Bush's Unprecedented Arrogance

By John Dean, FindLaw.com. Posted April 5, 2006.

President George Bush continues to openly and defiantly ignore the Foreign Intelligence Surveillance Act (FISA) -- the 1978 statute prohibiting electronic inspection of Americans' telephone and email communications with people outside the United States without a court-authorized warrant. (According to U.S. News & World Report, the President may also have authorized warrantless break-ins and other physical surveillance, such as opening regular mail, in violation of the Fourth Amendment.)

Bush's position is that he does not need Congressional approval for his measures. Even he does not claim that Congress gave him express power to undertake them, but he does claim that Congress indirectly approved such measures when it authorized the use of force to go after those involved in the 9/11 terror attacks on the United States. He also argues that, in any event, approval was not necessary -- for he argues that he has such authority under Article II of the Constitution, as the chief executive, and Commander in Chief, charged with faithfully executing the laws of the land and protecting the Constitution.

These arguments are hauntingly familiar to this observer.

The Nixon Precedent

No one can question President Bush's goal: Protecting Americans from further terror attacks. But every American should question his means: Openly defying a longstanding statute that prohibits the very actions he insists on undertaking, when done in the very manner he insists upon doing them. In some two hundred and seventeen years of the American presidency, there has been only one President who provides a precedent for Bush's stunning, in-your-face, conduct: Richard Nixon. Like Bush, Nixon claimed he was acting to protect the nation's security. Like Bush, Nixon broke the law -- authorizing, among other things, illegal wiretaps.

Ironically, a stronger case might be made for Nixon's warrantless wiretaps, than for Bush's. Nixon's were installed to track leaks of national security information relating to the war in Vietnam. (He never found the leaker.) He pursued domestic intelligence by illegal means because he believed -- based on information from President Lyndon Johnson -- that communists had infiltrated the anti-war movement. (No such evidence was ever found.) In addition, he believed that extreme measures were necessary to deal with domestic terrorists, who were responsible for hundreds of deadly bombings. (This is the same argument Bush makes today.)

Nixon also claimed he was only doing what his predecessors had done. That was not untrue -- but what had, in the past, been the exception to the rule became standard operating procedure under Nixon. Bush, however, can only claim one predecessor for his actions: Nixon. And, of course, he has not made this claim -- for Nixon was forced from office because of his defiance of the law.

Prior Presidents Have Always Gone To Congress

Bush has admitted he is ignoring FISA. His Attorney General has offered lame and loose legal justifications that he ought not to dare attempt in any court of law. Only blind partisan followers buy the president's bogus legal arguments. The U.S. Supreme Court's prescient discussion of presidential powers reveals how weak these arguments really are.

In May 1952, President Truman directed his Secretary of Commerce, Charles Sawyer, to take charge of the nation's steel mills, rather than permit a strike by steelworkers -- and intransigent management -- from hampering national security. The nation was at war in Korea, and without steel, the war effort would be in jeopardy. Truman informed Congress of his actions, but rather than asked for emergency legislation, he proceeded by executive order.

The owners of the steel mills immediately sought an injunction, which was granted by a federal district court judge, and the government appealed directly to the U.S. Supreme Court. In a 6-3 ruling, the Court, in Youngstown Co. v. Sawyer, held that Truman's attempted takeover of the steel mills was unconstitutional. Truman then asked Congress for emergency legislation, but Congress turned him down too.

As the strong dissent in Youngstown notes, the "diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to" deny Truman this power. It seems Bush believes he can ride on that dissent. But in the end, the dissent not only is not the law; it is not persuasive.

Truman's actions were not unprecedented: President Lincoln had seized rail and telegraph lines during the Civil War; President Theodore Roosevelt was ready to seize Pennsylvania coal mines if a strike created shortages; President Wilson seized industrial plants and railroads during World War I; and six months before Peal Harbor, President Franklin Roosevelt seized a California aviation plant when a strike occurred. These presidents, however, went to Congress -- as Truman also eventually did. Only Bush (like Nixon) refuses to do so.

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