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Skyline - Houston, Texas

Thursday, December 29, 2005

Barron's Analysis - President wrong

A friend emailed me this article from Barron's, a normally conservative financial publication.

The online version of the magazine is subscription only ($99/year) so the link probably won't help much.


Unwarranted Executive Power
The pursuit of terrorism does not authorize the president to make up new laws

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times
and learned that the Bush administration has been fighting terrorism
by intercepting communications in America without warrants. It was
worrisome on its face, but in justifying their actions, officials have
made a bad situation much worse: Administration lawyers and the
president himself have tortured the Constitution and extracted a
suspension of the separation of powers.

It was not a shock to learn that shortly after the Sept. 11 attacks,
President Bush authorized the National Security Agency to conduct
intercepts of international phone calls to and from the United States.
The 1978 Foreign Intelligence Surveillance Act permits the government
to gather the foreign communications of people in the U.S. -- without
a warrant if quick action is important. But the law requires that,
within 72 hours, investigators must go to a special secret court for a
retroactive warrant.

The USA Patriot Act permits some exceptions to its general rules about
warrants for wiretaps and searches, including a 15-day exception for
searches in time of war. And there may be a controlling legal
authority in the Sept. 14, 2001, congressional resolution that
authorized the president to go after terrorists and use all necessary
and appropriate force. It was not a declaration of war in a
constitutional sense, but it may have been close enough for government

Certainly, there was an emergency need after the Sept. 11 attacks to
sweep up as much information as possible about the chances of another
terrorist attack. But a 72-hour emergency or a 15-day emergency
doesn't last four years.

In that time, Congress has extensively debated the rules on wiretaps
and other forms of domestic surveillance. Administration officials
have spent many hours before many committees urging lawmakers to
provide them with great latitude. Congress acted, and the president

Now the president and his lawyers are claiming that they have greater
latitude. They say that neither the USA Patriot Act nor the 1978
Foreign Intelligence Surveillance Act actually sets the real boundary.
The administration is saying the president has unlimited authority to
order wiretaps in the pursuit of foreign terrorists, and that the
Congress has no power to overrule him.

"We also believe the president has the inherent authority under the
Constitution, as commander-in-chief, to engage in this kind of
activity," said Attorney General Alberto Gonzales. The Department of
Justice made a similar assertion as far back as 2002, saying in a
legal brief: "The Constitution vests in the president inherent
authority to conduct warrantless intelligence surveillance (electronic
or otherwise) of foreign powers or their agents, and Congress cannot
by statute extinguish that Constitutional authority." Gonzales last
week declined to declassify relevant legal reviews made by the
Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president
above the Congress is an invitation to tyranny. The president has no
powers except those specified in the Constitution and those enacted by
law. President Bush is stretching the power of commander-in-chief of
the Army and Navy by indicating that he can order the military and its
agencies, such as the National Security Agency, to do whatever
furthers the defense of the country from terrorists, regardless of
whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the
federal judiciary eventually will point out what a stretch this is.
The most important presidential responsibility under Article II is
that he must "take care that the laws be faithfully executed." That
includes following the requirements of laws that limit executive
power. There's not much fidelity in an executive who debates and
lobbies Congress to shape a law to his liking and then goes beyond its

Willful disregard of a law is potentially an impeachable offense. It
is at least as impeachable as having a sexual escapade under the Oval
Office desk and lying about it later. The members of the House
Judiciary Committee who staged the impeachment of President Clinton
ought to be as outraged at this situation. They ought to investigate
it, consider it carefully and report either a bill that would change
the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to
that, would not be about wiretapping, or about a possible
Constitutional right not to be wiretapped. It would be about the power
of Congress to set wiretapping rules by law, and it is about the
obligation of the president to follow the rules in the Acts that he
and his predecessors signed into law.

Some ancillary responsibility, however, must be attached to those
members of the House and Senate who were informed, inadequately, about
the wiretapping and did nothing to regulate it.

Sen. John D. Rockefeller IV, Democrat of West Virginia, told Vice
President Dick Cheney in 2003 that he was "unable to fully evaluate,
much less endorse these activities." But the senator was so respectful
of the administration's injunction of secrecy that he wrote it out in
longhand rather than give it to someone to type. Only last week, after
the cat was out of the bag, did he do what he should have done in 2003
-- make his misgivings public and demand more information.

Published reports quote sources saying that 14 members of Congress
were notified of the wiretapping. If some had misgivings, apparently
they were scared of being called names, as the president did last week
when he said: "It was a shameful act for someone to disclose this very
important program in a time of war. The fact that we're discussing
this program is helping the enemy."

Wrong. If we don't discuss the program and the lack of authority for
it, we are meeting the enemy -- in the mirror.

Editorial Page Editor THOMAS G. DONLAN receives e-mail at

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