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Jewish World Review Jan. 9, 2006/ 9 Teves, 5766

Nat Hentoff

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‘We the People’ in the dark | In the intensifying debate on the National Security Agency's secret, warrantless eavesdropping on telephone calls and e-mails in and out of the United States — which is now seen to be a vast data-mining operation — a crucial question was asked President Bush at a Dec. 19 press conference by Washington Post reporter Peter Baker: "If the global war on terror is going to last for decades, as has been forecast, does that mean that we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive (branch) in American society?"

The president had no direct answer, but he did say it was "shameful" of The New York Times to break this story. However, the more we know about the porous nature of the president's defense of his authorization of the NSA's bypassing the Foreign Intelligence Surveillance Act (FISA) Court, it's becoming clearer that The New York Times should not have held the story for a year — at the Bush administration's request.

As the business publication Barron's Financial Weekly put it on its Dec. 26 front page: "The pursuit of terrorism does not authorize the president to make up new laws."

And in the Dec. 21 Minneapolis Star Tribune, Bruce Schneier — chief technology officer of Counterpane Internet Security — cut to the core of why disclosure has led to the resignation, in protest, of Federal District Judge James Robertson, a member of the FISA Court, and why others on that secret court are concerned about the president's action.

"This is not a partisan issue between Democrats and Republicans," Schneier writes, "it's a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don't want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton."

The reason, as James Madison foretold, that a free press is crucial to keeping us free is that once a story of this magnitude breaks, we keep learning more about what we need to know as a free people. For example, the president's credibility has hardly been enhanced when he keeps maintaining that, in this war on terror, there is no time to wait for a warrant from the FISA Court in an emergency.

But the law says that in an emergency the government can engage in surveillance right away — and has 72 hours to go back to FISA Court for a warrant.

There is no question that President Bush is dedicated to winning this war on terror, and that one of the most glorious days in world history was the voting by millions of Iraqis — very literally risking their own lives and safety — for democracy. But what's always on my mind about this country — even as George W. Bush continues to believe that "inherent powers" enable him to become the sole law of the land — is what Federal Circuit Court Judge Damon Keith said in August 2000, when Attorney General John Ashcroft closed all deportation hearings to the press and public: "Democracy dies behind closed doors."

In that front-page Dec. 26 article in Barron's ("Unwarranted Executive Powers"), Thomas G. Donlan makes the critical point that Article II, Section 3 of the Constitution requires that the president "shall take Care that the Laws be faithfully executed." But then he goes on, as others are, to speculate about impeachment of the president.

To further divide this already politically fractured country during the long, fiercely bitter process of bringing — and deciding on — articles of impeachment, would gladden the enemy and disconcert (to say the least) our allies.

But Donlan does make sense when he says that although the president has weakened himself by letting loose the NSA, "some ancillary responsibility, however, must be attached to those (very few) members of the House and Senate who were informed, inadequately, about the wiretapping and did nothing to regulate it" — and did not tell We the People, that, in this regard, the Constitution's separation of powers was being suspended.

The results of the president's ignorance of the limits of his constitutional powers as commander in chief in this war have already encouraged defense attorneys in terrorism prosecutions to use NSA's lawlessness as a weapon in court. As was written in the Dec. 28 New York Times:

"Some Justice Department prosecutors ... were concerned that the agency's wiretaps without warrants could create problems for the department in terrorism prosecutions both past and future."

At least this furor shows that "the rule of law" is not just a slogan in this country. It has sharp teeth, and Bush is feeling its bite.

As the world looks on, so are we.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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