- The Washington Times - Monday, December 26, 2005

Mark Twain, prophet that he was, once decried a woeful decay in the fine art of lying. Judging by the fibs of recent presidents, the decay continues.

One of the first rules of skilled fibbing is to avoid leaving evidence that might expose your deception. President Bush has left evidence on the White House Web site. There we can see Mr. Bush promoting the Patriot Act at an April 2004 appearance in Buffalo and assuring us his administration does not wiretap Americans without court approval.

“Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order,” he says. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think ‘Patriot Act,’ constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

Knowing what we know now, that sounds like the biggest presidential whopper since Bill Clinton assured us he did not have “sexual relations with that woman.”

Two years before Buffalo, Mr. Bush authorized the National Security Agency to turn its mighty electronic ears on thousands of phone calls and e-mails between the United States and abroad without bothering to get a warrant. He does not deny violating the now-famous Foreign Intelligence Surveillance Act (FISA) of 1978. Instead, he argued in a news conference following the disclosures by the New York Times, that he does not have to obey the FISA.

He argues, echoing other presidents, that the special circumstances of the “war on terror” authorize him to take any steps he needs to keep Americans safe. But, one wonders, if he can do whatever he wants, why do we need a Patriot Act?

Mr. Bush was too busy complaining about the “shameful” leak to the Times to answer that question at his media faceoff. “The fact that we’re discussing this program is helping the enemy,” he fumed. Ah, when discussing a well-known security program is “helping the enemy,” George Orwell must be spinning in his grave.

Actually, we need to discuss his NSA “program,” among other things, and why the president didn’t take his gripes to Congress or the public before deciding on his own to circumvent the law all this time.

After all, there’s nothing new about terrorism or the great debate over how much power the executive branch should have in wartime. The extreme examples include Abraham Lincoln’s suspension of habeas corpus during the Civil War and Franklin D. Roosevelt’s internment of 120,000 Japanese-Americans for no other crime than being Japanese-Americans.

It is to avoid such grievous mistakes and more recent abuses, including warrantless eavesdropping by the FBI of Dr. Martin Luther King and Richard Nixon’s infamous “enemies list” of his political critics, that Congress came up with FISA. The secret FISA court can approve national-security-related eavesdropping warrants, provided they meet certain minimal criteria.

Despite Mr. Bush’s complaint that FISA courts slow terrorist-catching abilities, FISA allows up to 72 hours of grace, if the Justice Department needs to eavesdrop immediately. And of the thousands of warrant applications filed between 1979 and 2004, FISA judges have only rejected four, according to the Electronic Privacy Information Center, and two of those were approved later after revisions.

FISA is neither a big obstacle nor a worthless rubber stamp. The Founding Fathers understood the value of having the three branches of government involved in crucial dilemmas like this so no single branch would get too big for its wingtips. Divided power has left opportunity to be corrupted by itself.

With that in mind, it is amusing to see numerous Bush defenders turning for cover in recent days to the Clinton years. Several major conservative pundits and bloggers claim Mr. Clinton asserted exactly the same legal authority Mr. Bush claims. Actually, as the liberal-leaning media watchdog site Media Matters for America details, the Clinton administration in 1994 cited only “physical searches,” which unlike electronic surveillance was not yet covered by FISA law.

When Mr. Clinton did not like FISA law, he sought changes from Congress. Mr. Bush chose instead to defy the law and consult privately with a few members of the Senate. At least one of them, West Virginia Democrat Jay Rockefeller, says the White House ignored his serious concerns.

That brings us back to the central question Mr. Bush has yet to answer: Why did he not follow the laws Congress passed?

The great balance of liberty versus national security should not be a partisan issue. Many principled conservatives have raised this issue, as they should. For those who still are not sure, I offer this advice: Don’t grant powers to President Bush you would not want to grant to President Hillary Clinton.

Clarence Page is a nationally syndicated columnist.

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