- The Washington Times - Monday, July 17, 2006

Knowledge tempered by prudence is the cornerstone of our democratic dispensation. Popular moral sentiments and sensibilities give birth to the nation’s laws and leadership. Among the first duties of the president is to teach the people to make discriminating judgments, to exalt reason over dogmas, and to be alert to government abuses or follies. Otherwise, the nation’s democratic sinews will atrophy, as highlighted by the fetish for secrecy and anti-intellectualism of the Bush administration.

President George Washington’s first State of the Union address admonished: “Knowledge is in every country the surest basis of public happiness. In one, in which the measures of government receive their impression so immediately from the sense of the community, as in ours, it is proportionately essential. To the security of a free Constitution, it contributes in various ways: By convincing those who are entrusted with the public administration that every valuable end of government is best answered by the enlightened confidence of the people: And by teaching the people themselves to know, and to value their own rights, to discern and to provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burdens proceeding from a disregard to their convenience, and those resulting from the inevitable exigencies of society, to discriminate the spirit of liberty from that of licentiousness, cherishing the first, avoiding the last, and uniting a speedy, but temperate vigilance against encroachments, with an inviolable respect to the laws.”

A president should advise the people to master and to defend their constitutional rights; to be vigilant against government overreaching; to recognize that enlightened democratic principles are matters of degree — more chiaroscuro than prime colors — and to prefer measured judgments to the categorical. What distinguishes civilization from primitiveness is a temperament that questions orthodoxies, celebrates Aristotelian moderation, and endorses the idea that the essence of being is thinking.

President Bush is not the first to have flouted Washington’s admonition, but he may be the most notorious. Rather than seek public understanding and confidence for his unprecedented measures to defeat international terrorism, Mr. Bush has labored to keep them permanently secret. Suspicions have climbed and trust has dwindled as the fears awakened by the September 11, 2001, abominations diminish.

If the president had his way, there would be no public debate over the legality or need for the National Security Agency’s warrantless electronic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act (FISA). There would be no public questioning of the Central Intelligence Agency’s secret prisons abroad, or of the Treasury Department’s subpoenaing of records of international financial transactions from an international consortium (SWIFT) with no judicial oversight.

These troublesome issues surfaced only because of leaks to major newspapers. Reminiscent of Cleopatra, Mr. Bush’s signature response has been to denounce the publications, not to welcome informed debate over the legality or wisdom of his counterterrorism strategies.

Public knowledge honoring self-government does not mean disclosing intelligence sources or methods that might be exploited by al Qaeda. As Mr. Bush’s nuclear deterrent strategy can be intelligently discussed in public without publicizing a blueprint for constructing an atomic bomb, his strategy for gathering foreign intelligence by the NSA without FISA warrants could have been disclosed years before the New York Times did so, without revealing compromising information.

Mr. Bush could have publicly explained he had directed the NSA to spy on American citizens on American soil on his say-so alone because he believed obtaining a FISA warrant was too cumbersome and that Congress was too irresponsible to be trusted with amending the law.

That explanation would not have alerted al Qaeda to sources or methods. Since the enactment of FISA in 1978, the entire world knew the United States was using electronic surveillance to gather foreign intelligence, and had taken countermeasures accordingly. Al Qaeda’s tactics of evasion never turned on whether electronic surveillance was undertaken with a warrant, as with FISA, or without a warrant, as with the NSA’s defiance of FISA. Indeed, that explains why President Bush continued the NSA’s domestic surveillance program after its public disclosure, and continues touting its effectiveness.

Mr. Bush decried the New York Times’ disclosure of the Treasury Department’s administrative subpoenas to SWIFT to track the suspected international financial transactions of al Qaeda. The disclosure came after years of administration boasts it was using muscular efforts to identify and to close al Qaeda’s financial network. Yet the White House preposterously asserted that revealing the subpoenas to SWIFT alerted the terrorist organization to something it had never suspected.

President Bush has tacitly conceded he is conducting secret intelligence collection programs that have not yet leaked but which he has no intention of sharing with the American people. The English language is sufficiently nimble, however, to enable the president to describe the nature of the programs and their legal justifications without compromising the national security.

President Bush says we should accept “trust me” as a surrogate for knowledge. But that would be the beginning of the end of our free Constitution.

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

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