Justifications More Troubling Than Spying Itself

The Bush administration has advanced several lines of legal and political defense after having been caught spying on American citizens within the United States without warrants. With its defense, the administration has revealed a mindset more disturbing than the spying itself.

The arguments President Bush ticked off in his news conference this week reduce to this: Since Sept. 11, he has had authority to do anything that can be characterized as fighting terrorism. This authority supersedes common readings of the Constitution, the law and the customs of governance in America.

That is an assertion far more troubling than the news that the National Security Agency, on at least 30 occasions, spied on Americans in America without a warrant.

Based on what we know now, the actual surveillance may have been quite limited. The appropriate court may well have sanctioned it, had that court been consulted. We cannot know for certain because the administration will not discuss the specific cases, citing the need for secrecy in fighting terrorists.

Instead, the administration relies on its own notions of its legal authority (courtesy of the White House counsel and the attorney general) and invokes its responsibility for protecting American lives. The administration line is this: The legal points are arguable, the Congress has been told, and the court of public opinion will vindicate the president.

This is what becomes genuinely disturbing: This blanket assertion of authority has no discernible limits. Accepting it confers on this president — or any president — the powers of autocracy.

What we have here is a variant on the old Washington maxim about the cover-up being worse than the crime. President Clinton was impeached not for his dalliance with an intern but for his lies to a grand jury about it. President Nixon resigned not because campaign aides plotted a burglary for political espionage but because the president himself directed an all-levels effort to conceal it.

Of course, in this case, there's no cover-up (at least not since The New York Times broke the story and the president confirmed it). Now the cover-up gives way to a denial that there's been any wrongdoing in the first place. The defense is a shoulder shrug, a vague statement of reassurance and an appeal to popular opinion.

The president likes to tell the story of his first visit to the ruins of the World Trade Center in September 2001, when he heard a rescue worker shouting to him: "Whatever it takes…"

It was a sentence that did not need to be finished, and that sentiment remains strong with much of the public. So long as the president can invoke 9-11, as he has been doing almost daily this month, he can touch the nerve that responds.

And as the president's job approval rating rises in the polls, he will doubtless feel he has his vindication.

In classic fashion, the president has cast the gauntlet before the other branches of government. Will they pick it up?

Some believe the president's actions and legal interpretations are headed for the Supreme Court. But civil liberties groups may have trouble getting standing for such a challenge, which may require someone to come forward as an aggrieved party who had been spied upon. Who will do this?

As for Capitol Hill, both Clinton and Nixon fell afoul of a congressional investigation process controlled by the other party. As the GOP now holds both chambers, President Bush does not have this problem.

To be sure, some Democrats in Congress will call for impeachment, causing other Democrats to distance themselves from that call. Republicans will circle the wagons and defend what many may consider indefensible. The usual partisan lines will reappear.

The issue, however, will not disappear. It will become a topic in the

Senate hearings on the Supreme Court nomination of Samuel Alito, scheduled to begin Jan. 9. It may also be the subject of separate hearings, if Senate Judiciary Chairman Arlen Specter follows through on his initial impulse.

There are other key members of Congress who know what's going on and will want to know more. The president blithely says he consulted Congress. Talking in secret to a handful of members on the intelligence committees may fit his definition of consultation, but it's not likely to satisfy those who were not consulted. In any event, it is not the approval-seeking process envisioned by the phrase "checks and balances."

In addition, the media are motivated (and obligated) to pursue the matter, and will do so in the weeks and months ahead. They will ask why it was necessary in these 30 cases to bypass the special court set up to issue surveillance warrants under the Foreign Intelligence Surveillance Act. The president says the NSA did not have time to get the warrants in this new era of instant communications. Then why not get the warrants retroactively, as the law provides? Is it possible for any procedure to be faster than that?

The president also says he has the approval of Congress under a blanket authority granted to him for the pursuit of the perpetrators of the terror attacks of Sept. 11, 2001. No such authority is visible in the legislation itself, so is someone perceiving emanations and penumbras here?

All this will force a certain measure of reconsideration on the part of those whose first instinct is to trust the president.

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