Bob Barr

Law doesn’t back Bush act
December 21, 2005

" The President shall be commander in chief of the Army and Navy of the United States and when carrying out duties in such capacity shall not be subject to the laws of these United States or of this Constitution."
— Constitution of the United States, Article II, Sec. 2, as amended 2005

When President Bush explained, over the course of three days, his administration's secret interception of communications involving American citizens without court approval, he repeatedly cited three authorities for such action. One of these was Article II of our Constitution, which provides authority for the president to serve as commander in chief of the armed forces. Not relying on my memory — which has proved faulty from time to time (rarely, of course) — I reread Article II to determine if in fact there was language in it that I had missed previously, that when the president serves as commander in chief, he can order federal agencies to violate the law.

Of course, I found no such authority, because none exists. Such was never even presumed to be implied by the drafters of that magnificent document. In fact, federal courts — which over the decades have deferred greatly to the power of the president when he takes action involving national security — have never held that when a president dons the hat of commander in chief he simultaneously is immunized from having to follow the laws of the land or of the other provisions contained in the Constitution, including the Bill of Rights.

Yet, this is precisely the power the president is now claiming. Truly, it is a breathtaking assertion of presidential power. If, in fact, the country allows it to stand, then there will be virtually no limit to the areas into which it might extend. Remember, the president claims that the venue of the so-called "war" against terror is as much within our borders as outside, and its duration perpetual.

To be fair, the president did cite other authority in support of his assertion that he can order surreptitious surveillance of our citizens without following the laws that govern such actions.

First, he claims his "responsibility to protect the country" subsumes the authority to order surveillance of American citizens in contravention of the law. Of course, there is no "responsibility-to-protect-my-people" exception to the rule of law or the applicability of the Bill of Rights anywhere in the Constitution, or in any prior decision of any federal court.

The president also refers repeatedly to the resolution passed by the Congress in the first days following the attacks of Sept. 11, 2001, as establishing his power to order the surveillance now at issue. However, a reading of that resolution, whether cursory or in-depth, reveals no such authority, explicit or implied. The resolution simply authorized the president "to use all necessary and appropriate force" against those responsible for planning, carrying out or assisting in the attacks of Sept. 11. The resolution went on to provide that such "necessary and appropriate force" might be used to prevent future acts of terrorism. Importantly, the resolution provided no authority whatsoever for any actions on the part of the president beyond authorizing the use of force.

To cite this resolution as authority to override specific federal laws that prohibit the surreptitious interception of communications of American citizens represents neither sound legal argument nor honest public policy.
The strange thing about all this is there was and is no practical reason for the president to go outside the law to do what he has done. Federal law provides ample authority for the federal government to intercept communications involving citizens or others who are suspected of having terrorist ties or actions. The law also provides a robust mechanism for rapid action if circumstances warrant. Notably, however, one is required to follow the terms of the law.

The White House has gone on the offensive in response to the burgeoning National Security Agency scandal — trying to shift the focus from its actions to those involving release of the story about the surveillance.

President Bush is also splitting words a la Clinton — asserting that it is OK to surveil without court approval if you are merely "detecting" as opposed to "monitoring." Finally, the president offers in his defense the fact that a few, selected members of Congress were briefed about the program, and that the program is reviewed regularly. These are all ingenious defenses, but none would make the unlawful lawful.

By the way, was the surveillance ordered by the president unlawful? I believe it was, but don't rely on my analysis. Here is what Gen. Michael Hayden, then the head of the NSA and now the deputy director of national intelligence, told a congressional panel in April 2000 (a hearing at which I also testified), in explaining whether the government could intercept communications of an American citizen in this country: "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."

Seems pretty clear to me. And, if the president doesn't like the law, the solution should be to amend, not violate it.

Former U.S. Rep. Bob Barr is a frequent commentator on political and social issues and the chairman of the American Conservative Union Foundation's 21st Century Center for Privacy and Freedom