The President’s Last Stand


On January 20, 2009, when the next President of the United States swears to “preserve, protect, and defend the Constitution,” will he or she instruct the new Congress to undo the subversions of that document perpetrated by George W. Bush during his final months in office?

At a Justice Department meeting last month, a range of civil-liberties lawyers asked administration officials if the president would agree to be limited by even the hugely expanded powers in the new Protect America Act, which allows his administration to engage in warrantless spying on Americans’ e-mails and phone calls. It became alarmingly clear that the answer was no: The president remains convinced that he has an inherent constitutional power to do whatever he (and he alone) considers necessary to protect the national security.

Bruce Fein, a conservative constitutional lawyer who served in the Reagan Justice Department, was at that meeting, and said during an August 15 Bill of Rights Defense Committee conference call:

“The president claims he doesn’t have to obey any law under the Constitution’s Article II powers,” an article that begins with the words, “The executive Power shall be vested in a President of the United States of America.”

At the Justice Department meeting, as reported in the August 18 New York Times, Justice Department officials repeatedly refused to give “an assurance that the administration considered itself bound by the restrictions imposed by Congress.”

Democratic congressman Neil Abercrombie of Hawaii voted against the Protect America Act: “We cannot give the president an unrestricted license to snoop and bully [U.S.] citizens. He’s seeking the power of kings, and I’m not about to make the president of the United States a new king.” But there was enough Democratic support to assure passage of the Protect America Act.

Among the additional new extensions of surveillance power over us by the king and his ministers is a plan to give national and local law-enforcement officials much more access to photos taken by spy satellites and aircraft sensors that, as the August 16 Washington Post warned, “can see through cloud cover and even penetrate buildings. . . . [This] broader domestic use of secret overhead imagery” can begin as early as this fall. However, officials at the Department of Homeland Security and in the office of the Director of National Intelligence give us “total assurance” that our civil liberties will be protected. Play it again, Sam.

Meanwhile, another ceaseless guardian of our civil liberties, the FBI, is working on a project, the System to Assess Risk (STAR), that will allegedly detect traces of terrorist “sleeper cells” here at home before they can strike.

The Bush administration has already set national (and, I expect, world) records for databasing its citizens. But the FBI, in its budget request to Congress for the STAR project—as reported by National Public Radio’s ever-watchful Dina Temple-Raston on July 17—”expected the new center would be sifting through some six billion pieces of data by 2012.” (Emphasis added.) Temple-Raston added: “That translates to 20 records for every man, woman, and child in America.” It’s too soon for my newest grandchild, two-year-old Ruby Hentoff, to be included, but if STAR continues under the next president, then Ruby—considering her already-databased grandfather—could well become “a person of interest.”

Focusing on this president’s belief that Article II of the Constitution enables him to appoint himself dictator, the conservative columnist George Will reminds us of President Harry Truman’s 1952 attempt to assert his own “inherent powers” in order to take over the nation’s steel mills and prevent a wartime strike (the war in question being the Korean War). The Supreme Court confronted Truman—like Van Helsing waving a cross before Dracula—with the Constitution’s separation of powers. In a concurring opinion that I hope the members of the current Supreme Court are familiar with, Justice Robert Jackson thundered:

“No penance would ever expiate the sin against free government of holding that a president can escape control of executive power by law through assuming his military role . . . . [Historians] have discovered no technique for long preserving free government except that the Executive be under the law. . . . ”

Among the Democratic presidential candidates, only Senator Chris Dodd of Connecticut has introduced a bill, the Restructuring the Constitution Act, that cuts out some of this president’s most dangerous exclusive powers under the Military Commissions Act of 2006. Unlike Dodd, the two leading Democratic contenders, Hillary Clinton and Barack Obama, have not focused on this regal assumption of unconstitutional authority, which few Americans are likely to have in mind when they vote in November 2008 (though Dennis Kucinich has spoken of it).

But as George Will angrily writes in Newsweek‘s August 13 issue, the Military Commissions Act, building on the Bush administration’s previous arrogation of dark powers, “treats all of America as a battlefield on which even American citizens can be declared ‘enemy combatants,’ seized and held indefinitely, as intelligence can be collected by any means the president orders”—something that Bush’s July 2006 executive order on the CIA’s torture techniques further asserts.

Back in December 2002, a member of Congress about to retire spoke to us all: “We, the people, had better keep an eye on our government—not out of contempt or lack of appreciation or disrespect, but out of a sense of guardianship.”

He was giving his farewell address at the National Press Club, and he ended by fervently addressing his colleagues in Congress: “How do you use these tools we have given you to make us safe in such a manner that will preserve our freedom? . . . Freedom is no policy for the timid. And my plaintive plea to all my colleagues that remain in this government as I leave it is, for our sake, for my sake, for heaven’s sake, don’t give up on freedom!”

This latter-day Minuteman was the very conservative House majority leader, Dick Armey. The same Dick Armey who, while still in office, defied George W. Bush and John Ashcroft by tearing out a provision of the “Freedom and Security” section of the administration’s Homeland Security Bill, a plan (“Operation Tips”) that would have given millions of Americans the authority to formally report, via a toll-free number, “suspicious” or “unusual” activity (otherwise undefined) that struck them as terrorist-related.

Roared Representative Armey as he killed that section, at least for a time: “Citizens will not be informants!” At the same time, Democratic congressional leaders Tom Daschle and Dick Gephardt were both conspicuously silent on “Operation Tips.”

In the current Democrat-controlled Congress, what will the leadership do regarding the FBI’s STAR program and the surveillance of American citizens from on high by spy satellites? I know I can count on senators Pat Leahy and Ron Wyden—but how many other Democrats, fearful of being tarred as soft on terrorism by our commander-in-chief, will once more refuse to take a stand?