The President’s Unauthorized, Secret Spying: A Constitutional Crisis

In 1991, the Russian Parliament passed a statute governing the so-called “Special Services”---Russia’s spooks. That was the first time in Russia’s thousand-year history that anyone had written down what its spooks could and could not do. Previously, they could do whatever the Czar or General Secretary of the Communist Party wanted them to do, and what he wanted was mostly secret. Thus, until 1991, the fearsome power of Russia’s spy apparatus had been subject to leaders’ secret whim. The 1991 statute sought to bring it under transparent democratic control.

Today our President acknowledged secretly directing the National Security Agency to monitor suspicious electronic communications between points abroad and Americans or foreigners on American soil. There was and is no legislative authority for this act. Existing law and longstanding tradition prohibit the NSA (and the CIA) from operating inside the United States. The President also bypassed the Foreign Intelligence Surveillance Court, a special secret court that Congress had set up precisely for the purpose of balancing sensitive foreign intelligence questions with civil liberties. Yet the President insists he had the power to do what he did and promises he’ll do the same again.

In acting unilaterally without the other two branches of democratic government, President Bush arrogated to himself the same sort of power that Ivan the Terrible and Stalin once wielded. And he did so secretly.

To justify his unauthorized, secret acts, the President cited his duty, as Commander in Chief, to protect us from foreign threats. The Constitution does give him that responsibility, but it does not give him complete discretion in how to act. Only the Czars and Stalin had that sort of power. In our country, statutes passed by Congress limit the President’s freedom of action in all matters, including war and intelligence.

More important, it is not up to the President to determine whether his actions complied with law. That is the job of the courts or Congress. Our Constitution does not give him the right to arrogate arbitrary power to himself and then, by mumbling the incantation “national security,” bless his own actions as lawful. As even Russia has discovered, that road leads to the gulags.

Anyone who’s followed the Bush Administration knows it is not very good with details. In invading Iraq, it missed the little detail of what the Sunnis might do when deprived of their half-century hold on absolute political power. It disbanded the Iraqi Army, putting all those Sunni and Baathist commanders out of work. Then it left enormous quantities of ordnance lying unguarded in innumerable open caches for any disgruntled Iraqi---let alone terrorists---to pick up. That little detail is no doubt responsible for a large fraction of all the deaths of our soldiers killed by improvised explosive devices, not to mention innocent Iraqis killed by terrorists.

Now the President wants us to ignore the detail that his secret spying program was unauthorized by law. He argues that he averted a follow-on attack to 9/11. He insists that he kept us safe and will do “whatever it takes” to keep us safe. He claims that he acted lawfully, although his acts were deliberately and blatantly in violation of our Constitution’s checks and balances.

Our civil liberties and rights to constitutional government are hardly details. They are the result of eight centuries of Anglo-American struggle and sacrifice, beginning with the Magna Carta. They are what every soldier who has suffered or died for our nation---including those now in Iraq---has fought for. They are the essence of what makes us Americans and makes our country worth fighting for.

According to news reports, the reasons for the authorized, secret program are just as secret as the program once was. The opinions of counsel and legal memoranda justifying it are classified. So the President wants to have his unauthorized secret power while keeping the reasons for it also secret. Is that democracy?

One possible reason for all the secrecy is easily dismissed. The President wants to discourage terrorists from using electronic communications by implying that they are always subject to secret surveillance. But secret surveillance legitimately approved by a secret court would be just as much a threat to terrorists’ use of electronic media as surveillance approved secretly and unlawfully by the President. In any event, now that the word is out, it makes little practical difference whether a secret program is continued by the Executive Branch alone or with the secret cooperation and consent of the other two branches.

The need for expedition is no excuse to arrogate absolute power to the Executive. Existing rules, including the Patriot Act, provide for emergency action with review and consultation to follow. Congress can enact new rules for expedient action as needed. It can authorize or ratify the President’s prior actions and expand his emergency authority. There is even precedent for secret statutes, such as budgetary allotments for clandestine activities.

No one---certainly not Congress or the courts---wants to deny the President the authority he needs to avert terrorism on our soil. Congress and the courts can bend over backwards to give the Executive all the secrecy and flexibility it needs to act decisively to avert terror.

But there is no excuse for the Executive arrogating all power to itself, acting alone and keeping the other two branches in the dark. To imply that the other branches can’t keep secrets is both insulting and untrue. Secrecy strictures on the intelligence subcommittees of both Houses of Congress have worked well throughout the Iraq War. As for the courts, lawyers and judges are trained to keep secrets, and they do so every day. Just try to pry a tidbit out of Patrick Fitzgerald, for example.

