Bob Barr

Privacy ... Now the Guard?
The Atlanta Journal-Constitution
May 2, 2007

It is axiomatic that no matter how much power government has, it always wants more. While the administration of President Bush is not unique in this regard, it has taken the truism to new heights; and two recent legislative events illustrate just how insatiable is this administration's appetite for power.

In late 2005, the Bush administration was caught with its hand in the cookie jar when news accounts revealed the president had, since shortly after the Sept. 11 terrorist attacks, been ordering the National Security Agency to conduct warrantless eavesdropping on American citizens in the United States without court order or supervision. This program was inaccurately dubbed the Terrorist Surveillance Program to divert attention from the fact it was targeting American citizens with no reason to believe they were engaged in any actions involving terrorism. It was conducted in violation of express statutory requirements to the contrary.

Until it relinquished power to the Democrat party this January, the Republican-controlled Congress unashamedly refused to conduct serious inquiry into the obviously improper NSA surveillance program. In the wake of the changeover in the leadership of both houses of the Congress, however, that body is beginning to stir from its six-year hibernation and at least ask questions.

Rather than admit any wrongdoing, and concluding the best defense is a good offense, the Bush administration recently submitted legislation to the Congress that—if enacted—would not only retroactively sanction the heretofore improper program, but greatly expand it.

If the administration has its way, in the future the federal government would be lawfully empowered to surreptitiously surveil virtually every communication—phone call, e-mail, or whatever—coming into or going out of the United States. One can only hope that a sufficient number of Democrats and Republicans in Congress will see the devastating effect of such a program on privacy and other civil liberties—to say nothing of the impact on the integrity of the international communications system—and deny such a breathtaking expansion of surveillance power to this and future presidents. The second example of power-grabbing by the administration is even more far reaching and troubling.

We all know that bad facts can result in bad law. In no disaster in modern times was this more apparent than in the response to Hurricane Katrina. The combination of nature's fury coupled with systemic corruption in New Orleans and incompetence of the highest order in Washington, resulted in losses to taxpayers all across America in the tens of billions of dollars and still mounting. The Bush administration response, in addition to throwing untold sums of taxpayer dollars at the hurricane's aftermath, was to promise to do better the next time if only the Congress would grant it more power.

The vehicle chosen for this purpose last year by the president was the always-popular military authorization bill shepherded by the administration's go-to military guys in the Congress. They crafted a provision that would amend the little-used, 200-year-old "Insurrection Act," so as to render it not a limitation on presidential power to use the National Guard and our armed services in domestic matters, but rather a significant expansion of a president's power to deploy and control the National Guard and the armed services domestically.

Notwithstanding opposition to this federal power grab last year by all 50
governors—including Georgia's Sonny Perdue—the Insurrection Act was renamed and amended so as to allow a president to seize control of the Guard and order it and the remaining military services into domestic "emergencies" that are only vaguely identified in the new law. Thankfully, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), joined by U.S. Sen. Kit Bond (R-Mo.), is moving to undo this unprecedented power grab.

In the House, the effort to repeal this particularly abhorrent part of the 2006 "John Warner National Defense Authorization Act" is being spearheaded by U.S. Rep. Tom Davis (R-Va.). So far, the only Georgian in either House possessed of sufficient regard for principles of federalism to join the effort to roll back last year's legislation is Democratic U.S. Rep. Hank Johnson, who represents Georgia's 4th Congressional District.

It is hoped that they will be successful in convincing a majority of their colleagues to support the legislation by the time it comes to a vote. Also, this needs to occur before the Bush administration decides there exists an "emergency" sufficient to provide the basis for it to invoke its newly enhanced powers.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.