The Constitution: Checking a Would-Be King

Who can forget the chutzpah of President George W. Bush as he bragged to Bob Woodward, "I'm commander in chief.... That's the interesting thing about being president ... I don't feel like I owe anybody an explanation."

Wrong, Mr. President. You and Vice President Cheney seem to have missed "Constitution 101." And you seem to have laughed off admonitions against hiring lawyers eager to give an obsequious nihil obstat to whatever you want to do. You have allowed the likes of David Addington, Alberto Gonzales, and John Yoo to do what Senator Chuck Hagel (R-Nebraska) has accused you and your advisers of doing regarding Iraq – "making it up as they go along." It's enough to make you believe Shakespeare may have been right about lawyers.

Mr. President, you can't just keep making things up – things like "unitary executive," and "unlawful combatant," and "military tribunals" and "enhanced interrogation techniques." You cannot make-believe them into law. These quasi-legal constructs are bound to come back to roost. The US Constitution is not just another piece of paper. Indeed, it seems to be getting a new lease on life these days. Now you and your lawyers have run into a tough judge who takes the Constitution very seriously indeed and shows no sign of bending with the prevailing winds.

Yesterday's ruling by Judge Anna Diggs Taylor of the US District Court in Detroit against warrantless eavesdropping did not beat around the bush, so to speak. Her strong words would, I imagine, have brought broad smiles to the faces of those who crafted the Constitution – despite the irony that, in that sad time of racial exclusion, they would not have thought to include Judge Taylor in "We, the people."

The power and simplicity of her words brought immediately to mind another distinguished African-American woman and jurist who rose to the occasion a generation ago during the impeachment proceedings against President Richard Nixon. A member of the House Judiciary Committee that approved articles of impeachment against a president she described as "swollen with power and grown tyrannical," Congressman Barbara Jordan (D-Texas) addressed her colleagues:

"My faith in the Constitution is whole; it is complete; it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.... The Constitution charges the president with the task of taking care that the laws be faithfully executed."

Yesterday, Judge Anna Diggs Taylor's unminced words resonated with those sentiments – and some righteous anger. She ruled that Bush's eavesdropping program is "obviously in violation of the Fourth Amendment" as well as the 1978 Foreign Intelligence Surveillance Act (FISA), which expressly forbids eavesdropping on Americans without a court warrant. She gave short shrift to the White House argument that the president's powers as commander in chief of the armed services in time of war enable him to disregard this and other laws. The administration's painfully stretched contention that the post-9/11 Congressional authorization of force somehow gave the president the authority to disregard FISA was also summarily rejected.

Eight months have gone by since James Risen's exposé of the eavesdropping program appeared in the New York Times, so we would do well to call up some key facts – especially since demagoguery and posturing is again in full swing. Congressman Peter Hoekstra (R-Michigan) castigated Judge Taylor yesterday for "taking it upon herself to disarm America during a time of war." (Hoekstra is chair of the House Intelligence Committee charged with overseeing (overlooking?) NSA and other programs.) Speaker Dennis Hastert (R-Illinois) spiced things up, claiming that the eavesdropping program "saved the day by foiling the London terror plot."

Lost in the underbrush is the reality that the architecture of FISA was shaped not only to protect the privacy of Americans but also to give the White House considerable latitude in pursuing urgent opportunities. For example, the executive branch is permitted to eavesdrop on conversations for three days without having to seek a warrant from the FISA court. And, when sought, warrants have been virtually automatic.

When questioned about the legality of President Bush's eavesdropping program on May 8, the widely respected Admiral Bobby Ray Inman, who was director of the National Security Agency (NSA) when the FISA law was passed (and later deputy director of the CIA), said:

"There clearly was a line in the FISA statutes which says you couldn't do this ... There was even an extra sentence put in the bill that said, 'You can't do anything that is not authorized by this bill.'"

Inman criticized the decision not to go to Congress to revise the statute, if the administration decided it needed to amend it to deal with issues not anticipated in 1978.

What seems to have escaped notice is that the White House did take soundings in Congress. This has been known since December 19, 2005, when Attorney General Alberto Gonzales was asked by the press why the administration did not seek new legislation to enable it to conduct such a program legally – Why the "backdoor approach?" In an unguarded moment, Gonzales tied himself in knots trying to have it both ways:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

Strange. If you believe you already have Congressional authorization, why sound out members of Congress on the prospects for obtaining authorization? Besides, deliberations on this issue took place in the immediate post-9/11 atmosphere in which the draconian PATRIOT Act sailed through Congress. Surely the way would have been clear for any reasonable proposal to amend the already flexible FISA. As James Risen has quipped, "In October 2001 you could have set up guillotines on the public streets of America."

It is hard to escape the conclusion that the eavesdropping program (since dubbed the "Terrorist Surveillance Program") was of such scope and intrusiveness into our Constitutional rights that it stood no chance of being approved even in the immediate post-9/11 atmosphere.

So Who Cares?

Administration leaders keep telling us that the "Terrorist Surveillance Program" is necessary to intercept communications between al-Qaeda terrorists and Americans who might be in cahoots with them. Details about the program are denied even our elected representatives in Congress. And with the fear factor periodically stoked, most Americans go along. How many of your friends have told you, "I don't care if my telephone calls are monitored; I'm not talking to al-Qaeda." This attitude is reminiscent of obedient German citizens who acquiesced during an analogous time.

On February 27, 1933, four weeks after Hitler was sworn in as Chancellor, the Reichstag building, Germany's parliament, was destroyed in a fire. Hitler took full advantage of this 9/11-like calamity to whip up fear of "terrorists" – in this case, Communist terrorists – and to impose legislation curtailing the rights of German citizens. The Germans, by and large, acquiesced.

In Defying Hitler: A Memoir, Sebastian Haffner provides an eyewitness account of those days in Berlin:

"With sheepish submissiveness the German people accepted that, as a result of the fire, each one of them lost what little personal freedom and dignity was guaranteed by the constitution; as though it followed as a necessary consequence.... more than one [of my colleagues] hinted that they had doubts about the official version; but none of them saw anything out of the ordinary in the fact that, from now on, one's telephone would be tapped, one's letters opened, and one's desk might be broken into." (pp 121-122)

Déjà vu? At 73, Judge Anna Diggs Taylor is old enough to remember. And she is certainly old enough to have lived through the indignities suffered by Dr. Martin Luther King Jr. and so many others at the hands of the wiretapping-happy head of the FBI, J. Edgar Hoover – an inadvertent catalyst for the FISA legislation. In other words, Judge Taylor clearly has a firm grasp of the burgeoning danger to our liberties in these times and the need for scrupulous adherence to the rule of law – a grasp akin to that of the framers of the Constitution. This is a good thing. One can only hope and pray that her colleagues on the bench will display equal integrity and steadfastness.