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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 22, 2005

Do Bush defenders place any limits on his "wartime" power?

Virtually no serious Bush defenders claim any longer that the Administration's warrantless eavesdropping on American citizens was authorized by FISA. To the contrary, FISA expressly prohibited such surveillance. Thus, to defend George Bush they must literally claim that the President has the right during "wartime" to violate Congressional statutes which relate to national security.

If Bush does not have the right to break the law, then -- aside from arguing that the Congressional authorization to use force in Afghanistan allowed warrantless eavesdropping on American citizens at home -- there is no defense to Bush's having ordered warrantless surveillance when FISA expressly prohibited that. Thus, many Bush defenders are now arguing, as they must, that a "wartime" President's power is so vast that it even includes this law-breaking power.

But the same individuals peddling this theory are simultaneously objecting quite vigorously to the notion that they are bestowing George Bush with the powers of a King. Bill Kristol and Gary Stevenson, for instance, called such claims "foolish and irresponsible" in the very same Washington Post Op-Ed where they argued that Bush need not "follow the strictures of" (i.e., obey) the law, and the President himself angrily denied that he is laying claim to a "dictatorial position" in the very same Press Conference where he proudly insisted on the right to eavesdrop on Americans without a warrant even though FISA makes it a crime to do so.

On its face, this theory that Bush as a "wartime" President has the right to break the law squarely contradicts their insistence that they are not advocating for monarchic rule. Once you advocate a theory that authorizes a President, even during times of an undeclared and endless war, to violate any Congressional laws he wants as long as he says -- with no judicial review possible -- that doing so is for the sake of our security, what possible checks or limitations on Presidential power are left?

This debate is about the President's claimed wartime power to break the law, not his power to order surveillance. Put another way, for those who want to advocate this theory of unilateral executive power -- but who then also want to deny that they are foisting upon America the King it never wanted -- the question that must be answered is this:

Are there any limitations at all on what the President can do under the guise of national security and, if so, what are they? And, given this theory of the "wartime" President who can violate the laws of Congress and who can ignore the courts in areas of national security, what legal foundation could exist to argue for any such limitations?

In what way are these wartime powers which we are hearing belong to George Bush -- including the right to ignore Congressional law -- not accurately described as the powers of a King? What defining powers of a King does George Bush lack under this framework? Bush defenders such as Bill Kristol pay lip service to the notion that their theory is "not an argument for an unfettered executive prerogative," but they never say what limits on executive power exist. That is because their theory, by its nature, posits that there are no limits -- not even the limits of law -- and they just seem unwilling to be honest and admit that. If that's not the case, they should tell us what limits they think exist on Bush's powers.

Over the last month, we have had raucous, seemingly democratic arguments over issues such as Congress' attempt to bar the use of torture and the renewal of the Patriot Act. But why do these debates matter at all? Who really cares what legislation Congress passes in these areas? After all, as a "wartime" President, doesn't Bush have the right to use whatever interrogation and surveillance techniques he wants, even if Congress expressly forbids them by law? If he can violate FISA at his whim, doesn't it follow that he can violate the McCain Amendment and exercise even those interrogation and surveillance powers which Congress refuses to renew under the Patriot Act?

And the same question applies to the Fourth Circuit's Administration-rebuking decision yesterday in the Padilla case -- who cares what the courts say about how the Government should treat "enemy combatants"? We are at war, say Bush's defenders, and Bush thus has the unfettered power to make those decisions himself without any interference from Congress or the judiciary. And if the Congress or the federal courts try to limit what he can do in these areas, doesn't he have the absolute right to ignore those limits and do what he wants anyway?

These are not academic questions. Quite the contrary, it is hard to imagine questions more pressing. We are at a moment in time when not just fringe ideologues, but core, mainstream supporters of the President -- not to mention senior officials in the Administration itself – are openly embracing the theory that the President can use the power and military force of the United States to do whatever he wants, including to and against U.S. citizens, as long as he claims that it is connected to America’s "war" against terrorists – a war which is undeclared, ever-expanding, and without any visible or definable end.

While Bush advocates have long been toying with this theory in the shadows, the disclosure that Bush ordered warrantless eavesdropping on American citizens in undeniable violation of a Congressional statute has finally forced them to articulate their lawless power theories out in the open. Bush got caught red-handed violating the law, and once it became apparent that no argument could be made that he complied with the law, the only way to defend him was to come right out and say that he has the right to break the law. So that debate -- over the claimed limitlessness of George Bush's power -- can't be put off any longer.

