- The Washington Times - Monday, April 3, 2006

In “The Education of Henry Adams,” Henry Brooks Adams surveyed the White House across Lafayette Park and observed: “The progress of Evolution from President Washington to President Grant was alone evidence enough to upset Darwin.” A modern day successor would make a corresponding observation after contemplating the Founding Fathers and reflecting on President George W. Bush.

George Washington rejected a crown. President Bush covets and asserts monarchical powers in the permanent war against international terrorism. According to the commander in chief, all of the world’s a battlefield, and battlefield tactics appropriate for Kandahar or Kabul are likewise proper on the sidewalks of America.

Chief Justice John Marshall taught that we are a government of laws, not of men. Mr. Bush insists that being president means never having to say you’re sorry for defiling the law and usurping the powers of Congress.

He has denied Congress informative disclosure of the National Security Agency’s warrantless surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act. Neither the number of Americans targeted nor the intelligence yielded from the targeting has been revealed, although both are necessary for Congress to make a responsible assessment of the legality or wisdom of the spying and to discharge its oversight obligation. President Bush is treating Congress like an extra in a Cecile B. De Mille extravaganza powerless to prohibit burglaries, mail openings or torture if he thinks the illegalities would help the collection of foreign intelligence.

President Thomas Jefferson preached that we are all Republicans, we are all Democrats, in sacralizing the Constitution and in worshipping the same democratic values. President Bush is preoccupied with wedge issues for partisan advantage. He seems to be persisting in the NSA’s warrantless surveillance program less to defeat international terrorism than to paint dubious Democrats as weak on national security.

Counterterrorism intelligence is obtained overwhelmingly by targeting al Qaeda and other aliens abroad and intercepting communications before they enter the United States. Neither the Fourth Amendment nor FISA restricts such spying. The NSA’s illegal domestic eavesdropping targeting American citizens in the United States without a FISA warrant adds but a drop to its staggering foreign intelligence pool.

The president has been unable to identify a single non-trivial contribution the illegalities have made to the safety of the American people. And it is unthinkable that if the warrantless surveillance program were yielding foreign intelligence gold — or even silver or bronze — that President Bush would have excluded domestic al Qaeda communications, which Attorney General Alberto Gonzales confirmed is the case in testimony to the Senate Judiciary Committee on February 6, 2006.

Mr. Bush’s assertion that FISA is unworkable in a post-September 11 world is another contrived excuse for illegal spying on Americans to create a wedge issue. Approximately 10 months after the NSA’s FISA evasions began, the Bush administration testified to the Senate Intelligence Committee that FISA, as amended, was working beautifully: “The reforms… have affected every single application made by the department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going ‘up’ on those suspected terrorists in the United States. [Extending the period for emergency FISA warrants from 24-72 hours] has allowed us… to ensure that the government acts swiftly to respond to terrorist threats.” President Bush has never repudiated that July 31 21-gun salute to FISA.

James Madison taught that men are not angels; and, that ambition must be made to counteract ambition through a separation of powers and checks and balances to frustrate tyranny. Accordingly, FISA placed a neutral and independent magistrate between the spy and the targeted American. Mr. Bush sermonizes that “truast me” should be the measure of our civil liberties; and, that his saintliness can be trusted to confine his NSA spying to known al Qaeda operatives, learning nothing from President Franklin D. Roosevelt’s obtuse confidence during World War II that 120,000 Japanese Americans were plotting treason because they had demonstrated unswerving loyalty.

Jefferson believed that newspapers without government would be preferable to government without newspapers. Madison understood that popular government without popular information would be a farce. And Washington welcomed clashing views to refine his judgment from the likes of Adams, Madison, Hamilton and Jefferson. In contrast, President Bush craves power without scrutiny, criminal punishment of the New York Times for disclosing the NSA’s illegal surveillance program, and an unprecedented application of the Espionage Act to reach private oral transmissions of classified information. He opposes conflicting opinions in favor of advisers as echo chambers.

Madison entrusted stewardship of the Bill of Rights to an independent judiciary because the legislature and executive are inclined to encroach on individual liberties. But President Bush in Hamdi v. Rumsfeld claimed a power to detain any citizen indefinitely as an illegal combatant on his say-so alone, reminiscent of King Louis XVI’s execrated letters de cachet which provoked the storming of the Bastille.

The United States began with a Republic. But as Benjamin Franklin reminded after the Constitution was approved, the Republic will wither unless each generation nourishes it.

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

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