Monday, January 30

Mikva on wiretapping

Democrat elder statesman Judge Mikva offers a robust criticism of Bush's wiretapping in today's Boston Globe. You can read it for yourself, but I would like to draw your attention to a crucial admission towards the end. After castigating the administration for claiming that "[a] president need not obey some laws because the president's 'inherent' powers trump the Congress" and that "Congress cannot encroach on a president's inherent constitutional authority in matters of national security," he writes:

When Congress has no constitutional authority, statutes limiting the president's inherent authority may have less or no force. If Congress enacted a law requiring the president to conduct military operations in a particular manner, a president might correctly disregard that law.

I'm no military expert, but enemy surveillance and intelligence gathering sound like an integral part of "conduct[ing] military operations" to me. For all the hullabaloo over the wiretapping issue, you would think that Bush was resorting to the presidential tactics of the '60s, when the Kennedy, Johnson, and Nixon administrations routinely tapped the 'phones of Americans for no better reason than to keep tabs on political enemies or possible troublemakers. Attorney General Bobby Kennedy even tapped Martin Luther King, Jr.'s 'phone, for goodness sakes. The interception of communications between known or reasonably suspected foreign terrorists and telephones within the United States (which may be owned or used by U.S. or non-U.S. persons) couldn't be farther from these actions.

Not to mention the much more intrusive and sweeping executive authority claimed by and acted upon by Presidents Adams (Alien and Sedition Acts), Lincoln (suspension of habeas corpus), Wilson (actions during WWI, the Red Scare and Palmer Raids), Roosevelt (internment of Japanese-Americans), Kennedy (MLK bugging, among thousands of others), and Nixon (COINTELPRO). Considering that he has gone out of his way to obtain legal advice, to consult with officials within his administration, and to inform Congressional leaders of his exercise of the executive war-making power, in the context of presidential history, Bush's supposed lawlessness appears pretty tame. If this is an "imperial presidency," as many of Bush's critics like to say, one marvels at how the nation passed unscathed through what must be considered the far more vicious dictatorships of the 1920s, 1940s, 1960s, or 1970s. Just maybe, America will scrape by again.