Checks and No Balance

The domestic spying controversy is a story of immense importance. President Bush, by secret directive a few months after 9-11, allowed the National Security Agency, restricted by law to monitoring only foreign communications, to carry out a domestic spying program as well. This directive, now uncovered, is the latest clear confirmation that the president has been conferring more power on himself—without any checks or balances by Congress or the judicial system.

While previous presidents have at various times claimed the legal right to authorize searches and electronic surveillance without court warrants so as to gather foreign intelligence, those decisions have undergone scrutiny by either courts or congressional hearings.

It's fair to say that Bush had no intention of allowing public scrutiny of his act, since he personally summoned the top executives of The New York Times to a private meeting on December 6 and pressured them not to run the story about the domestic spying. The paper had held the story for a year at the administration's pleading but decided, after second thoughts and more reporting, that its importance required publication. It appeared on the Times' front page on Friday, December 16.

Some Bush supporters have attacked the Times for running the piece. On the other hand, some journalists have attacked theTimes for holding it for a year. From where I stand (I'm a Times alumnus), the paper should get credit for digging it out and publishing it. But whatever one's journalistic point of view, the Times' decision-making is not the central story here. The president's secret directive is.

The president and others in his White House said the leak of his decision to bypass existing law was a serious national security matter and hinted at an investigation. They argued that the existing Foreign Intelligence Surveillance Act (FISA), which requires court warrants and does not allow domestic spying by the National Security Agency, was not designed for an era of terrorism.

Since 9-11, Bush and his inner circle have insisted vehemently that all of the administration's anti-terrorism acts at home and overseas have been done in accordance with U.S. law and the Constitution.

But listen carefully to the president's own earlier statements, keeping in mind that the domestic spying operation has been in effect since early 2002.

On April 19, 2004, in Hershey, Pennsylvania, Bush said, speaking of anti-terrorism wiretapping: " . . . Everything you hear about [wiretapping] requires [a] court order, requires there to be permission from a FISA court, for example." Of note: A member of the FISA court just resigned from the 11-member federal panel in protest against Bush's secret domestic-spying program. The Washington Post reported that U.S. District Judge James Robertson sent his resignation letter to Chief Justice John Roberts on December 19.

On April 20, 2004, in Buffalo, New York, Bush said: "Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order." He added: "Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

On December 16, 2005, the day the Times story appeared, the president—interviewed on Jim Lehrer's NewsHour—would not discuss his domestic-spying directive ("We . . . don't talk about ongoing intelligence operations"). "But," he said, "it's important for the American people to understand that we will do—or I will use my powers to protect us, and I will do so under the law."

All the president's above statements about observing the court-order requirement and thus acting "under the law" would appear to be false.

They are false by the same measure that showed his weapons-of-mass-destruction claims to be false—after he misled the nation into war. And what about the misdirections and untruths the White House has promulgated about secret CIA prisons on foreign soil, or about violations of the Geneva Conventions against torture of prisoners, or about an operational link between Al Qaeda and Saddam Hussein, or about blaming the press for alerting Osama bin Laden to U.S. electronic surveillance techniques when the information has been in the public domain for years?

The lies—after all, that's what they really are—have become so numerous that reasonable people are beginning to hear echoes of the Nixon presidency and impeachment. Think about all those rosy "trust me" speeches Bush has been delivering.

As for his drumbeat claims that he is honoring the Constitution and the nation's laws, then why did a FISA judge resign, and why are his colleagues now demanding intelligence briefings on the president's secret sidestepping of their jurisdiction? Why are moderate Republicans leaving Bush's side over these issues—all of which have their origin in the president's self-expansion of power as he devised the invasion and ongoing war in Iraq?