The Man Who Would Be King

by Ray McGovern

Ray McGovern works with Tell the Word, the  publishing arm of the ecumenical
Church of the Saviour in Washington,  DC. He was a CIA analyst for 27 years
and is co-founder of Veteran  Intelligence Professionals for Sanity (VIPS).     

Who can forget the chutzpah of President  George W. Bush as he bragged to Bob
Woodward, "I'm commander in  chief.... That's the interesting thing about
being president ... I don't  feel like I owe anybody an explanation."
* * *
Wrong, Mr. President. You and Vice President  Cheney seem to have missed
"Constitution 101." And you seem to have  laughed off admonitions against hiring
lawyers eager to give an  obsequious nihil obstat to whatever you want to do.
You have  allowed the likes of David Addington, Alberto Gonzales, John Yoo to
do  what Senator Chuck Hagel (R-Nebraska) has accused you and your advisers  of
doing regarding Iraq - "making it up as they go along." It's enough  to make
you believe Shakespeare may have been right about lawyers.
Mr. President, you can't just keep making  things up - things like "unitary
executive," and "unlawful combatant,"  and "military tribunals" and "enhanced
interrogation techniques." You  cannot make-believe them into law. These
quasi-legal constructs are  bound to come back to roost. The US Constitution is not
just anther  piece of paper. Indeed, it seems to be getting a new lease on
life these  days. Now you and your lawyers have run into a tough judge who takes
the  Constitution very seriously indeed and shows no sign of bending with the 
prevailing winds.
* * *
Yesterday's ruling by Judge Anna Diggs Taylor  of the US District Court in
Detroit against warrantless eavesdropping  did not beat around the bush, so to
speak. Her strong words would, I  imagine, have brought broad smiles to the
faces of those who crafted the  Constitution - despite the irony that, in that
sad time of racial  exclusion, they would not have thought to include Judge
Taylor in "We,  the people." 
The power and simplicity of her words brought  immediately to mind another
distinguished African-American woman and  jurist who rose to the occasion a
generation ago during the impeachment  proceedings against President Richard
Nixon. A member of the House  Judiciary Committee that approved articles of
impeachment against a  president she described as "swollen with power and grown
tyrannical,"  Congressman Barbara Jordan (D-Texas) addressed her colleagues:
My faith in the Constitution is whole; it is complete; it  is total. I am not
going to sit here and be an idle spectator to the  diminution, the
subversion, the destruction of the Constitution....  The Constitution charges the
president with the task of taking care  that the laws be faithfully executed.
Yesterday, Judge Anna Diggs Taylor's unminced  words resonated with those
sentiments - and some righteous anger. She  ruled that Bush's eavesdropping
program is "obviously in violation of  the Fourth Amendment" as well as the 1978
Foreign Intelligence  Surveillance Act (FISA), which expressly forbids
eavesdropping on  Americans without a court warrant. She gave short shrift to the White
 House argument that the president's powers as commander in chief of the 
armed services in time of war enable him to disregard this and other  laws. The
administration's painfully stretched contention that the  post-9/11
Congressional authorization of force somehow gave the  president the authority to
disregard FISA was also summarily  rejected.
Eight months have gone by since James Risen's  exposè of the eavesdropping
program appeared in the New York Times, so  we would do well to call up some key
facts - especially since  demagoguery and posturing is again in full swing.
Congressman Peter  Hoekstra (R-Michigan) castigated Judge Taylor yesterday for
"taking it  upon herself to disarm America during a time of war." (Hoekstra is
chair  of the House Intelligence Committee charged with overseeing 
(overlooking?) NSA and other programs.) Speaker Dennis Hastert  (R-Illinois) spiced
things up, claiming that the eavesdropping program  "saved the day by foiling the
London terror plot."
Lost in the underbrush is the reality that  the architecture of FISA was
shaped not only to protect the privacy of  Americans but also to give the White
House considerable latitude in  pursuing urgent opportunities. For example, the
executive branch is  permitted to eavesdrop on conversations for three days
without having to  seek a warrant from the FISA court. And, when sought,
