Concern about an administration intent on creating an all-powerful executive that does not understand the important and co-equal functions of the courts or Congress continues to mount. Bush has defended his wiretapping program as a tool in the fight against terrorism that relies on inherent powers of the presidency to permit him to circumvent the secret court whose function it is to issue warrants in intelligence cases and additionally claims that it was implicitly authorized under the 2001 Congressional resolution that permitted military action against Al Queda. See this Washington Post story about Gonzales' response to Congress' request for the legal rationale.
Bush's use of those two shaky legal authorities (the Commander-in-Chief function assigned to the President in the Constitution and the Congressional authorization for military action as a followup to the 9/11 terrorist attacks) are especially suspect because of new evidence that he authorized extralegal wiretapping before 9/11, in the early days of his administration. See this article at TruthOut.
Al Gore gave a tremendously important speech to the American Constitution Society on Martin Luther King Day, available at this Alternet link. As Gore noted, domestic surveillance has been used historically as a means to undercut political opponents. Martin Luther King was illegally wiretapped as were various anti-war groups in a later era. Gore expressed the concerns of all Americans committed to a sustainable democracy in the following paragraphs.
A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution -- our system of checks and balances -- was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."
An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution -- an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Id.
Regretably, the White House responded to Gore's speech with its typical gunslinger approach. Caught redhanded violating the surveillance law after claiming in public that no surveillance was done without a warrant, the White House used their typical everybody-else-does-it defense. Scott McClellan accused Gore of hypocrisy, calling attention to warrantless searches conducted in the Aldrich Ames spy case during the Clinton administration. See Washington Post story, White House Disputes Gore on NSA Spying. What McClellan failed to say is that those were physical searches, not illegal wiretaps, and that physical searches were not included in the surveillance act until a change was enacted and signed by Clinton. McClellan also arrogantly dismissed the ACLU and CCR suits as "frivolous", demonstrating that this White House does not understand the importance in a democracy of having the support of the people. Congress should recognize the gravity of these actions and immediately establish an independent investigation and in-depth analysis of the Bush Administration's wiretapping and data-gathering operations.
The ACLU and Center for Constitutional Rights have already filed separate lawsuits calling for an injunction against the wiretaps. See this story in the San Diego Post and this summary posted on the CCR website. CCR's complaint calling for injunctive relief is at this link. The lawsuits assert that Bush exceeded his authority and violated the Fourth Amendment guaranteed against unreasonable searches and seizuers when he ordered National Security Agency domestic surveillance.
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