks, or is justified by administration officials secretly informing certain members of Congress. However, none of these claimed legal authorities appear to allow the President to, in effect, ignore the FISA provisions that specifically address the procedures that must be followed before spying on U.S. citizens and foreign nationals within the United States is permitted. In sum, it appears President Bush may have broken the law.
No group should be more troubled by President Bush’s apparent violations of federal law than the Republicans who sanctimoniously impeached and tried President Clinton on perjury and obstruction of justice charges for allegedly lying under oath about and trying to cover up his private sexual conduct. The Republicans insisted that the impeachment and trial of President Clinton was not about sex, but rather about upholding the Rule of Law. Their lofty and eloquent arguments about the Rule of Law are instructive in considering President Bush’s conduct.
During the Senate trial of President Clinton on the Articles of Impeachment, then-House Judiciary Committee Chairman Henry Hyde (R.-Ill.) vehemently argued:
Let us be clear: The vote that you are asked to cast is, in the final analysis,
a vote about the rule of law. The rule of law is one of the great achievements
of our civilization. For the alternative to the rule of law is the rule of raw
power... The ‘rule of law’ is no pious aspiration from a civics textbook, The
rule of law is what stands between all of us and the arbitrary exercise of power
by the state. The rule of law is the safeguard of our liberties. The rule of law
is what allows us to live our freedom in ways that honor the freedom of others
while strengthening the common good.
House Judiciary Committee member Rep. Ed Bryant (R.-Tenn.) argued to the Senate:
As the head of the Executive Branch, the president has the constitutional duty
to ‘take care that the laws be faithfully executed.’… In view of the enormous
trust and responsibility attendant to his high office, the president has the
manifest duty to ensure that his conduct at all times complies with the law of
the land.
In the House debate resulting in the impeachment of President Clinton, House Judiciary Committee member Rep. James Rogan (R.-Calif.) made this particularly pertinent argument:
There is no business of government more important than upholding the rule of
law. A sound economy amounts to nothing beside it, because without the rule of
law, all contracts are placed in doubt and all rights to property become
conditional. National security is not more important than the rule
of law, because without it, there can be no security and there is little left defending.... (emphasis supplied).
Equally relevant to President Bush’s authorization of warrantless domestic spying, and his administration’s justifications for it, is the argument presented to the Senate during President Clinton’s impeachment trial by House Judiciary Committee member Rep. Steve Buyer (R.-Ind.):
The president has a constitutional role of Commander in Chief.…[A]s the ‘single
hand’ that guides the actions of the armed services, it is incumbent that the
president exhibit sound, responsible leadership and set a proper example... In
order to be an effective...effective military leader, the president must exhibit
the traits that inspire those who must risk their lives at his command. These
traits include honor, integrity, and accountability…. America, again, is a
Government of laws, not of men. What protects us from that knock on the door in
the middle of the night is the law.
President Bush may believe FISA is unconstitutional. He may believe FISA’s procedures too cumbersome to adequately protect the American people. Nevertheless, FISA is the law of the land. Nothing in the U.S. Constitution authorizes the president to simply disregard, violate, or circumvent provisions of federal law he or she deems unconstitutional or impracticable. As long as FISA is the law of the land, President Bush must comply with it. If President Bush believes FISA must be changed in light of the exigencies of the “War on Terror,” our system of government mandates that he should try to get Congress to amend the law. Simply ignoring the law and violating the law are not permissible options for the president.
The righteous and high-minded members of Congress who sat in judgment of and prosecuted President Clinton believed they were articulating the standards by which all presidents should be judged. In assessing President Bush’s authorization of warrantless domestic spying in violation of FISA, the arguments leveled by the Republicans who impeached and tried President Clinton should not be overlooked or forgotten.
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