President Richard M. Nixon maintained that anything the White House ordered was constitutional, for example, breaking and entering offices or homes. Nixon's scorn for the law led to crimes and ultimately to resignation when it appeared the Senate would unanimously vote to convict him of impeachable offenses.
President George W. Bush should learn from the Nixon example. He should concede that his secret order to the National Security Agency to eavesdrop on American citizens present on American soil without judicial warrants in contravention of the Foreign Intelligence Surveillance Act (FISA) violated the Constitution's separation of powers. He should acknowledge that a president cannot flout federal statutes because he would have struck a different balance between civil liberties and national security. He should renounce the idea that in wartime only the executive branch rules, which means forever, since the war against international terrorism has no endpoint. And the commander in chief should request Congress to amend FISA if it is thought a different balance between liberty and security should be struck in the aftermath of September 11, 2001.
What is demanded is not a pound of flesh or self-flagellation. What is urged is an unreluctant embrace by President Bush of keystone constitutional principles to which so many have given that last full measure of devotion to secure freedom for the living and those yet to be born. On that score, the slabs of legal argument featured in Attorney General Alberto R. Gonzales' 42-page submission to Senate Majority Leader Bill Frist, Tennessee Republican, last Thursday to justify the NSA's warrantless spying on Americans are disappointing. The justifications oscillate between the risible and the chilling.
Section 111 of FISA addresses the president's electronic surveillance powers during wartime to gather foreign intelligence. It was supported both by the incumbent President Jimmy Carter and Congress as a judicious trade-off between national security and reasonable expectations of privacy in communications. Accordingly, the section authorizes eavesdropping on Americans without a customary court warrant "for a period not to exceed 15 calendar days following a declaration of war by Congress." A one-year window was initially contemplated. But Congress and the White House concluded that a shorter period would still afford the president time to ask for a legislative extension if national security concerns remained acute.
President Bush's eavesdropping order issued secretly in the aftermath of September 11 was not confined to 15 days, but has been continued for more than four years. Mr. Bush did not seek a statutory extension, although the request could have been considered in secrecy by Congress under Article I, section 5, clause 3. (The Manhattan Project during World War II was funded by Congress without compromising secrecy).
On September 18, 2001, Congress enacted the Authorization for Use of Military Force (AUMF). It succinctly provides, "[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Attorney General Gonzales' White Paper fatuously insists that the AUMF trumps the limitations of section 111 because it does not declare war. The attorney general maintains that war declarations are characteristically no more than a single sentence and cryptic on presidential war powers, whereas authorizations for the use of military force are ordinarily expansive "and are made for the specific purpose of reciting the manner in which Congress has authorized the president to act." But that contention is counterfactual.
The AUMF says absolutely nothing about the "manner" in which President Bush is to employ "necessary and appropriate" force. It is indistinguishable on that score from the declaration of war against Spain in 1898, which provided: "First. That war be, and the same is hereby declared to exist ... between the United States of America and the Kingdom of Spain. Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into actual service of the United States the militia of the several states, to such an extent as may be necessary to carry this Act into effect." Neither the declaration nor the AUMF address war tactics, for example, eavesdropping, concentration camps, breaking and entering homes, or enjoining news disclosures like the Pentagon Papers thought injurious to the war effort.
The AUMF reticence over tactics is no aberration. With regard to the current war in Iraq, for instance, Congress similarly declared without elaboration: "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -- (1) defend the national security of the United States against the continuing threat posed by Iraq, and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq."
While the suggestion that the AUMF vanquishes FISA's limits on electronic surveillance during war is laughable, the attorney general's assertion of unchecked commander in chief powers to conduct war is chilling. According to Mr. Gonzales, the president may ignore any federal statute that he believes would "impede" the war effort, for example, a law forbidding concentration camps reminiscent of World War II, a prohibition on conscription, a limitation on the size of the armed forces or the duration of military service, or a withholding of federal funds sought to extend the war in Iraq into Iran to destroy its nuclear facilities. Under that unprecedented and insidious theory, the stream of federal statutes during the Vietnam War ranging from the Fulbright Proviso in 1970 to the Eagleton Amendment of 1973 prohibiting the use of funds to support combat operations in Cambodia or Laos were all unconstitutional.
A president above separation of powers might help to defeat the terrorist enemy. But the nation's constitutional dispensation and bulwarks against tyranny would be destroyed. As Secretary of State Condoleezza Rice might put it, to bow to President Bush's usurpations would be a reprise of Napoleon's 18th of Brumaire in the French Revolution.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.