To their credit, there are Administration defenders who are nakedly honest about what they see as the limitlessness of George Bush’s "wartime" power. The Vice President, for one, certainly doesn’t seem to think there any such limits and has no problem saying so:

"I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," Cheney said. In wartime, he said, the president "needs to have his constitutional powers unimpaired."

And here is former Bush 41 Attorney General William Barr simply admitting that he believes there are no limits on Presidential power in "wartime" -- which, of course, includes right now and will include, at a minimum, the remainder of Bush's term in office:

Yet Bush supporters believe that other branches should take a subsidiary role to the president in safeguarding national security. "The Constitution's intent when we're under attack from outside is to place maximum power in the president," said William P. Barr, who was attorney general under President George H.W. Bush, "and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy."

It is true by definition that if -- as Cheney and Barr claim -- the "other branches" don’t "act as a check on the president’s authority," then nothing does. How is it possible for anyone who ascribes to this view to deny that they are advocating an "unchecked" monarchic President when what they are advocating is, by logical necessity, exactly that?

Adopting such a theory has grave and immediate consequences. Marvel at the expansive list of extraordinary powers we have been told -- just in the last few days alone -- the President possesses, and which nobody, neither Congress nor the judiciary, has any ability to stop or even to limit:

Bush can unilaterally declare war and then, based on his own unchecked declaration, exercise unlimited wartime powers. He can ask Congress to change laws he doesn't like and then violate them anyway if it refuses. He can strip American citizens of the legal protections of citizenship by unilaterally declaring with no trial that they are affiliated with terrorism. And, according to Circuit Judge Richard Posner yesterday, Bush can monitor the conversations not just of people suspected of having ties to Al Qaeda -- a limitation which Posner says is "too restrictive" -- but can (and, says Posner, should) expand that group without limits, even to include "[i]nnocent people, such as unwitting neighbors of terrorists, [who] may, without knowing it, have valuable counterterrorist information."

Once it is accepted that George Bush has the power to violate the laws of the United States (such as FISA) based on his status as a "wartime" President, there is no coherent way to claim that he is without the power to unilaterally impose still-greater intrusions. A theory that allows the President to violate Congressional statutes and which denies any role of judicial review is a theory which has no theoretical or legal ground for limiting the President’s conduct in any way during "wartime."

Thus, beyond this jarring list of impressive new powers which Bush defenders want to bestow on him, would not this new Bush-defending theory of the wartime Presidency also necessarily allow the President, in the name of national security, to do all of the following:

* Ignore Congressional refusal to renew certain provisions of the Patriot Act by exercising the powers under those provisions anyway;

* Violate the McCain Amendment's prohibition on torture by claiming that it unduly restricts his authority to conduct the war how he sees fit;

* Eavesdrop without a warrant on domestic telephone calls between American citizens, rather than purely international communications, and expand this surveillance to include the monitoring of e-mail and other computerized communications between American citizens;

* Secretly place cameras in the homes of American citizens to enable the monitoring to be visual as well as audio;

* Order the detention of editors and reporters of newspapers, such as the New York Times, which publish classified information which the President believes --
as he repeatedly said was the case with respect to the NSA disclosures -- harm national security and "help Al Qaeda";

* Rather than indefinitely imprisoning them, execute U.S. citizens who, like Jose Padilla, are declared based purely on Presidential decree to be "enemy combatants" of the United States;

* Arrest members of domestic anti-war groups and other opponents of the President's military policies – the same groups on which the FBI and Pentagon have been spying – on the ground that such groups impede the U.S. war effort and constitute a threat to national security.

The issue here is not the likelihood that this Administration would want to engage in such conduct. The question is whether, as certainly seems to be the case, these theories of the Unchecked Executive being wielded in defense of George Bush would permit this Administration -- or a future Administration -- to do these things. If so, that ought to be stated explicitly.

This Administration -- from Jose Padilla to its torture policies and now with its law-defying eavesdropping on American citizens -- has unmistakably signaled that it ascribes to theories of the wartime Executive which give the President powers at least as great as any other prior administration ever claimed. In case there is any doubt about this, the Administration has made clear that it believes that the Executive must get stronger and stronger:

Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

And it is always worth remembering that the genesis for this theory, at least in this Administration, is the absolutist position laid out in the September, 2001 Yoo Memornadum:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

If a theory of limitless Executive power is not what Bush defenders are advocating, then it is incumbent upon them to articulate what limitations they believe exist on Presidential power in times of undeclared war. What is it that courts or Congress can do, if anything, to serve as a check on these powers?

Dick Cheney, William Barr, Bill Kristol, and Richard Posner all seem to think that the answer is "nothing." For those who want to claim that Bush had the authority as a "wartime" President to simply break the law with regard to warrantless eavesdropping on Americans, what other answer can they can coherently give?

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