Do you have a sense that the United States passed a milestone this Christmas season? The president admitted — no, boasted — that government agents at his behest had been eavesdropping on presumably innocent American citizens, perhaps thousands of them, for four years without obtaining a warrant, in flagrant violation of yet another article of the Bill of Rights and of an act of Congress.
No matter, the country decided. President Bush said he was doing it and would keep doing it to protect us all from Osama bin Laden and his fanatical followers. It is necessary to keep us safe, the president said.
“Necessity is the plea for every infringement of human freedom,” William Pitt the younger told the House of Commons in 1783. “It is the argument of tyrants; it is the creed of slaves.” Pitt would come to know that as well as Bush should know it. Given power himself in tense times, he moved to suspend habeas corpus and silence government critics through a sedition act.
When Richard Nixon subverted the Constitution and acts of Congress, he had to resign ahead of certain impeachment and conviction.
When President Reagan’s office was caught secretly trading weapons to Iran and fanning war in Central America in violation of laws passed by Congress, he saved himself by asserting that his national security staff must have been operating behind his back. An indulgent Congress and a Republican independent counsel decided not to look behind his words. But at least there was sufficient outrage that the president’s top national security men were convicted of crimes.
But there will be no accountability for President Bush, only a respectful hearing by the Senate Judiciary Committee. There will be warnings about emboldening terrorists by criticizing the president or tying his hands.
Even that is a little more than the president expected. He has waived the Bill of Rights, federal statutes and international treaty obligations in the name of necessity to keep the country safe from terrorists and no congressional committee even asked for so much as an explanation. To keep us safe, prisoners are tortured, killed, disappear to secret gulags and held for years without trials, lawyers or notification of their kin.
History will note the curious and incomprehensible underpinnings for the Bush administration’s subverting the Constitution. Bush and Vice President Cheney got their clearance from an obscure Korean-born lawyer named John Yoo, who by coincidence had appeared in the right job in the Justice Department to advise the administration on national security law in September 2001.
In a series of legal memoranda starting two weeks after the Sept. 11 attacks, Yoo wrote that when the authors of the Constitution made the president the commander in chief they intended to give him unchecked power to do anything he wanted if it was intended to protect the country in wartime. Since the war on terrorism knew no boundaries it was a new kind of war and the conventional restrictions on the president’s war-making power, like the Geneva Convention’s ban on torture and our own laws, could be waived. It was Yoo’s memos, too, that provided Bush the basis for saying that the Constitution empowered him to have government agents eavesdrop on American citizens in search of terrorism connections.
Yoo’s was a bizarre reading of original intent. The accepted scholarship has always been that the founders, reacting to King George III’s tyranny, intended to create a weak executive, not an unchecked one.
Cheney was proud of the role. His major goal, he said, has been to restore the power of the president, which had been diminished since Watergate.
It was left to former Secretary of State Colin Powell to measure just where the country stands. The president, Powell said, could have easily followed the law and run the eavesdropping by the secret federal court that grants wiretap warrants for national security surveillance because it is a routine process and can even be done within three days after the surveillance is undertaken. But the president decided he didn’t want the government to bother, Powell said, and he guessed that was all right.
The reason the president did not want to bother, it is becoming obvious, is that it was going to be undertaken on a massive scale.
None of this would have been possible in the United States were it not for the hysteria over terrorism. History will look with some bemusement upon an era when the nation’s leaders convinced the country that a turbaned fanatic dwelling in the caves of Afghanistan and Pakistan, with a few hundred followers around the world (well, maybe tens of thousands since Bush gave up on him and put the troops and intelligence into the occupation of Iraq), was a greater threat to the United States and the world than Nazi Germany and its allies or the nuclear-armed Soviet empire and Communist China. We will be lucky if history also records that the encroachment on civil liberties of Americans was only momentary.