In a 1977 interview with David Frost, Richard Nixon made a comment that became seared in the American psyche as a perfect example of how a president must not treat the office. Frost asked Nixon if he believed a president is entitled to act illegally if he believes it is in the best interest of the nation. Nixon replied, “When the president does it, that means that it is not illegal.” It was a comment that displayed the contempt Nixon had for the law—and America could be thankful that he was not in a position to continue turning that contempt into presidential policy.
After a series of extraordinary events last month, the same unfortunately cannot be said about the person who currently occupies the Oval Office. In a stunning New York Times story on December 16, America learned that “President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying.” The Times then noted that “some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.” (Translation from Times-ese: people involved know it is illegal.)
Nixon waited a few years after Watergate to disclose his sheer contempt for the law. Bush, by contrast, waited less than 24 hours. The Associated Press noted that instead of admitting guilt—or even fabricating a serious legal justification—Bush said “he has no intention of stopping his personal authorizations of a post-Sept. 11 secret eavesdropping program in the U.S.” It also noted that “Bush said he had reauthorized the program more than 30 times since the terrorist attacks of Sept. 11, 2001, and plans to continue doing so.”
To be sure, broad, happy-sounding phrases were trotted out by the White House to reassure Americans about the legality and benign consequences of the president’s actions. “Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans,” reported the Times in its December 16 story. Bush himself claimed his actions were “consistent with U.S. law and the Constitution.” Yet he provided no detail as to how ignoring the requirement for search warrants—a requirement vested in the Constitution’s “search and seizure” doctrine—is anything but inconsistent with federal law, and thus unconstitutional.
But then, if you read the news carefully, it is clear that administration officials never really thought that what they were doing was legal in the first place. “President Bush did not ask Congress to include provisions for the NSA domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation,” the Times stated at the very end of its piece. Why? Because, as the Times noted, the White House knew “the proposal would be certain to face intense opposition on civil liberties grounds.”
That’s right. At the same time that administration officials were claiming they really believed Bush’s actions were legal, Bush in fact knew that he had to ask Congress for statutory approval first. However, he specifically decided not to, because he knew Congress would refuse. He couldn’t get what he legally needed to subvert Americans’ civil liberties, so he decided to pretend he didn’t need anything at all. The result was a new White House policy that mixed two well-known shibboleths: the military’s homosexuality policy, and Nike’s marketing slogan. Only the policy had nothing to do with gay soldiers or sneakers. It was “Don’t ask, don’t tell—just do it,” a dangerous doctrine indeed.
Within hours of the New York Times‘s release of its first story about the domestic spying, it became clear that the White House’s legal explanations were falling flat. Administration officials claimed with a straight face that the post-9/11 congressional resolution authorizing the president to pursue Al Qaeda gave Bush the authority to ignore the Constitution and federal statutes. Not only is that reasoning insultingly preposterous, but during the original crafting of the resolution and congressional debate on it (which courts could later use to interpret congressional intent), lawmakers of both parties explicitly warned the White House that the resolution did nothing of the kind.
In the Senate, for example, Ted Stevens (R-AK), the president pro tempore, said in a floor speech on September 14, 2001: “Some people say [the resolution] is a broad change in authorization to the Commander in Chief of this country. It is not. It is a very limited concept.” In the House, Jim McGovern (D-MA) agreed, noting that the resolution merely “reiterates the existing constitutional powers of the president to take action to defend the United States, but provides no new or additional grant of powers to the president.”
Without a credible legal basis to support him, Bush next sought a rationale to convince the general population that his behavior was acceptable. To do that, he reflexively invoked the lowest common denominator: fear.
THE NEED FOR SPEED—At a press conference two days after details of the domestic spying operation were exposed, Bush was asked why he felt the need to order domestic surveillance operations without obtaining warrants. “This is a different era, different war,” he responded. “It’s a war where people are changing phone numbers and phone calls, and they’re moving quick. And we’ve got to be able to detect and prevent. I keep saying that. But this is—it requires quick action.”
In the parlance of the 1980s macho film Top Gun, Bush was saying “I feel the need . . . the need for speed.” And at first glance, it is a seemingly logical argument. Terrorists in the information age can move quickly, and law enforcement needs to be able to move just as quickly. If Bush isn’t allowed to break the law, we are asked to believe, then he won’t be able to move quickly—and that means we should fear that America isn’t being protected from terrorist attacks.
But there’s just one problem: law enforcement already has the ability to move as quickly as Bush wants through existing, warrant-requiring legal channels. Put another way, the president’s legal obligation to obtain a warrant for domestic spying in no way inhibits the speed with which surveillance operations can be ordered and deployed.
How is that possible? Because domestic spying warrants are granted by secret courts created by the Foreign Intelligence Surveillance Act (FISA). In these FISA courts, the government is permitted to obtain warrants retroactively. The government can immediately order surveillance operations, and then go back and get a warrant, meaning the warrant process never precludes “the need for speed.”
And it’s not like getting a warrant from a FISA court is difficult. As journalist/blogger Josh Marshall pointed out, the government’s own data shows that “in a quarter century, the FISA Court has rejected four [out of more than 15,000] government applications for warrants.”
As former Secretary of State Colin Powell said when asked about it on ABC’s Nightline, “It didn’t seem to me, anyway, that it would have been that hard to go and get the warrants.” Powell noted that “even in the case of an emergency, you go and do it [begin surveillance]. The law provides for that. And three days later, you let the court know what you have done, and deal with it that way.”
