In the days after Sept. 11, everyone agreed that we needed to recalibrate the delicate balance that had been struck between security and civil liberties. It now appears, however, that while the American people thought they were bargaining in good faith with their president, he was nodding and smiling and taking what he wanted in secret.
At the start of this "war," Congress thought it was authorizing the use of force in Afghanistan. But now we've learned that in so doing it also gave the president limitless powers to break the law. Congress thought it was passing the Patriot Act. But it was actually giving the government broad and seemingly open-ended new surveillance authority. We believed the executive branch to be bound by the rule of law—by the Constitution and the Geneva Conventions and the ancient writ of habeas corpus. But the president was redefining torture, disregarding international conventions, and granting himself broad discretion to name and imprison enemy combatants for years on end.
Americans believed they were bargaining in good faith with their government over the original deal struck in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. FISA was supposed to represent a compromise between security and civil liberties, by making it illegal to spy on Americans without judicial oversight but setting the bar for such oversight quite low. Even as amended by the Patriot Act—which further lowered the standards for a FISA warrant—the statute still purported to adhere to the fundamental bargain: Americans would not be spied upon by their government without basic constitutional checks in place.
The Bush administration is forever quick to point out the flaws in all these bargains we have struck. The Patriot Act didn't go far enough, so the administration pushed for Patriot II. The Geneva Conventions afforded prisoners too many rights, so those rights were suspended. The statutory definition of torture precluded intelligence-gathering, so new definitions were invented. FISA was too cumbersome in a crisis, so it doesn't bind the president. Perhaps it's naive to think we had these negotiations in public because this delicate allocation of rights and powers is fundamental to a democracy. It's not shocking that the Bush administration sought to expand its powers. It's shocking that the president unfailingly refuses to ask.
There are two explanations for the Bush administration's failure to stay within the boundaries of the legal structures for which it's bargained: One is that the administration believes it is fighting this war on its own; the courts, the Congress, and the American people are all standing in its way. The other is that the administration is convinced that none of our statutes or policies or systems will actually work in a pinch. Our laws aren't just broken. They are unfixable.
The former argument was offered this week by Attorney General Alberto Gonzales, who defended the secret spy program with the astonishing claim that Congress wasn't told because Congress would not have passed it. Gonzales said the administration considered asking Congress to authorize the program but was "advised that that was not something we could likely get." (This, even though Congress just about sold off the farm after 9/11, granting the president every extra power he requested.) That just can't be right. And it isn't. As Chief Justice John Roberts explained so eloquently at his recent confirmation hearings, the Youngstown case, decided by the Supreme Court in 1952, stipulated that "where the president is acting contrary to congressional authority … the president's authority is at its lowest ebb." The courts have expressly said that if Congress wouldn't sign off on the deal, executive-branch authority is lesser, not greater.
The other argument for consistently reneging on bargains about civil liberties was put forth by President Bush this week when he insisted that we are facing a "new threat requiring us to think and act differently." The existing laws that govern his conduct are helping the terrorists and hurting us. Bush's admission—that he authorized a program four years ago that is secretly monitored and reauthorized by himself—is astonishing. His admission that he intends to continue to do so masks a darker truth: He believes that FISA can't be fixed. Like the judicial system for Americans or the courts-martial system for prisoners of war, FISA can't be modified to protect us; it must be overridden by fiat and in secret.
Over the past several days, Bush's weary supporters have begun to publish defenses of his conduct. They argue, in effect, that the president has the authority to conduct warrantless searches for foreign intelligence because no courts have ever held that his office does not have that inherent authority. This assumes there is a war on. But that isn't the most galling argument. The most reckless argument is that FISA is either outdated—as Condoleezza Rice has suggested—or too slow, or demands too much in the way of proof. Never mind that experts say warrants can be verbally authorized in a matter of hours and proved retroactively and that the FISA court has, as of today, approved 5,200 applications and rejected four. To Bush it is broken, and rather than fix it he'll just make up his own law.
The system sucks, Bush's champions argue. Possibly. The bureaucracy is crippling. Indeed. And so what is the solution? Byron York argues—mind-bendingly—that with his order allowing the National Security Agency to conduct warrantless searches, Bush "was trying to shake the bureaucracy into action." Somehow, the bureaucracy would be galvanized into coordinating better investigations by a secret spy program operating without its knowledge.
So, which is it? Does the Bush administration refuse to honor its legislative and constitutional bargains with Congress, the courts, and the American people because it believes we are all just getting in its way? Or does it sidestep us because it believes that all these trappings of a democracy—the courts and the laws and public accountability are broken and unfixable? The first possibility is grandiose and depressing. The latter is absolutely breathtaking.
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