Presidents who ignore the law

The debate over so-called "warrantless wiretapping" is heating up again.

Sen. John McCain, R-Ariz., has said that he would be bound, as president, to obey laws passed by Congress. But his campaign has also signaled in recent weeks that President Bush was right to authorize the wiretapping program after 9/11 — despite a 1978 law saying such efforts must be overseen by a court.

In the meantime, Congress still hasn’t given permanent approval to the surveillance program. Democrats and Republicans in the House remain at an impasse on the issue of lawsuit immunity for telecommunications companies that assisted the Bush Administration in the warrantless wiretapping program before it became public.

Does a president have the power to ignore the law? Should the surveillance program be given approval? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, jump into the fray.


No one disputes the need to track potential threats to American security.

But governments throughout history have demonstrated a tendency to abuse their powers of surveillance, and America is no exception: Whatever their other merits, J. Edgar Hoover and Richard Nixon are remembered and rightly reviled for such abuses. Proper oversight measures help ensure that spying serves our democracy instead of subverting it.

The warrantless wiretapping program subverted democracy. To implement it, the Bush Administration had to bypass checks and balances created by Congress and implemented by the courts, essentially claiming (once the program finally became public) that security interests trumped the rule of law. Sen. John McCain’s recent statements suggest he approves of the Bush approach, which should be of great concern to liberty-loving voters contemplating the November election.

Now the Bush Administration — backed by McCain — wants Congress to approve amnesty for telecommunications companies facing lawsuits over their participation in the program. But if there are no consequences for breaking the law, then there is no rule of law — only the force of a president’s desires. Republicans wouldn’t want a Democratic president to have such power; they shouldn’t want it for a Republican president, either.



Congress could pass a bill barring the president from meeting foreign leaders, or one requiring him to submit every battlefield decision for congressional approval. Congress could do those things, and a president could even sign such bills into law, but they would still be unconstitutional. Congress can do nothing that undermines the president’s powers under Article II of the Constitution. And a statute certainly does not trump the president’s authority to gather vital intelligence in wartime.

When Congress passed the Federal Intelligence Surveillance Act in 1978, President Jimmy Carter gladly signed the law, which was aimed at reining in Nixon-era abuses and, incidentally, scoring partisan points. But even Carter’s Attorney General, Griffin Bell, emphasized that the law "does not take away the power of the president under the Constitution." In fact, a Carter executive order laid the foundation for the warrantless wiretaps the Bush administration approved after 9/11.

At worst, the controversial National Security Agency program that the Bush administration launched in the wake of the terrorist attacks was ambiguous under FISA. Congress crafted new legislation to "modernize" FISA — which McCain supports — to remove any legal doubt from the NSA program. But the Democratic leadership has balked at passing the bill because trial lawyers want the right to sue deep-pocketed telecom firms.

Executive power always carries with it the possibility of abuse. That is especially true in wartime. But the hysteria surrounding the NSA program has more to do with partisan politics than legitimate concerns about Americans’ constitutional rights.

Ben Boychuk and Joel Mathis blog daily at and