Franz Kafka and George Orwell would have gotten a grim laugh out of President Bush’s radio address on Saturday, in which the president assured the nation that he had ordered Americans to be spied on, in direct defiance of a federal law that specifically prohibits such spying, because he is dedicated to protecting our “civil liberties.”
Bush’s executive order, which he has renewed more than 30 times in the past four years, violates the Foreign Intelligence Surveillance Act. The FISA, which was passed by Congress after Richard Nixon used the nation’s intelligence services to spy on his political enemies, requires the government to get a warrant from a special court, the FISC, before it can use shadowy organizations such as the National Security Agency to spy on Americans. The evidentiary standards for obtaining such warrants are low, and indeed the government has an almost unbroken record of success before the FISC.
Furthermore, the FISA provides that in appropriate circumstances the government can proceed with surveillance immediately, as long as it obtains a warrant within 72 hours after the spying begins. In his radio address, Bush claimed he had only authorized spying “to intercept the communications of people with known links to Al Qaeda and related terrorist organizations.” If this is true, it’s difficult to imagine an FISC court refusing to grant a warrant. And of course it’s easy to imagine what sort of spying a president might want to order that wouldn’t be approved by a court.
According to the New York Times, approximately 500 people are being spied on at any one time under what was known within the White House as “the president’s program.” Since people move on and off the list it’s possible that thousands of Americans have been spied on by the Bush administration since the program began.
Bush, of course, insists that what he’s doing isn’t illegal. Yet neither he nor anyone else in the government has explained where he gets the authority to ignore a federal statute. The reason is simple: either he has no such authority, or that authority comes from an extraordinarily expansive interpretation of the president’s constitutional powers.
That interpretation can be found in various memos and legal briefs authored by administration officials. For example, these officials have argued that, in least of time of war, the Constitution “vests in the President an unenumerated Executive power. The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.”
Translation: when we are at war _ or to be precise, when the president says we are at war _ the Constitution allows the president to ignore any law that in his opinion interferes with the war effort. (Incredibly, the administration is arguing that the congressional resolution passed immediately after 9/11 authorizing military action against Al Qaeda confirmed this supposed presidential power to disregard inconvenient laws.) War makes the president’s executive power unlimited, and not subject to any check or balance from either Congress or the courts. If he orders that Americans be spied on in defiance of federal law, and then assures us that the surveillance targets all have clear links to terrorist groups and that none of them are, for instance, merely ordinary dissidents or his political enemies, then we have no choice but to believe him.
War, in other words, transforms the United States from a constitutional republic into something rather different. All of this, naturally, is for our own good. If we wish to be “safe” then we must trust our president to wield his executive powers without meddlesome interference from judges or legislatures. Or, to echo a famous phrase from another undeclared war, sometimes it’s necessary to destroy the Constitution in order to save it.
(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)