- The Washington Times - Monday, January 8, 2007

President Harry Truman had his “police action” in Korea. President Richard M. Nixon had his “third rate burglary” to describe Watergate. President William Jefferson Clinton had his quarrel with the meaning of the word “is.” And President Bush has his equivocations over the Constitution, most recently in a Dec. 20 presidential signing statement regarding the Postal Accountability and Enhancement Act (PAEA).

The Founding Fathers anticipated such White House duplicity. They understood men are not angels; that deductions must be made for the ordinary depravity of human nature in all three branches of government; and, that checks and balances were indispensable to an enlightened Republic.

It is thus alarming that Mr. Bush’s signature “trust me” defense for his constitutional usurpations has awakened so little opposition. He has urged, for example, that he can be trusted to exercise unchecked power to spy on U.S. citizens without occasioning the abuses that were chronic for 50 years before the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA). The 1975-76 Church committee hearings that gave birth to FISA revealed, among other things, three decades of illegal mail openings and interceptions of international telegraphs. Congress sought to forestall a reoccurrence by enacting a postal statute that sharply confined the president’s power to open mail without judicial warrants.

Mr. Bush signed a re-enactment of the statute last Dec. 20. But then the duplicity came, not in single spies but in battalions. In an accompanying signing statement, the president declared we would construe the general prohibition on opening mail without warrants “in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.”

Stripped of legalisms, the signing statement signified President Bush’s intent to disregard the law by opening mail on his say-so alone in hopes of gathering foreign intelligence. The latter’s sweeping definition includes not only terrorist-related information, but also projections or evaluations of foreign economies. Ever since the terrorist attacks of September 11, 2001, the president has argued that he commands inherent constitutional authority to collect foreign intelligence; that Congress is powerless to regulate that authority; and, that FISA and any other statute that limits the his authority to spy on Americans under a foreign intelligence banner is unconstitutional.

One federal court has repudiated the president’s argument in holding illegal President Bush’s warrantless electronic surveillance program operated by the National Security Agency. The Republican-controlled 109th Congress also balked at ratifying the president’s claim. But Mr. Bush has not receded from a theory of supreme executive power, which precludes Congress from regulating mail openings in the manner of the PAEA. Indeed, I have testified to this effect before Congress without contradiction from the Bush administration or otherwise.

Casuistry, however, earmarks President Bush. Accordingly, presidential press secretary Tony Snow insisted the signing statement simply restated existing law, as though the White House mission was to offer continuing legal education: “This is not a change in law, this is not new, it is not … a sweeping new power by the president. … It is, in fact, merely a statement of present law and present authorities granted to the president of the United States.” But if Mr. Bush intended signing statements as opportunities to restate the law, the statements would soon exceed Blackstone’s Commentaries in length and breadth. He has not done so, however, but has confined signing statements to making constitutional arguments against bills passed by Congress and signed into law by himself.

Another White House official bettered the instruction of Mr. Snow’s sophistry. The official maintained the signing statement was intended only to clarify that the PAEA did not override the president’s authority to open mail without warrants in emergencies under FISA. The U.S. Supreme Court, however, has unequivocally held Congress is presumed to know the law when it passes new legislation. A new law will not be interpreted by the courts to repeal or limit an existing law unless express language requires that construction. Since nothing in PAEA suggested the congressional intent to disturb FISA, there was no need to restate the obvious in a signing statement. Moreover, Mr. Bush has consistently asserted FISA is unconstitutional. To believe his PAEA spokespersons, however, would require believing that Mr. Bush has now tacitly conceded that Congress enjoys authority to regulate the collection of foreign intelligence, whether by regulating mail openings as with the PAEA, or by regulating physical searches, electronic surveillance, or pen registers as with FISA. But President Bush continues to argue the opposite.

In sum, the PAEA signing statement further confirms that trusting the president is no substitute for the Constitution’s checks and balances for detecting and deterring executive branch lawlessness or abuses.

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

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