Therefore the most important aspect of this controversy is what the President said today. He revealed that he has reauthorized the secret spying program more than thirty times and will continue to do so whenever he deems it necessary. He thus threw down the gauntlet, challenging Congress and the courts to restore the checks and balances that our Constitution requires, and all but declaring a constitutional crisis. If Congress and the courts don’t act, they will forfeit our Constitution and our liberties.

The Constitution provides only one sure method of resolving such a crisis: the impeachment process. Several years ago, we hounded a President for three years for a sexual indiscretion and allegedly lying about it. Isn’t subversion of constitutional government by secretly spying on Americans without any checks or balances infinitely more worthy of that sort of attention?

Richard Nixon was not America’s worst President merely because he swore like a truck driver in private and recorded his racist and anti-Semitic profanity for the embarrassment of posterity. He resigned under legitimate threat of impeachment because he misused the power of the Executive Branch. He used that power to persecute people on his “enemies list” and to cover up crimes of his minions in pursuit of partisan political objectives. His acts threatened to undermine constitutional government, and he was rightly driven from office for them.

President Bush’s challenge presents a similar threat. Unlike Nixon’s, his unlawful acts were not for partisan purposes; they sought an objective---protection from terrorism---with which the vast majority of Americans agrees. But in their breadth of scope and his assertion of their legitimacy, the President’s activities are just as threatening to constitutional government.

Nixon was smart enough to try to hide his “enemies” list and his use of criminal underlings to raid the Democrats’ political headquarters for partisan purposes. President Bush has the audacity to claim that he has the power to go it alone, without consulting the two co-equal branches of government, for reasons he won’t discuss or allow the people see. He apparently wants to arrogate to the American Presidency powers once held only by czars, kings and commissars, which even modern Russia has tried to abjure.

It is a bold and open arrogation of absolute power, and it deserves a bold and immediate congressional response. The House of Representatives should open impeachment proceedings and begin an investigation as soon as possible.

Mere talk---even a unanimous joint resolution---is apparently not enough to cure this Administration’s unfortunate habit of shooting first and explaining later. With its track record of blunders in Iraq, it has hardly earned the blind trust in its competence that it seeks, even under the most exigent circumstances. And fortunately we are nowhere near the most exigent circumstances. We should resolve the President’s claim of absolute power in these matters decisively while we still have time to keep both our security and our Republic.

The Indispensable Man

As the Western world waits breathlessly for results of elections in Iraq, it is high time to recognize the man who made it all possible. His name appears in few news reports and didn’t appear on any ballot. His role and his contributions are unknown to many foreigners, especially Americans. Yet democracy’s precarious hold in Iraq---and most of all, its future---owe more to this man than to any other living person.

No, he is not a Bush. Nor is he a Khalilzad, Allawi, Chalabi or Jaafari. He is no politician or military leader. He is one of those strange turbaned, bearded folk who often elude Americans’ understanding. He is an Ayatollah of Islam.

More than that, he is a Grand Ayatollah of the Shiite branch of Islam, one of only five now living. To those who don’t know him, that puts him in the same class as the Shiite leaders who presided over the taking of our hostages in Iran. Yet he is a far, far different sort of Ayatollah.

This indispensable man is Grand Ayatollah Ali Sistani. He made elections and peace possible by restraining popular hatred and violence toward the American invaders and Sunni oppressors alike. By dint of his wisdom and religious authority alone, he curbed Muqtada Al Sadr’s Mahdi Militia. He wisely counseled restraint in the face of Baathist violence, and he preached tolerance of and compromise with nonviolent Sunnis in the interest of peace and harmony. With his branch of “quietist” Islam, he also counseled separation of mosque and state, which is why you won’t find his name on any ballot.

If the Grand Ayatollah had done only that much, he would have earned an honorable place in the bloody and vengeful history of Iraq and the Mideast. But he’s done much, much more. He may well be Islam’s quiet Martin Luther.

To understand this point, consider the schism between Shia and Sunni that has shattered the Islamic Arabic world and occasioned so much bloodshed. Shia believe that the true line of caliphate succession flowed from Muhammad through his daughter Fatima, her husband Imam Ali, and their progeny Hassan and Hussein. Sunni believe it flowed through Caliphs who were not direct descendants of Muhammad: Uthman, the third caliph, who was murdered while at prayer, and his cousin Ummayad, who later took the caliphate by a show of piety and force of arms. The schism is thus a millennial dynastic feud that is only partly religious and owes much to a struggle for political power.

