[Mb-civic] Why Bush needs a new lawyer - Abner Mikva - Boston Globe
Op-Ed
William Swiggard
swiggard at comcast.net
Mon Jan 30 04:04:09 PST 2006
Why Bush needs a new lawyer
By Abner J. Mikva | January 30, 2006 | The Boston Globe
OUR COUNTRY has always struggled to find the correct balance between
liberty and security. What can the government do legitimately and
constitutionally to protect us from dangers while preserving our
freedoms? That tension is greatest in times of crisis, whether during
hot wars, cold wars, or terrorist attacks.
President Bush now argues that in the post-9/11 world there is no such
tension. A president need not obey some laws because the president's
''inherent" powers trump the Congress. The Foreign Intelligence
Surveillance Act and the McCain Amendment to ban torture are only
advisory because Congress cannot encroach on a president's inherent
constitutional authority in matters of national security.
This has never been the law. A president who defies acts of Congress for
professed reasons of national security is ''breaking the law repeatedly
and persistently," as former Vice President Al Gore recently charged.
President Bush now campaigns that Congress cannot impede his inherent
powers to protect Americans. Bush asserts an unrestricted right to
conduct warrantless domestic spying, even though the surveillance act
forbids this. Likewise, the administration brazenly asserts that the
president possesses the authority to mistreat detainees, even after
signing a law banning torture.
As criticism of this scofflaw behavior has mounted, Bush's lawyers have
come up with fatuous defenses. First they argue Congress authorized the
president's use of the National Security Agency for domestic spying
through the 9/11 Resolution, which was passed after the terrorist
attacks on New York and Washington. Then the president argues that he
wasn't defying Congress because he told a few of them what he was doing.
The administration needs some new lawyers. The claim that Congress
authorized spying on Americans when it voted for the use of force after
9/11 is preposterous. Constitutional scholars from both the left and
right agree that it cannot remotely be so interpreted.
In the case of the Foreign Intelligence Surveillance Act, Congress
carefully balanced the liberties protected in the Bill of Rights with
the need for surveillance of foreign enemies. To argue that Congress
cannot place any limits on the president's ability to conduct a war on
terror, as the Bush Justice Department argued in its infamous ''torture
memorandum," is absurd. It is especially dangerous when the president
ignores a statute that deals with the core liberties of US citizens.
The Bush administration's effort to defend its actions by claiming that
the Clinton administration engaged in similar abuses is patently false.
In 1993 President Clinton asserted inherent power to justify a
warrantless physical search because the surveillance act was silent on
the issue. At that time, the act required warrants for electronic
surveillance for intelligence purposes, but did not cover physical
searches. As a result of the Ames case, the law was changed to cover
physical searches, which President Clinton signed into law.
The courts have traditionally been reluctant to intervene when the
president's constitutional powers and Congress directly collide. Supreme
Court Justice Robert H. Jackson's famous opinion in the Steel Seizure
case remains the governing framework. In that case, in reasoning that
President Truman exceeded his powers by seizing steel mills as part of
his Korean War effort, Jackson wrote that although the president has
some inherent powers, those powers are at their ''lowest ebb" when the
Constitution also vests Congress with authority. For example, the
Constitution gives Congress the power to prescribe rules for the
regulation of the armed and naval forces, and so if a statute prohibits
the military from engaging in torture or cruel, inhuman, and degrading
treatment, the president must follow that dictate. (Constitutionally,
the president must ''faithfully execute the laws.")
When Congress has no constitutional authority, statutes limiting the
president's inherent authority may have less or no force. If Congress
enacted a law requiring the president to conduct military operations in
a particular manner, a president might correctly disregard that law.
But when the civil liberties of Americans are at stake, Congress
undoubtedly possesses constitutional power equal to the president's
authority. As Justice Sandra Day O'Connor wrote in one case, ''Whatever
power the United States Constitution envisions for the Executive in its
exchanges with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake." America's strength lies in its
belief in the rule of law. Congress can change the surveillance act if
new circumstances justify a legislative solution. But playing on the
fears of Americans to justify unconstitutional behavior is to sacrifice
the very freedoms we are fighting to preserve. President Bush should not
allow Osama bin Laden to gain that victory. We can defeat terrorism with
our Constitution intact.
Abner J. Mikva was a Democratic representative from Illinois who later
served as chief judge of the US Court of Appeals for the District of
Columbia and as White House counsel.
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/30/why_bush_needs_a_new_lawyer/
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