by Ray McGovern
Who can forget the chutzpah of President George W. Bush as he bragged to Bob Woodward, "I'm commander in chief.... That's the interesting thing about being president...I don't feel like I owe anybody an explanation."
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Wrong, Mr. President. You and Vice President Cheney seem to have missed "Constitution 101." And you seem to have laughed off admonitions against hiring lawyers eager to give an obsequious nihil obstat to whatever you want to do. You have allowed the likes of David Addington, Alberto Gonzales, John Yoo to do what Sen. Chuck Hagel (R, Nebraska) has accused you and your advisers of doing regarding Iraq -- "making it up as they go along." It's enough to make one conclude that Shakespeare may have been right about lawyers.
Mr. President, you just can't keep making things up -- things like "unitary executive," and "unlawful combatant," and "military tribunals" and "enhanced interrogation techniques." You cannot make-believe them into law. These faux-legal constructs are now coming home to roost.
Contrary to what you have been quoted as saying, the U.S. Constitution is not just another piece of paper. Indeed, it seems to be getting a new lease on life these days. Last week you and your lawyers ran into a tough judge who takes the Constitution very seriously indeed and shows no sign of bending with the prevailing winds.
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Thursday's ruling by Judge Anna Diggs Taylor of the U.S. District Court in Detroit against warrantless eavesdropping did not beat around the bush, so to speak. Her strong words would, I imagine, have brought broad smiles to the faces of those who crafted the Constitution -- despite the irony that, in that sad time of racial exclusion, they would not have thought to include Judge Taylor in "We, the people."
The power and simplicity of her words brought immediately to mind another distinguished African American woman and jurist who rose to the occasion a generation ago during the impeachment proceedings against President Richard Nixon. A member of the House Judiciary Committee that approved articles of impeachment against a president she described as "swollen with power and grown tyrannical," Rep. Barbara Jordan (D, Texas) addressed her colleagues:
"My faith in the Constitution is whole; it is complete; it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.... The Constitution charges the president with the task of taking care that the laws be faithfully executed."
Judge Anna Diggs Taylor's unminced words on Thursday resonated with those sentiments -- and some righteous anger. She ruled that Bush's eavesdropping program is "obviously in violation of the Fourth Amendment" as well as the 1978 Foreign Intelligence Surveillance Act (FISA), which expressly forbids eavesdropping on Americans without a court warrant. She gave short shrift to the White House argument that the president's powers as commander in chief of the armed services in time of war enable him to disregard this and other laws. The administration's painfully stretched contention that the post 9/11 congressional authorization of force somehow gave the president the authority to disregard FISA was also summarily rejected.
Eight months have gone by since James Risen's exposé of the eavesdropping program appeared in the New York Times, so we would do well to call up some key facts -- especially since demagoguery and posturing is again in full swing. Rep. Peter Hoekstra (R, Michigan) immediately castigated Judge Taylor for "taking it upon herself to disarm America during a time of war." Hoekstra is chair of the House intelligence committee charged with overseeing (overlooking?) NSA and other programs. Also on Thursday, Speaker Dennis Hastert (R, Illinois) spiced things up, claiming that the eavesdropping program "saved the day by foiling the London terror plot." (If that is true -- admittedly a big IF, given the administration's credibility record on such matters -- the Justice Department should go after Hastert immediately for gross violation of important laws against divulging sources and methods.)
On Friday, President Bush reverted to the administration's scripted response: "If al-Qaeda is calling in to the United States, we want to know why they're calling." Bush asserted that opponents of the warrantless eavesdropping program "do not understand the nature of the world in which we live." Striking the podium for emphasis, Bush added, "I strongly disagree with that decision."
Spare the podium, Mr. President. Like the Constitution, it will stand up to your blows.
Lost in the underbrush is the reality that the architecture of FISA was shaped not only to protect the privacy of Americans but also to give the White House considerable latitude in pursuing time-urgent opportunities. For example, the executive branch is permitted to eavesdrop on conversations for three days without having to seek a warrant from the FISA court. And, when sought, warrants have been virtually automatic.
