[Mb-civic] Why Bush needs a new lawyer - Abner Mikva - Boston Globe Op-Ed

[William Swiggard]

  Why Bush needs a new lawyer

By Abner J. Mikva  |  January 30, 2006  |  The Boston Globe

OUR COUNTRY has always struggled to find the correct balance between 
liberty and security. What can the government do legitimately and 
constitutionally to protect us from dangers while preserving our 
freedoms? That tension is greatest in times of crisis, whether during 
hot wars, cold wars, or terrorist attacks.

President Bush now argues that in the post-9/11 world there is no such 
tension. A president need not obey some laws because the president's 
''inherent" powers trump the Congress. The Foreign Intelligence 
Surveillance Act and the McCain Amendment to ban torture are only 
advisory because Congress cannot encroach on a president's inherent 
constitutional authority in matters of national security.

This has never been the law. A president who defies acts of Congress for 
professed reasons of national security is ''breaking the law repeatedly 
and persistently," as former Vice President Al Gore recently charged.

President Bush now campaigns that Congress cannot impede his inherent 
powers to protect Americans. Bush asserts an unrestricted right to 
conduct warrantless domestic spying, even though the surveillance act 
forbids this. Likewise, the administration brazenly asserts that the 
president possesses the authority to mistreat detainees, even after 
signing a law banning torture.

As criticism of this scofflaw behavior has mounted, Bush's lawyers have 
come up with fatuous defenses. First they argue Congress authorized the 
president's use of the National Security Agency for domestic spying 
through the 9/11 Resolution, which was passed after the terrorist 
attacks on New York and Washington. Then the president argues that he 
wasn't defying Congress because he told a few of them what he was doing. 
The administration needs some new lawyers. The claim that Congress 
authorized spying on Americans when it voted for the use of force after 
9/11 is preposterous. Constitutional scholars from both the left and 
right agree that it cannot remotely be so interpreted.

In the case of the Foreign Intelligence Surveillance Act, Congress 
carefully balanced the liberties protected in the Bill of Rights with 
the need for surveillance of foreign enemies. To argue that Congress 
cannot place any limits on the president's ability to conduct a war on 
terror, as the Bush Justice Department argued in its infamous ''torture 
memorandum," is absurd. It is especially dangerous when the president 
ignores a statute that deals with the core liberties of US citizens.

The Bush administration's effort to defend its actions by claiming that 
the Clinton administration engaged in similar abuses is patently false. 
In 1993 President Clinton asserted inherent power to justify a 
warrantless physical search because the surveillance act was silent on 
the issue. At that time, the act required warrants for electronic 
surveillance for intelligence purposes, but did not cover physical 
searches. As a result of the Ames case, the law was changed to cover 
physical searches, which President Clinton signed into law.

The courts have traditionally been reluctant to intervene when the 
president's constitutional powers and Congress directly collide. Supreme 
Court Justice Robert H. Jackson's famous opinion in the Steel Seizure 
case remains the governing framework. In that case, in reasoning that 
President Truman exceeded his powers by seizing steel mills as part of 
his Korean War effort, Jackson wrote that although the president has 
some inherent powers, those powers are at their ''lowest ebb" when the 
Constitution also vests Congress with authority. For example, the 
Constitution gives Congress the power to prescribe rules for the 
regulation of the armed and naval forces, and so if a statute prohibits 
the military from engaging in torture or cruel, inhuman, and degrading 
treatment, the president must follow that dictate. (Constitutionally, 
the president must ''faithfully execute the laws.")

When Congress has no constitutional authority, statutes limiting the 
president's inherent authority may have less or no force. If Congress 
enacted a law requiring the president to conduct military operations in 
a particular manner, a president might correctly disregard that law.

But when the civil liberties of Americans are at stake, Congress 
undoubtedly possesses constitutional power equal to the president's 
authority. As Justice Sandra Day O'Connor wrote in one case, ''Whatever 
power the United States Constitution envisions for the Executive in its 
exchanges with other nations or with enemy organizations in times of 
conflict, it most assuredly envisions a role for all three branches when 
individual liberties are at stake." America's strength lies in its 
belief in the rule of law. Congress can change the surveillance act if 
new circumstances justify a legislative solution. But playing on the 
fears of Americans to justify unconstitutional behavior is to sacrifice 
the very freedoms we are fighting to preserve. President Bush should not 
allow Osama bin Laden to gain that victory. We can defeat terrorism with 
our Constitution intact.

Abner J. Mikva was a Democratic representative from Illinois who later 
served as chief judge of the US Court of Appeals for the District of 
Columbia and as White House counsel.  

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/30/why_bush_needs_a_new_lawyer/
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