"Do we really want presidents who sign laws that they think are unconstitutional?"
It was a debate over the Bush administration's conduct in the war on terrorism. The discussion had turned to the president's heavy reliance on "signing statements" written interpretations by President Bush of bills he has signed into law, frequently including the claim that one or more sections of the new law are unconstitutional and can therefore be ignored. One of the speakers, a critic of the administration's aggressive efforts since Sept. 11, 2001, to expand presidential power, was scornful.
"This notion that presidents in our system of government don't have to carry out laws authorized by Congress is absolutely preposterous," the speaker said. "If that were the case if Congress's laws are merely advisory why would you need a veto?" A president who disapproves of a bill should say so in a veto message that's why the Constitution gives him veto power in the first place. Bush's hundreds of signing statements are an "open power grab" that Americans should find intolerable. "We ought to be adamantly opposed to any claim that the president doesn't have to abide by laws that Congress has passed and he has signed."
That may sound like Senator Hillary Clinton, who denounces the Bush administration's "concerted effort . . . to create a more powerful executive at the expense of both branches of government and of the American people" and promises to sharply roll back the use of signing statements if she becomes president.
But the speaker wasn't Clinton, nor any other liberal or Democrat. It was former Georgia congressman Bob Barr, a staunch conservative best known for his leading role in the 1999 impeachment of Bill Clinton. An outspoken defender of privacy rights and other civil liberties, Barr has long decried what he calls the "frightening erosion" of constitutional protections under Bush. At a forum hosted by the Boston chapter of the Federalist Society, he was debating another staunch conservative: John Yoo, a law professor at the University of California at Berkeley, and a former Justice Department official whose thinking strongly influenced the administration's claims of presidential power after Sept. 11.
In a vivid illustration of the clash of ideas roiling the right these days, the two had come to tangle over the Terrorist Surveillance Program, the National Security Agency's warrantless interception of phone calls and e-mails into and out of the United States as part of the effort to defeat Al-Qaeda. Yoo acknowledged that the eavesdropping seems inconsistent with the federal statute that ordinarily requires a warrant from the Foreign Intelligence Surveillance Court before such domestic spying can occur.
But these aren't ordinary times, Yoo emphasized. The purpose of the Terrorist Surveillance Program is "to protect national security in wartime and historically warrants haven't been required to conduct electronic surveillance of the enemy during wartime."
Moreover, a president is not obliged to blindly obey every act of Congress especially not one that impinges on his constitutional authority as commander-in-chief.
Covert intelligence falls well within that authority, he argued, and presidents have long ordered electronic surveillance without regard to congressional or judicial strictures. Long before Pearl Harbor, for example, President Franklin Roosevelt "ordered the electronic surveillance of every communication in the country, regardless of whether it was international or not, so that the FBI could try to find Nazi saboteurs." FDR's order went far beyond anything Bush has done, and did so "even though a Supreme Court decision and a federal statute on the books at the time prohibited electronic surveillance of any kind without a judicial warrant." In fact, Roosevelt's wiretapping continued even after House and Senate leaders made it clear that Congress would not pass legislation to authorize it.
Barr was having none of it. Yoo's argument, he said, amounts to a claim that the three branches of the federal government are equal, but one is more equal than others and that way lies the loss of freedom. "Do we want to live in a society where we know that any time we pick up the phone and call somebody overseas . . . the government may be listening in? That's the fundamental problem what kind of society do we want to live in?"
No, said Yoo the fundamental dynamic is the tradeoff made necessary by the terrorists' deadly war against us. On the one hand, "yes, you might lose your expectation of privacy in international communications," he said. "But that's only one side. The other side is: Would you be willing to trade some of that loss of privacy to be better protected from terrorist attacks?"
The bottom line, of course, is that there is no bottom line. Disputes over the proper scope of federal power, and the deference to which each branch is entitled, and the balance between national security and civil liberty, have been a feature of American life from the start. The struggle for political equilibrium is built into our democratic architecture.
These debates began long before Bush arrived; they'll continue after he leaves. We should welcome them as signs not just of factiousness, but of strength: Americans argue about fundamental freedoms because Americans are fundamentally free.