By Christopher H. Pyle
Trust us, the Bush administration says. "We only break the law to get the bad guys. You are safe from us."
Really? How can we be sure? President George W. Bush continues to insist that ''We don't torture people,'' when the military has already court-martialed or reprimanded 251 servicemen for torturing or otherwise abusing prisoners. We have the photos from Abu Ghraib. We have memos from FBI agents who witnessed torture at Guantanamo, but still Bush says "we don't torture people," and expects us to believe him.
In defending the Patriot Act again in 2004, the President assured us that "any time you hear the United States government talking about wiretapping, it requires ... a court order. Nothing has changed." But since 2002 the National Security Agency had, on his orders, been secretly eavesdropping on thousands American citizens without court orders, as required by law.
NSA continues to seek judicial warrants, as required by the Foreign Intelligence Surveillance Act of 1978 (FISA), when it thinks that it can persuade a judge that there is probable cause to believe the target of a particular intercept was an agent of a foreign power or terrorist. But when it doesn't believe that it can meet this minimum standard, it ignores the FISA court and eavesdrops anyway.
This isn't just illegal; it isn't just fraud upon the court; it is a crime. The FISA statute, which was passed to stop the warrantless eavesdropping that NSA and the FBI had directed against the civil rights and anti-war movements of the 1960s, provides that its procedures "shall be the exclusive means" by which electronic surveillance for national security purposes may be conducted. Anyone who violates this law is guilty of a felony, punishable by up to five years in prison.
In ordering NSA to ignore the law and the court, President Bush committed a felony. So, too, did NSA's then director, Lt. Gen. Michael V. Hayden, now deputy director of national intelligence. They did not "take care that the laws be faithfully executed." They took care to commit crimes in secret.
In a speech in Kansas last week, the president made light of his felony. "If I wanted to break the law," he asked the audience, "why was I briefing Congress?" But he did not brief Congress. He directed Vice President Dick Cheney and Gen. Hayden to whisper in the ear of a few deaf mutes. The members they "briefed" (mostly loyal Republicans) were bound by secrecy agreements not to reveal anything they were told to Congress or even their own staffs.
For years President Bush has been saying that it is vital that Congress affirm and extend the Patriot Act, which strips courts of meaningful supervision of government searches, subpoenas, and demand letters. But now, as Attorney General Alberto Gonzales admits in a footnote to a memo defending NSA's illegal wiretapping, the Patriot Act is not necessary, because the president has the inherent power in wartime to do anything he wants to protect us from our enemies.
Bush's lawyers have been making these arguments in secret memoranda for years. They invoked them to justify the torture and degradation of prisoners. They used them to support the president's decision to abrogate the Geneva Conventions, ignore the Convention Against Torture, and disregard laws passed by Congress to implement those conventions. In December, when a Republican-led Congress reaffirmed the law against the cruel, inhuman, and degrading treatment of prisoners by passing Sen. John McCain's amendment, President Bush issued a "signing statement" asserting an "inherent" power (that no court has ever recognized) to ignore that law, too.
When President Bill Clinton lied to a grand jury about sexual matters, House Republicans impeached him for perjury - a felony punishable by up to five years in prison. The Senate refused to convict, but the Republicans' point was well taken. Presidents should not lie, or commit felonies.
Now we have a Republican president who has not only lied and committed a felony - he has claimed the power, as president in a perpetual war, to commit any crime he wishes, including torture. If Republicans, who now control Congress, allow him to get away with this assertion, future presidents of both parties will make similar claims, and constitutional government as we know it will come to an end.
Would you trust any senator or representative who allows any president, of any party, to get away with such lawless claims?
Christopher H. Pyle teaches constitutional law at Mount Holyoke College in South Hadley.
Christopher Pyle - Faculty Profile