Tuesday, December 20, 2005

Constitutional Crisis

When George W. Bush ran for president in 2000, he liked to dramatically raise his right hand during public appearances. The Bush campaign was drawing a contrast between President Clinton, who did not tell the truth about an affair with Monica Lewinsky, and Bush, who would “restore honor and integrity to the White House” from the moment he raised his hand and swore on the Bible in taking the oath of office.

When Bush won the election and swore that oath, he swore to protect and defend the Constitution of the United States. There were no exceptions. He did not promise to defend the Constitution “except during time of war or national emergency.” The Constitution itself similarly provides no such exceptions. Nowhere in the Constitution will you find a provision permitting the president to suspend or otherwise deviate from the Constitution in certain circumstances.

Last Saturday, President Bush admitted that he has set aside federal statute and the Fourth Amendment to the United States Constitution by ordering secret surveillance of Americans. Although applicable law, the Foreign Intelligence Surveillance Act and the Fourth Amendment, very clearly forbid such activity, absent a warrant or court order, President Bush says he has decided such actions are necessary to defend Americans.

This is an administration that solemnly invokes the principle of strict construction of federal law and the Constitution. It accuses liberal judges of making up the law as they go along, while conservative judges like Scalia, Thomas, Roberts, and Alito simply apply the law as it is written. But the administration’s position on the secret spying seems to be that the president has special unwritten powers associated with his role as Commander in Chief that permit him to take this action. Again, nothing in the Constitution actually says this.

Apparently the president is not himself a strict constructionist. If he were, he would recognize that the Constitution does not give him authority to set aside federal law or the Constitution, even if he deems it necessary.

What we have here is not judicial activism but presidential activism. We have a president who has decided, by fiat, that the law does not apply to him when he decides otherwise. The president has defiantly admitted he broke the law and is daring Congress to do something about it. He has said he will continue to order secret surveillance without bothering to comply with the law. Never mind that FISA provides the president with very broad powers to conduct surveillance by obtaining warrants pursuant to a lenient standard and even by conducting emergency surveillance for up to 72 hours before obtaining a warrant. This is not really about security. It is about power. The president is speaking a language of raw, untrammelled power, and he is daring the other branches of government to get in his way.

This is, quite simply, a constitutional crisis. Either the Constitution means what it says, or it does not. Either the president must obey the law, or he is above the law. Either Congress or the judiciary will stop the president, or he will have the power to suspend federal law and the Constitution at his whim.

President Bush often tells us that the terrorists hate us for our freedoms. The terrorists have no power to abridge our liberties. They cannot search our bank records. They cannot wiretap our telephone conversations. They cannot search our e-mails. They cannot arrest and incarcerate us without probable cause or a trial. Only our government can do that. Our government, which says it is fighting for democracy and defending freedom, has announced that our most basic freedoms may be sacrificed in the name of security.

More than two centuries ago, Founding Father Patrick Henry famously declared “give me liberty, or give me death”. President Bush now tells us he will take our liberty from us in order to protect us from death. That is not the United States of America. If, in fighting an open-ended, vaguely defined war on terror, we set aside the basis for our constitutional democracy, then we might as well suspend the Constitution and make clear that the president may act as he chooses. It is to be fervently hoped that the system will work and the president will not be permitted to operate above the law.

4 Comments:

Blogger Mr Ornery said...

Your article reminded me of a post on a Yahoo message board that I saw one time. After Bush said that terrorists 'hate us for our freedoms' and then pushed for the 'new and improved' Patriot Act, one poster said, 'then they ought to be liking us better any day now.' I wish blogger would update their 'updated blogs' list and plug yours in where Swhicker's World has been. That guy writes like an Ann Coulter wanna be, except I think she's got more balls.

7:53 AM  
Blogger Chris Edelson said...

thanks very much--quite nice of you to say so.

9:21 AM  
Anonymous Dylan keenen said...

Theres no way, by killing many people, we will wipe out people who don't like us, but, if bush is right, and we keep sacraficing our freedoms, mabye they'll start fucking with canada!

But it's so 1984! Constant war, that is far away and over something that has now been forgotten, inorder excuse the lack of freedom and liberty.

5:19 PM  
Blogger Chris Edelson said...

Dylan--very good point on the unending war and comparison to 1984. A troubling comparison, to say the least.

7:36 PM  

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