“PAPERWORK” AS AN EXCUSE—With two high-profile swings and misses in trying to explain away the president’s law-breaking, the Bush administration trotted out Michael Hayden, who was the director of the NSA when Bush first ordered the domestic surveillance, and who is currently Bush’s deputy director of national intelligence. The Washington Post reported that in a press briefing designed to defend the president’s refusal to seek FISA court warrants, “Hayden said getting retroactive court approval is inefficient because it ‘involves marshaling arguments’ and ‘looping paperwork around.'”
At last the White House’s total disdain for the law was out in the open. Administration officials were saying they simply didn’t feel like “marshaling arguments” or doing the “paperwork” that the law requires.
There is much evidence to suggest that the protections of the law are especially needed in the Bush era. Two years ago, the New York Times wrote that the White House was using the FBI to “collect extensive information on the tactics, training and organization of antiwar demonstrators.” In July 2005, the Times reported that the FBI had “collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups.” And just last month, NBC News obtained a 400-page Pentagon document outlining the Bush administration’s surveillance of anti-war groups. The report noted that the administration had monitored 1,500 different events the groups had participated in within just a 10-month period.
LAW-BREAKING AS INFOTAINMENT—The truth is, domestic surveillance operations happen all the time, as they have for years. But they are also governed by the U.S. Constitution’s 4th Amendment, which explicitly protects citizens against “unreasonable searches and seizures” and requires the executive branch to obtain a warrant from the judiciary branch in order to conduct surveillance operations.
This is not some esoteric legal theory—it’s basic high school civics. But apparently even that level of understanding is either over the head of or simply not of interest to the mainstream media. Instead of a debate over the real question—whether a president is or is not required to follow laws—America is being treated to a pro-national-security versus anti-national-security storyline wholly divorced from reality.
As an example, in a bantering exchange on NBC’s Today show, Katie Couric asked Tim Russert, “Is this going to be a case of a debate by legal analysts and constitutional scholars versus Americans, who say civil liberties are important, but we don’t want another September 11?” And Russert replied, “Exactly”—as if the only people who care about civil liberties and privacy are a few university eggheads.
The pundits in our midst did exactly the same thing. Take conservative bloviator William Kristol, who is somehow still given a media platform as a legitimate commentator, even though he pushed the false WMD case for the Iraq War. The Washington Post granted him space on its editorial pages to pen a fawning congratulation to President Bush for trampling upon the Constitution in what we are expected to believe—without any proof—was simply an honest White House effort to protect national security. Kristol also appeared on a Fox News Sunday show demanding to know why President Bill Clinton hadn’t ordered the same kind of illegal surveillance when he was in office.
Not surprisingly, the right-wing Democratic Leadership Council also got into the act. Undermining congressional Democrats like Senator Russ Feingold (D-WI), who courageously demanded answers from the president, the DLC’s Marshall Wittman published a screed on his blog saying that Bush’s law-breaking was entirely justified, even though the public still hasn’t been given one justification that holds water. Once again dishonestly trying to turn the situation into a pro-national-security versus anti-national-security debate, he attacked critics of the president as “act[ing] as if the [terrorist] threat has gone away.”
Wittman, a former Christian Coalition staffer and GOP operative who now purports to speak for Democrats, claimed that the FISA warrant process is “often burdensome and slow with a relatively high standard of proof.” He apparently felt comfortable pontificating as an expert even though he was totally oblivious to the FISA courts’ retroactive privileges, which ensure expeditious surveillance; to the tiny number of warrants that have ever been rejected; and to the reality that, as the on-line magazine Slate noted back in 2003, there is “no need for evidence or probable cause” to get a warrant from a FISA court in the first place.
Topping off this display of ignorance, Wittman claimed that “there is absolutely no evidence” that the president was breaking the law to perform surveillance on his political enemies—again, ignoring all of the recent news about the administration’s doing just that: spying on anti-war, environmental, civil rights and anti-poverty groups.
“AUTHORIZING” LAWBREAKING—Perhaps most interesting of all in the Beltway coverage of the spying issue was the language employed to describe what had happened. From the moment the story broke, reporters parroted the White House’s terminology—terminology specifically crafted to make it sound as if Bush’s patently illegal actions had a quasi-legal basis.
For instance, the New York Times told us that Bush “secretly authorized the National Security Agency to eavesdrop on Americans.” The paper also referred to “the powers granted the NSA by President Bush.” The word authorize is defined as “to grant power or authority to,” and the word grant is the act of giving something one has. The use of these terms is a (perhaps subconscious) effort by the media/political establishment to make the public assume that Bush had the right to grant something when he did not.
This framing bled into other major media as well. Just after the spying situation blew up, the Associated Press reported that President Bush, in his weekly radio address, said that “he has no intention of stopping his personal authorizations of a post-September 11 secret eavesdropping program in the U.S.” That’s right: “his personal authorizations,” as if he can just go around “authorizing” whatever he wants, without regard to the fact that such powers are not his to bestow.
The tragedy of it all is that the most critical question has never been answered—or even asked: If the president is permitted to break this law with no concrete justification at all, what law isn’t he allowed to break? Can he rob a convenience store if he feels like it? Can he pocket taxpayer money? Or, how about carrying out assassinations of his political enemies? Can he do that, as long as he simply utters the phrase “national security” or “9/11” over and over, even if he never proves that what he’s doing has anything to do with actual national security?
That is the question that cuts to the heart of whether the “rule of law” actually means anything anymore. As Senator Chuck Hagel (R-NE) said recently, “No president is above the law. We are a nation of laws and no president, majority leader, or chief justice of the Supreme Court can unilaterally or arbitrarily avoid a law or dismiss a law.”
Or can they? Americans are waiting for an answer.