|
up on the front page of the New York Times.
Nixon had a plausible national security justification for the wiretaps: To stop the leaks, which had meant that not only the public, but America's enemies, were privy to its plans. But the use of the information from the wiretaps went far beyond that justification: A few juicy tidbits were used for political purposes. Accordingly, Congress believed the wiretapping, combined with the misuse of the information it had gathered, to be an impeachable offense.
Following Nixon's resignation, Senator Frank Church chaired a committee that investigated the uses and abuses of the intelligence derived from the wiretaps. From his report on electronic surveillance, emerged the proposal to create the Foreign Intelligence Surveillance Act (FISA). The Act both set limits on electronic surveillance, and created a secret court within the Department of Justice - the FISA Court - that could, within these limits, grant law enforcement's requests to engage in electronic surveillance.
The legislative history of FISA makes it very clear that Congress sought to create laws to govern the uses of warrantless wiretaps. Thus, Bush's authorization of wiretapping without any application to the FISA Court violated the law.
Whether to Allow Such Wiretaps Was Congress's Call to Make
No one questions the ends here. No one doubts another terror attack is coming; it is only a question of when. No one questions the preeminent importance of detecting and preventing such an attack.
What is at issue here, instead, is Bush's means of achieving his ends: his decision not only to bypass Congress, but to violate the law it had already established in this area.
Congress is Republican-controlled. Polling shows that a large majority of Americans are willing to give up their civil liberties to prevent another terror attack. The USA Patriot Act passed with overwhelming support. So why didn't the President simply ask Congress for the authority he thought he needed?
The answer seems to be, quite simply, that Vice President Dick Cheney has never recovered from being President Ford's chief of staff when Congress placed checks on the presidency. And Cheney wanted to make the point that he thought it was within a president's power to ignore Congress' laws relating to the exercise of executive power. Bush has gone along with all such Cheney plans.
No president before Bush has taken as aggressive a posture - the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position.
Presidential Powers Regarding National Security: A Nixonian View
Nixon famously claimed, after resigning from office, that when the president undertook an action in the name of national security, even if he broke the law, it was not illegal.
Nixon's thinking (and he was learned in the law) relied on the precedent established by Abraham Lincoln during the Civil War. Nixon, quoting Lincoln, said in an interview, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."
David Frost, the interviewer, immediately countered by pointing out that the anti-war demonstrators upon whom Nixon focused illegal surveillance, were hardly the equivalent of the rebel South. Nixon responded, "This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president." It was a weak rejoinder, but the best he had.
Nixon took the same stance when he responded to interrogatories proffered by the Senate Select Committee on Government Operations To Study Intelligence Operations (best know as the "Church Committee," after its chairman
|
|