Mr. FISA on FISA
When questioned about the legality of President Bush's eavesdropping program on May 8, widely respected Admiral Bobby Ray Inman, who was director of the National Security Agency (NSA) when the FISA law was drafted (and later deputy director of the CIA), said:
"There clearly was a line in the FISA statutes which says you couldn't do this...There was even an extra sentence put in the bill that said, ‘You can't do anything that is not authorized by this bill.'"
Inman criticized the decision not to do the appropriate thing and go to Congress to revise the statute, if the administration truly felt that FISA needed amending to deal with issues not anticipated in 1978.
But They DID Go to Congress, Sort of...
What has escaped notice is that the White House did take soundings in Congress. This has been known since Dec. 19, 2005 when Attorney General Alberto Gonzales was asked at a press conference why the administration did not seek new legislation to enable it to conduct such a program legally-why the "backdoor approach?" In an unguarded moment Gonzales tied himself in knots trying to have it both ways:
"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past-certain members of Congress-as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."
Strange. If you believe you already have congressional authorization, why sound out members of Congress on the prospects for obtaining authorization? Besides, deliberations on this issue took place in the immediate post-9/11 atmosphere in which the draconian Patriot Act sailed through Congress. Surely the way would have been clear for any reasonable proposal to amend the already flexible FISA. As James Risen has quipped, "In October 2001 you could have set up guillotines on the public streets of America."
It is hard to escape the conclusion that the eavesdropping program (since dubbed the "Terrorist Surveillance Program") was of such scope and intrusiveness into our constitutional rights that it stood no chance of being approved even in the immediate post-9/11 atmosphere.
So Who Cares?
Administration leaders keep telling us that the "Terrorist Surveillance Program" is necessary to intercept communications between al-Qaeda terrorists and Americans who might be in cahoots with them. Details about the program are denied even to overseers in Congress-including see-no-evil, neutered watchdog Hoekstra. And as Hoekstra and his colleagues stoke citizen fears with charges that opponents are trying to "disarm America," most Americans have been taken in. How many of your friends have told you, "I don't care if my telephone calls are monitored; I'm not talking to al-Qaeda." Do you care if the administration is monitoring the phone calls of Sen. Judiciary Committee Chair Arlen Specter? I keep asking myself why it is that, after initially expressing grave doubts about the legality of the eavesdropping program, Specter now has not only caved in, but has actually drafted legislation that would give the president virtually every authority he seeks.
Lessons of History
The widespread complacency in the United States calls to mind that of the obedient German citizens who acquiesced during an analogous time during the thirties. On February 27, 1933, as Adolf Hitler reached for unchallenged power, the Reichstag building, Germany's parliament, was destroyed in a fire. Hitler took full advantage of this 9/11-like calamity to whip up fear of "terrorists" -- in this case, Communist terrorists-and to impose legislation curtailing the rights of German citizens. The vast majority of German citizens acquiesced.
In Defying Hitler: A Memoir, Sebastian Haffner provides an eyewitness account of those days in Berlin:
"With sheepish submissiveness the German people accepted that, as a result of the fire, each one of them lost what little personal freedom and dignity was guaranteed by the constitution; as though it followed as a necessary consequence.... more than one [of my colleagues] hinted that they had doubts about the official version; but none of them saw anything out of the ordinary in the fact that, from now on, one's telephone would be tapped, one's letters opened, and one's desk might be broken into." (pp 121-122)
Déjà vu? At 73, Judge Anna Diggs Taylor is old enough to remember. And she is certainly old enough to have lived through the indignities suffered by Dr. Martin Luther King, Jr. and so many others at the hands of the wire-tapping-happy head of the FBI, J. Edgar Hoover-who was an inadvertent catalyst for the FISA legislation.
In other words, Judge Taylor has a firm grasp of the burgeoning danger to our liberties in these times and the need for scrupulous adherence to the rule of law-a grasp akin to that of the framers of the Constitution. This is a good thing. One can only hope and pray that her colleagues on the bench will display equal integrity and steadfastness.
A BUZZFLASH GUEST CONTRIBUTION
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He was a CIA analyst for 27 years and is co-founder of Veteran Intelligence Professionals for Sanity (VIPS).
An earlier version of this article appeared on Truthout.com.