warrants have been  virtually automatic.
When questioned about the legality of  President Bush's eavesdropping program
on May 8, the widely respected  Admiral Bobby Ray Inman, who was director of
the National Security  Agency (NSA) when the FISA law was passed (and later
deputy director of  the CIA), said:
There clearly was a line in the FISA statutes which says  you couldn't do
this ... There was even an extra sentence put in the  bill that said, "You can't
do anything that is not authorized by this  bill."
Inman criticized the decision not to go to  Congress to revise the statute,
if the administration decided it needed  to amend it to deal with issues not
anticipated in 1978.
What seems to have escaped notice is that the  White House did take soundings
in Congress. This has been known since  December 19, 2005, when Attorney
General Alberto Gonzales was asked by  the press why the administration did not
seek new legislation to enable  it to conduct such a program legally - Why the
"backdoor approach?" In  an unguarded moment, Gonzales tied himself in knots
trying to have it  both ways:
This is not a backdoor approach. We believe Congress has  authorized this
kind of surveillance. We have had discussions with  Congress in the past -
certain members of Congress - as to whether or  not FISA could be amended to allow
us to adequately deal with this  kind of threat, and we were advised that that
would be difficult, if  not impossible.
Strange. If you believe you already have  Congressional authorization, why
sound out members of Congress on the  prospects for obtaining authorization?
Besides, deliberations on this  issue took place in the immediate post-9/11
atmosphere in which the  draconian Patriot Act sailed through Congress. Surely the
way would have  been clear for any reasonable proposal to amend the already
flexible  FISA. As James Risen has quipped, "In October 2001 you could have set
up  guillotines on the public streets of America."
It is hard to escape the conclusion that the  eavesdropping program (since
dubbed the "Terrorist Surveillance  Program") was of such scope and
intrusiveness into our Constitutional  rights that it stood no chance of being approved
even in the immediate  post-9/11 atmosphere.
So Who Cares?
Administration leaders keep telling us that  the "Terrorist Surveillance
Program" is necessary to intercept  communications between al-Qaeda terrorists and
Americans who might be in  cahoots with them. Details about the program are
denied even our elected  representatives in Congress. And with the fear factor
periodically  stoked, most Americans go along. How many of your friends have
told you,  "I don't care if my telephone calls are monitored; I'm not talking
to  al-Qaeda." This attitude is reminiscent of obedient German citizens who 
acquiesced during an analogous time.
On February 27, 1933, four weeks after Hitler  was sworn in as Chancellor,
the Reichstag building, Germany's parliament  was destroyed in a fire. Hitler
took full advantage of this 9/11-like  calamity to whip up fear of "terrorists"
- in this case, Communist  terrorists - and to impose legislation curtailing
the rights of German  citizens. The Germans, by and large, acquiesced.
In Defying Hitler: A Memoir, Sebastian  Haffner provides an eyewitness
account of those days in Berlin:
With sheepish submissiveness the German people accepted  that, as a result of
the fire, each one of them lost what little  personal freedom and dignity was
guaranteed by the constitution; as  though it followed as a necessary
consequence.... more than one [of my  colleagues] hinted that they had doubts about
the official version;  but none of them saw anything out of the ordinary in the
fact that,  from now on, one's telephone would be tapped, one's letters
opened,  and one's desk might be broken into. (pp 121-122)
Dèjá vu? At 73, Judge Anna Diggs Taylor is  old enough to remember. And she
is certainly old enough to have lived  through the indignities suffered by Dr.
Martin Luther King Jr. and so  many others at the hands of the
wire-tapping-happy head of the FBI, J.  Edgar Hoover - an inadvertent catalyst for the FISA
legislation. In  other words, Judge Taylor clearly has a firm grasp of the
burgeoning  danger to our liberties in these times and the need for scrupulous 
adherence to the rule of law - a grasp akin to that of the framers of  the
Constitution. This is a good thing. One can only hope and pray that  her colleagues
on the bench will display equal integrity and  steadfastness.