Deconstructing the president's defense

If Bush has inherent authority to spy on Americans without warrants, why didn't he use that authority to prevent 9/11?

By Tim Grieve

Published December 19, 2005 6:45PM (EST)

As we noted earlier today, the White House is making a two-pronged argument to defend a secret spying program that violates the Foreign Intelligence Surveillance Act of 1978. First, George W. Bush and his attorney general say, the president has inherent authority as commander in chief to do what he thinks is necessary to protect Americans from an enemy attack. Second, they say, Congress somehow implicitly repealed FISA when it adopted a use-of-force authorization in the days after the attacks of 9/11.

For the White House, the first of these arguments ought to be at least a little embarrassing. The president has said he would have "moved mountains" to prevent the attacks of 9/11. But doesn't the administration's argument about the secret spying program suggest that Bush did less than he could have done before the planes struck?

Let's walk through this one step at a time. In an interview to be aired on "Nightline" tonight, Dick Cheney says pretty unequivocally that the Bush administration might have been able to prevent 9/11 if it had had the capability that Bush's executive order on spying gave it in 2002. "It's the kind of capability [that], if we'd had before 9/11, might have led us to be able to prevent 9/11," Cheney says. "We had two 9/11 terrorists in San Diego prior to the attack in contact with al-Qaida sources outside the U.S. We didn't know it. The 9/11 Commission talks about it. If we'd had this capability, then we might well have been able to stop it."

At the same time, however, Cheney and Alberto Gonzales and Condoleezza Rice and Bush himself are all insisting that Bush has the power, as part of his inherent authority as commander in chief, to sign the executive order that he signed. If they're right about that, doesn't it follow that Bush could have signed his executive order some time before 9/11 -- say, on the day that he was warned that Osama bin Laden was determined to strike in the United States? And if he didn't, isn't it the case that Bush really didn't do everything he could have done to prevent Sept. 11 from becoming anything other than another date on the calendar?

Maybe that's why administration officials are careful to make a two-part argument on the spying order. Bush had inherent authority to sign his executive order, they say, but he also obtained additional authority from Congress when it approved a measure authorizing the use of force against al-Qaida.

This second argument is ridiculous on its face. Congress knows how to repeal a law when it wants to do so, and it didn't give any clue that it was repealing the Foreign Intelligence Surveillance Act when it authorized the president to use force against al-Qaida. While the congressional resolution authorized Bush to use "all necessary and appropriate force against those nations, organizations or persons" who participated in the attacks of 9/11 or helped or harbored those who did, it didn't authorize Bush to violate FISA any more than it authorized him to violate laws against murder, insider trading or jaywalking.

But arguments that seem ridiculous sometimes carry the day in court anyway, and this one has before. When lawyers for Yaser Hamdi argued that the president lacked the authority to order the indefinite detention of American citizens he deemed "enemy combatants," the Justice Department countered with the same arguments the White House is floating now: Bush has inherent authority to detain combatants in time of war, and Congress gave him additional authority with its use-of-force authorization. Only Clarence Thomas bought the first argument, but five justices -- Thomas, O'Connor, Rehnquist, Kennedy and Breyer -- accepted the idea that the power to detain "enemy combatants" should be read into the use-of-force authorization. Indeed, O'Connor, writing for a four-judge plurality in the Hamdi case, insisted that the use-of-force authorization was "explicit" authorization for Bush to hold detainees even though the authorization itself was silent on the subject.

Was the Hamdi case different? In this way, it was: It went to court. By taking it upon himself to rewrite FISA through executive order, Bush has avoided that inconvenience. The Constitution's checks and balances just aren't necessary, he insisted during his press conference today: The president and his lawyers have sworn to uphold the law, and the American people can trust that they're doing so. "I disagree with your assertion of 'unchecked power,'" the president shot back when a reporter raised the question today. "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject."

But it isn't the reporter who was ascribing "some kind of dictatorial position" to the president. It's Bush who has taken it for himself. In a sign of just how far this administration has come from the first principles of conservatism, even Antonin Scalia seems troubled by the powers that Bush and his lawyers have assumed for themselves. Dissenting in the Hamdi case last year, Scalia quoted Alexander Hamilton on the dangers of trading away liberty for safety, then wrote words that seem entirely applicable today: "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

Those are big words, and they remind of some other ones that occurred to us today: Bill Clinton was impeached for lying about blow jobs.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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