Patricia Koyce Wanniski's Letter
Second Term Scandal Sets In
To: President George W. Bush
From: Patricia Koyce Wanniski
Re: The "I" Word
It seems as though all second-term presidents for the last 40 years or so have had to contend with a second term scandal. Your administration has been no exception. 'Snoopgate,' as the domestic spying revelations have now been dubbed, is gathering steam. Earlier today, two lawsuits were filed in Federal District Court questioning the legality of your secret executive order giving the National Security Agency the authority to bypass the usual channels in obtaining surveillance wiretaps. Yesterday, your former opponent in the 2000 presidential race, Al Gore, gave a speech damming the practice bypassing the Foreign Intelligence Surveillance Act. Gore notes, accurately,
A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.
An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
As I wrote on December 21, when Senator Arlen Specter announced he would be holding Judiciary Committee hearings on the issue, the issue wasn't so much the idea of domestic spying, but avoiding the checks and balances of the court system to do it. I'm still scratching my head trying understand your rationale. As Jonathan Alter points out, why didn't you simply ask Congress to amend FISA, if you felt the tools to catch terrorists weren't adequate? And, as a team of reporters announced in The New York Times this morning, the wiretaps apparently have not been an effective tool in the war on terror. So what good is all this snooping, anyhow?
Maybe you don't feel it in the Whitehouse or at your ranch in Crawford, but some Americans are beginning to feel threatened by what they see as an increasingly imperial president, not bound by the law or constitution. Now with this perceived abuse of power of NSA snooping, there are some serious constitutional questions being raised in surprising quarters. This weekend Senator Specter broached the issued of possible impeachment, albeit in a theoretical context, in a reply to a question from George Stephanopoulous on Sunday's "This Week."
Stephanopoulous: There was a lot of talk about that at the Alito hearings, and listening closely to you I certainly seem to take away that you believe the president does not have the right, does not have the inherent power under the Constitution to circumvent a constitutional law and as far as you are concerned, the FISA law is constitutional, isn't it?
Specter: Well, I started off by saying that he didn't have the authority under the resolution authorizing the use of force. The president has to follow the Constitution. Where you have a law which is constitutional, like Foreign Intelligence Surveillance Act, there still may be collateral different powers in the president under wartime circumstances.
That's a very knotty question that I'm not prepared to answer on a Sunday soundbite. But I do believe that it ought to be thoroughly examined. And when we were on the Patriot Act and found the disclosure of the surveillance, I immediately said the Judiciary Committee would hold hearings, and I talked to the attorney general, and we're going to explore it in depth, George. You can count on it.
Stephanopoulous: You know, if the president did break or circumvent the law, what's the remedy?
Specter: Well, the remedy could be a variety of things. A president – and I'm not suggesting remotely that there's any basis, but you're asking, really, theory, what's the remedy? Impeachment is a remedy. After impeachment, you could have a criminal prosecution, but the principal remedy, George, under our society is to pay a political price.
Once a member of your own party begins using the "I" word, even hypothetically, you've got a problem you can't ignore or joke away. It won't matter that your motive was to protect the American people, although I believe it was. You should bow to the democratic impulse and retreat on this issue, before your presidency is crippled any further. Anyhow, you'll still have the ability to eavesdrop on American citizenry under FISA.
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(Note to John L: I have finished with two lessons, and I MUST keep going with these things! Fascinating Site!)