Lincoln's example

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The nation needed Abraham Lincoln after September 11, but it got George W. Bush.

The jihadist abominations arguably confronted President George W. Bush with the dilemma of choosing between the Foreign Intelligence Surveillance Act (FISA) and the safety of the American people. He should have followed Abraham Lincoln's example during the Civil War in consulting Congress over suspending the writ of habeas corpus and promptly seeking a ratifying statute. Instead, Mr. Bush concealed his evasion of FISA, asserted monarchical powers, and scorned congressional oversight. If Lincoln's statesmanship had been emulated, Mr. Bush could have avoided his current gladiatorial clashes with Congress over checks and balances in fighting international terrorism.

September 11, 2001 raised fears of hundreds of terrorist sleeper cells burrowed throughout the nation. The need for instant foreign intelligence to safeguard against a cascade of renewed terrorist attacks was urgent. President Bush might have thought it impossible to comply with FISA consistent national security. The statute authorizes the National Security Agency to spy on American citizens on American without judicial warrants for 15 days after war commences. But the attorney general must first be presented with evidence of probable cause to believe each target is implicated in international terrorism or is otherwise acting as a foreign agent. If Mr. Bush believed FISA was too sluggish for the crisis, he should have violated the law; brought the matter immediately to the attention of Congress; and, sought retroactive congressional approval of what he had done. Lincoln set the standard for dealing with wartime emergencies after the opening shots of the Civil War.

Congress was not in session. The Union itself was threatened. Lincoln made calls for volunteers to serve three years, unless sooner discharged, and large additions to the regular army and navy. He further authorized the suspension of the writ of habeas corpus, i.e., the arrest and detention without judicial examination of persons deemed dangerous to the public safety. Both presidential measures were constitutionally dubious.

Accordingly, on July 4, 1861, Lincoln convened Congress on an "extraordinary" occasion under Article II, section 3, to review his actions. As regards the volunteers and regular armed forces, the president explained: "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress."

With respect to the suspension of habeas corpus without congressional authority, Lincoln elaborated: "The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by use of the means necessary to their execution some single law... should to a very limited extent be violated?... But the Constitution itself is silent as to which [Congress or the Executive] is to exercise the [suspending] power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion. ... whether there shall be any legislation upon this subject, and if any, what, is submitted entirely to the better judgment of Congress." Congress retroactively ratified Lincoln's suspension of habeas corpus in the Habeas Corpus Act of 1863.

Mr. Bush flouted rather than followed Lincoln's Civil War instruction in the aftermath of September 11. He secretly instructed the NSA to target American citizens on American soil for electronic surveillance on his say-so alone in violation of FISA. In contrast to Lincoln, Mr. Bush did not bring his professed emergency measure to the attention of Congress. Nor did he seek legislation authorizing the NSA's warrantless domestic surveillance, although Congress was present, willing and able to enact anything Mr. Bush proposed as indicated by the overwhelming approval of the Patriot Act. (Alerting Congress to the NSA's warrantless domestic spying would not have crippled its effectiveness. The program continued unchanged even after it was revealed by the New York Times last December).

Mr. Bush concealed the NSA's illegal spying from Congress to evade legal and political accountability. When a leak to the New York Times broke the secrecy, Mr. Bush preposterously claimed inherent constitutional authority to ignore FISA or any other statute constraining his ability to gather foreign intelligence, for example, laws prohibiting mail openings, breaking and entering homes, or torture. The White House tacitly conceded it was operating other secret spying programs that would never be shared with Congress.

Mr. Bush established military tribunals to try alleged war criminals without seeking congressional authorization. They were later held unconstitutional by the Supreme Court in Hamdan v. Rumsfeld (2006). Mr. Bush similarly cold-shouldered Congress in creating Combatant Status Review Tribunals to determine whether Guantanamo Bay detainees are illegal combatants. Their constitutionality remains questionable.

Lincoln unreluctantly sought to act within the rule of law and endorsed checks and balances. Mr. Bush has turned Lincoln's example on its head, thereby endangering the constitutional order. When the nation needed longheaded statesmanship, Mr. Bush sallied forth with small-minded partisanship.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.