Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

17 December 2005

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.

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