All the President's Confessions

By G. Pascal Zachary, AlterNet. Posted December 23, 2005.

Bush's statement last Saturday that he ordered domestic spying, knowing it was possibly against the law to do so, was an astonishing confession in the annals of American history -- and the defining moment of Bush's tortured presidency. Why, after all, would the president open himself to the possibility, however remote, of an impeachment proceeding?

If American presidents stand for anything, it is deniability. This is the prime directive of presidential authority. More than 50 years ago, Franklin D. Roosevelt, who invented the Imperial Presidency and presided over the country during World War II, avoided leaving a paper trail of his most sensitive decisions. Even his order to build an atomic weapon was vague. "O.K. - FDR" is the only surviving record of his ever having granted authority for what turned out to be the most expensive and secretive project in American history.

Later presidents also took pains to make sure they were in a position to deny knowledge of executive actions clearly outside the law. President Eisenhower would not admit to flying spy planes over the Soviet Union at the height of Cold War hysteria in the late 1950s, even though his Democratic opponents were making false accusations about Russian capabilities to strike the U.S. with nuclear weapons. President Kennedy kept a safe distance from secret plots to kill Cuban leader Castro (unsuccessful) and South Vietnamese president Diem (successful). President Johnson approved the fabrication of evidence that led the U.S. Congress to authorize a wider war in Southeast Asia.

None of these presidents ever admitted that their actions had broken the law.

Not even President Nixon, at the height of Watergate, admitted to breaking the law. Nor did Bill Clinton, who was a master of denial. He denied "inhaling" pot, he denied fellatio was real sex, he denied the Whitewater allegations.

Indeed, presidents past have denied breaking the law, even when they have, because following the law is their prime directive, their sole basis for democratic legitimacy. In political theory, the executive is a hybrid creature, part enlightened monarch and part accountable leader. The executive is free to act on the basis of his or her conscience -- the enlightened monarch -- but he or she must do so subject to laws approved by a legitimate independent body, on which the executive's accountability rests.

The need for a balance between executive action and democratic accountability was crucial to the creators of the American republic in the late 18th century. Until then, the democratic movements in Europe had succeeded only in subjecting monarchs to certain limits, such as "the power of the purse" in England. In the U.S., the president would be circumscribed by law. This was the great invention of American political practice, even more so than the idea of federalism, which enabled different states of the union to manage their affairs differently.

Because rule of law is fundamental to the moral basis of the presidency, presidents must even uphold laws they don't agree with. Indeed, the willingness of presidents to do so is their defining trait. In this regard, presidents are unlike other citizens. They do not have the option to perform acts of civil disobedience. They cannot argue, in essence, that their conscience does not allow them to abide by the law.

Why then is President Bush insisting on his duty, and even his right, to disregard the laws covering domestic spying, laws that demand the government seek a judge's authority before spying on Americans on American soil?

One explanation, of course, is that Bush hopes to find that he actually possesses the legal authority to unilaterally spy on his own citizens. The chances of him constructing a compelling case for this power, however, seem slim. He is not surrounded by great legal minds, and the consensus among constitutional scholars is clear. As Geoffrey Stone, a law professor at the University of Chicago, told the New York Times on Wednesday, "The president's authorizing of the N.S.A. to spy on Americans is blatantly unlawful and unconstitutional."

G. Pascal Zachary is the author of Endless Frontier: Vannevar Bush, Engineer of the American Century, a biography of FDR's science adviser and architect of the Manhattan Project.

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