The sound of civil liberties evaporating

The sound of civil liberties evaporating
By Jacob Weisberg
Published: January 26 2006 02:00 | Last updated: January 26 2006 02:00. Copyright by the Financial Times

It is tempting to dismiss the debate about the National Security Agency spying on Americans as a technical conflict about procedural rights. The president believes he has the legal authority to order electronic snooping without asking anyone's permission. Civil libertarians and privacy-fretters think George W. Bush needs a warrant from the special court set up to authorise wiretapping in cases of national security. But, in practice, the so-called FISA court that issues such warrants functions as a rubber stamp for the executive branch anyhow, so what is the difference in the end?

Would that so little were at stake. In fact, the Senate hearings on NSA domestic espionage that are set to begin next month will confront fundamental questions about the balance of power within our system. Even if one assumes that every unknown instance of warrant-less spying by the NSA was justified on security grounds, the arguments issuing from the White House threaten the concept of checks and balances as it has been understood in America for the past 218 years. Simply put, Mr Bush and his lawyers contend that the president's national security powers are unlimited. And since the war on terror is currently scheduled to run indefinitely, the executive supremacy they are asserting will not be a temporary condition.

The extremity of Mr Bush's position emerges most clearly in a 42-page document issued by the Department of Justice last week. As Andrew Cohen, a CBS legal analyst, wrote in an online commentary: "The first time you read the 'white paper', you feel like it is describing a foreign country guided by an unfamiliar constitution." To develop this further, the nation implied by the document would be an elective dictatorship, governed not by three counter-poised branches of government, but by a secretive, possibly benign, awesomely powerful despot.

According to Alberto Gonzalez, attorney-general, the putative author of the white paper, the president's powers as commander-in-chief make him the "sole organ for the nation in foreign affairs". This status, which derives from Article II of the Constitution, brings with it the authority to conduct warrant-less surveillance for the purpose of disrupting possible terrorist attacks on the US.

That power already sounds boundless, but according to Mr Gonzalez, this sole organ has garnered even more authority under the congressional Authorisation for the use of Military Force, passed in the wake of the September 11 attacks. This resolution is invariably referred to by the ungainly acronym Aumf - the sound, perhaps, of civil liberties being exhaled by a democracy. In the language of the white paper, the potent formula of Article II plus Aumf "places the president at the zenith of his powers", giving him "all that he possesses in his own right plus all that Congress can delegate".

This somewhat daffy monarchical undertone accompanies legal reasoning that recalls Alice's conversation with the March Hare. Aumf is understood by the justice department to expressly authorise warrant-less surveillance even though the resolution that Congress passed neither envisaged nor implied anything of the kind. The president's insistence that he alone can divine the hidden meaning of legislation is of a piece with his recently-noticed practice of appending "signing statements" to bills - as in, "by signing this anti-torture bill into law, I pronounce it to signify that it has no power over me". Similarly in his white paper, Mr Bush as much as declares: "I determine what my words mean and I alone determine what yours mean, too."

Twisting vague statements into specific authorisation is a stretch. But it is in inverting specific prohibitions into blanket permission that Mr Gonzalez reaches for the genuinely Orwellian. The Federal Intelligence Surveillance Act of 1978 not only does not authorise Mr Bush's warrant-less snooping, but clearly and specifically prohibits it by prescribing the FISA court system as the "exclusive" method for authorising electronic surveillance for intelligence purposes. With a little help from the white paper, however, that protection goes "aumf" as well; Mr Gonzalez proposes that the Foreign Intelligence Surveillance Act must either be read as consistent with the position that King Zenith can wiretap whomever he wants (thus becoming meaningless), or, alternatively, be dismissed as an unconstitutional irrelevance.

Mr Bush's message to the courts, like his message to Congress, is: make way, subjects. His quiet detour around the federal judges who sit on the FISA court is entirely consistent with the White House position in the big terrorism civil liberties cases that federal judges lack jurisdiction to meddle with presidential decisions about whom to lock up and how to treat them.

The final problem with Mr Gonzalez's theories of unfettered executive authority is that they, as the lawyers say, prove too much. The Article II plus Aumf justification for warrant-less spying is essentially the same one the administration has advanced to excuse torture, ignore the Geneva convention and indefinitely hold even US citizens without a hearing, charges or trial. Torture and detention without due process are bad enough. But why does this all-purpose rationale not also extend to press censorship or arresting political opponents, were the president to deem such measures vital to the nation's security?

I do not suggest that Mr Bush intends anything of the kind - or that even a Congress as supine as the current one would remain passive if he went so far. But the president's latest assertion that he alone can safeguard our civil liberties is not just disturbing and wrong. It is downright un-American.

The writer is editor of Slate.com