[Mb-civic] IMPORTANT PIECE: Bush must honor the rule of law - Philip B. Heymann - Boston Globe Op-Ed

[William Swiggard]

  Bush must honor the rule of law

By Philip B. Heymann  |  January 12, 2006  |  The Boston Globe

BASED ON his constitutional powers and the authorization for the use of 
military force granted by congressional resolution after the events of 
Sept. 11, 2001, President Bush has declared himself free to ignore any 
law that he thinks limits his ability to fight terrorism. This is an 
extraordinary claim for any president in a country that prides itself on 
a rule of law binding government officials as well as ordinary citizens.

In signing the McCain amendment outlawing cruel, inhuman, and degrading 
treatment of detainees this month, Bush announced that he might ignore 
the amendment in order to fight terrorism, the very field that the 
amendment, adopted by overwhelming majorities in both Houses, had 
specifically addressed. The statute forbids the president only to do 
anything that, in the circumstances, ''shocks the conscience," thus 
violating the due process clause of the Fifth Amendment. This leaves him 
broad discretion and little reason to claim powers Congress has 
specifically denied him. But that is what he has done.

This is at least the fourth occasion Bush has announced that he is not 
bound by statutes or treaties. He has said he is also free to ignore 
statutes prohibiting torture, detention of Americans without legislative 
authority, and electronic surveillance for intelligence purposes without 
compliance with laws set up to regulate that activity. These claims 
could be consistent with obedience to statutory law only if either the 
Constitution had given him exclusive powers (a contention that few 
accept), or the situations in which he claims authority were so unusual 
as not to have ever been contemplated by Congress. Certainly the general 
words of the congressional authorization to use force to deal with Al 
Qaeda were not meant to overrule every statute the president felt was a 
hindrance in fighting terrorism.

In each of these cases, Congress plainly addressed the very situations 
in which Bush now claims an exemption from law. The statute regulating 
electronic surveillance for intelligence purposes includes emergency and 
wartime exceptions. Congress had in mind the wartime detention of 
Japanese-Americans when it forbade detention of an American seized far 
from a war zone without a specific statute. The McCain amendment was 
intended to leave the president with discretion to apply the vague 
constitutional standard of ''shocking the conscience," but only that 
much discretion. Only the prohibition of torture is absolute and without 
exception, and Congress wanted it that way.

Indeed, the president's defiance of statutory law is even bolder than 
this suggests. Each of these executive actions, taken in violation of 
specific statutory prohibitions, has been treated as a matter of 
national security secrecy, and therefore anyone who reveals the fact 
that the president is violating statutes passed by Congress is subject 
to the immediate threat of prosecution under the espionage statutes. The 
result in the recent case of wiretaps of Americans without judicial 
warrants is particularly bizarre. There was nothing secret about our 
technical capacity to monitor phone calls coming to or from the United 
States. Nor was there anything secret about our desire to do so to 
prevent terrorism. No one has, finally, revealed whose calls or e-mail 
messages were the subject of surveillance. All that could have been 
secret about the activities described in the New York Times was that the 
president was defying a law that most thought he had to obey.

It is a fundamental mistake to think that the central domestic conflict 
about fighting terrorism is only between supporters of national security 
and supporters of civil liberties of Americans. The prior question is 
about the effect of law in the form of duly enacted statutes, negotiated 
between Congress and the president, reconciling these competing claims. 
The president is claiming that his powers to deal with terrorism as 
commander-in-chief override a negotiated compromise with the Congress, 
embodied in a statute signed by the president. He is saying, simply and 
flatly, that no law can stand in his way. We should not accept that claim.

If the threat of terrorism is to be with us for decades, will our 
children and grandchildren remember a time when our president's actions 
were ruled by law?

Philip B. Heymann, former US deputy attorney general, is a professor at 
Harvard Law School.  

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/12/bush_must_honor_the_rule_of_law/
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