Aside from the view that Muhammad’s direct descendents had a better claim to divine succession, religious differences did not create the schism. Sure, Shia and Sunni celebrate different holidays, observe different rituals, and revere different martyrs and holy personages. There are even different interpretations of the Koran. But the first thing that comes to mind, and the consistent thread throughout history, is the dynastic struggle for secular-religious power.

Now contrast our great schism in the West, the one between Catholics and Protestants. Ask any knowledgeable Westerner to explain it, and he will begin with ideas, not dynasties (although dynasties later turned on the split). The split derives, he will say, from a then-heretical notion: that each person’s relationship with God is personal and individual. Protestants, he will say, see religion as personal, while Catholics see it as institutional. Protestants’ view took their faith outside the scope of the Catholic Church’s dogmatic power.

We remember Martin Luther as the source of this idea. But unlike Fatima, Ali, Uthman and Ummayad, his name is secondary. The idea is all.

From that once heretical idea sprang the social organization that allows both modern democracy and modern science to flourish. If each individual relates directly to God and is an image of God, then each individual’s interests and opinions deserve tolerance, if not respect. Democracy is only an intellectual baby step away, although that baby step took hundreds of years and countless wars.

Modern science, too, hangs from Luther’s banner. Once the Catholic Church banned Galileo’s “heresy” that the Earth revolves around the Sun and forbade his astronomical research. Once it prohibited dissection of cadavers and thereby the advance of medical science. But if each person’s understanding of Nature and God’s world depends on her own personal relationship with God, then the old, generalized taboos and the Pope have less to say. Experiments can proceed, and new ideas can flourish, so that each may understand God’s work in her own way.

The two key principles of modern American democracy flowed from the same source. If everyone’s relationship with God is personal---and presumably different---then it makes little sense to decree a state religion and force everyone to profess the same belief. If everyone can believe differently, then all should be free to discuss and debate their differing beliefs. And so we have separation of church from state and freedom of speech. Our First Amendment, embodying both principles, is a direct descendent of Luther’s manifesto tacked on the church door.

By and large, Islam has never accepted either principle, at least not decisively. It’s still a quintessentially authoritarian religion, although authority may be local. The Imam’s or Ayatollah’s fatwa has the authority of God, and all must obey. A writer like Salman Rushdie can be condemned to death merely for saying the wrong thing.

Enter Grand Ayatollah Sistani. Quietly and without fuss, he has independently discovered one of the two great principles that make modern, pluralistic societies possible: separation of mosque and state. A modest and reclusive man, he does not proselytize or enjoin this principle on others. But he teaches it by example. Despite importunities from every direction, he has refused to take part in politics directly, although he has exerted considerable influence merely by stating his views. He seems to believe it improper for religious authorities to meddle directly in politics. No doubt his reason is the same as that underlying our First Amendment: mixing religion with politics inevitably corrupts both.

Whether the Ayatollah recognizes freedom of speech is less certain. He seems far less eager than most Islamic clerics to spoon-feed his adherents with dogma. And his first principle---separation of mosque from state---logically leads to the second. If politics are divorced from religion, then citizens must be free to practice politics without religious restraint. Practicing politics of course requires at least some degree of freedom to speak.

Like Luther’s ideas, Ayatollah Sistani’s may allow democratic, prosperous, and pluralistic societies to flourish. Ultimately, his ideas may be the key to turning Islamic hearts and minds toward democracy, science, and peace.

So what can we Westerners do to insure that Ayatollah Sistani’s ideas get the attention they deserve? That is a difficult and delicate question. The Ayatollah does not often meet with Westerners. Any involvement with us might taint him and destroy his influence in the Islamic world. But surely Western Muslims can help by shining a spotlight on his modern and potentially revolutionary ideas. They can help discover and publish his writings and those of his disciples and translate them into every language and dialect.

One other thing. Grand Ayatollah Sistani must be well protected. He must live to a ripe old age, thinking and writing all the while. If he is martyred, Shia may remember only his image, personality and martyrdom, but not his ideas. His name then may serve as a banner for legions, not an invitation to rethink the relationship between Man and God and make life better on this Earth.

That must not happen. For in the current ideological struggle for hearts and minds, Grand Ayatollah Sistani is truly an indispensable man.