Barron's Uses the "I" Word

That bastion of socialist thought, Barron's Online, has published an editorial strongly critical of Pres. Bush's post-9/11 decision to authorize wiretapping without a search warrant -- and adds that impeachment proceedings might be appropriate. Take special note of the last paragraph in my paste. That is the crux of the matter.

Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn't last four years.

In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.

"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that Constitutional authority." Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.