Bush invokes national security, the war on terror and Sept. 11 as though these phrases are enabling legislation. He has offered no sound legal basis for his evasion of the Federal Intelligence Surveillance Act, his dismissal of Congress and his abrogation of the Fourth Amendment. He has not presented any convincing reason why he decided not to seek warrants from the special FISA court set up for that purpose. One of the 11 members of the secret FISA court, U.S. District Court Judge James Robertson, has quit in protest.
Bush claims to have briefed and received the approval of congressional leaders. But former Sen. Bob Graham, D-Fla., who was chairman of the Senate Intelligence Committee when Bush began his spying, said, "There was no reference made to the fact that we were going to ... begin unwarranted, illegal, and I think unconstitutional, eavesdropping on American citizens." The Republican chairman of the Senate Judiciary Committee, Arlen Specter, has announced his disquiet and is planning to hold hearings.
Bush has contradicted his previous statements that he sought warrants for all wiretaps and searches. "Now, by the way," he said on April 20, 2004, "anytime you hear the United States government talking about wiretap, it requires - a wiretap requires a court order. Nothing has changed, by the way."
Bush angrily called the leaking of his spying a "shameful act," expressing an emotion that contrasts with his obvious impassivity to the leak attributed to senior members of his administration of the identity of CIA operative Valerie Plame.
Since October 2001, Bush has personally authorized more than three-dozen warrantless wiretaps. "We've got to be able to detect and prevent. I keep saying that, but this ... requires quick action." But speed cannot be the reason for ignoring the FISA court. From its inception in 1979 through 2002, covering the period when Bush began spying, the FISA court issued 15,264 warrants. In 2003, the court rejected four applications, and the next year it rejected none. In its entire history, those four are the only rejections.
William Rehnquist, the late chief justice of the Supreme Court, appointed all the sitting FISA judges. Nearly all are inclined to presidential prerogative. Its proceedings are ex parte, that is, secret. The FISA statute stipulates that the government can wiretap first and apply for a warrant later, within 72 hours. In the light of the law and the court's record, the only reason to avoid it would be because the government felt the court that had acted almost as a rubber stamp would deny its requests.
The legal justification, such as it is, for the president's domestic surveillance policy rests in the arguments made in a Sept. 21, 2001, memorandum written by John Yoo, then deputy director of the Justice Department's Office of Legal Counsel. The commander in chief, he stated, could wiretap without court permission. "The government may be justified," Yoo wrote, "in taking measures which in less troubled conditions could be seen as infringements of individual liberties." Congress, he wrote in another memo four days later, could not put "limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the president alone to make."
Yoo is also author of memos justifying torture. On Jan. 9, 2002, he wrote a memo stating that the Geneva Conventions did not apply to detained terrorist suspects. On Aug. 1, 2002, Yoo authored another memo, signed by his superior, Jay Bybee, defining torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
These are the four known Yoo memos rationalizing expanded presidential authority. But there are at least a dozen of these documents, most of which have not yet come to light, sources close to attorneys at the Justice Department tell me. The overriding theme of them all is that the president can ignore congressional acts.
Yoo, who left the Justice Department two years ago and is now a law professor at the University of California at Berkeley, was the prolific writer. But he was not the author of the process. Nor was Gonzales, who was then White House legal counsel. Then, as now, the driving force was Vice President Cheney.
Aboard Air Force Two, on a trip back from Iraq, the prime mover granted an interview to the traveling press. "I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Cheney. He explained that he has been anxious about "infringement on the authority of the presidency" since the Nixon White House, where he served as deputy to counselor Donald Rumsfeld. "Watergate and a lot of the things around Watergate and Vietnam, both during the '70s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," he said.
Cheney's idea of the head of state invested with absolute power is a venerable one. Bush's presidency is the latest experiment to achieve it. But the idea lacks an American pedigree.
The original commentary on it appeared in a pamphlet published in 1776, "Common Sense," written by Tom Paine:
"But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING."