There are few times as deeply etched in my memory as July 24, 1974, when the Supreme Court unanimously ruled that President Richard Nixon had to surrender the tapes subpoenaed by the Watergate special prosecutor. Those tapes offered indisputable proof that Nixon had played a key role in covering up the Watergate break-in and other illegal activities.
I remember thinking, What would Nixon do? Surrendering the tapes would mean political ruin and personal disgrace. Would he obey the court or call out the National Guard? Mercifully, eight hours after the court decision, the White House announced it would comply.
I felt that same chill down my spine listening to President George W. Bush on Dec. 17, 2005, as he attempted to explain the revelations in The New York Times concerning him ordering the National Security Agency to engage in extensive eavesdropping on U.S. citizens without the court order required by the Foreign Intelligence and Surveillance Act (FISA) of 1978. Not even mentioning FISA, the president stated proudly, “I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.”
By what authority did Bush ignore the FISA requirement? Bush claimed he was using “...authority vested in me by Congress, including the Joint Authorization for Use of Military Force...[and] constitutional authority vested in me as commander-in-chief.” Most legal scholars agree that these arguments are quite a stretch. A group of distinguished lawyers, several of whom worked in senior positions in administrations of both parties, sent members of Congress an extensive legal analysis of Bush’s domestic spying, concluding, “The program appears on its face to violate existing law.”
The most interesting and urgent question is why the president decided to circumvent FISA. The need for “speed and agility”? That dog won’t hunt. In drafting FISA, legislators were mindful that the government would need the kind of flexibility that would avoid delays. That’s why the law allows the government to initiate eavesdropping as soon as it wishes, the only requirement being to follow up with the paperwork three days later to apply for a court order that is virtually automatic (only a handful of some 19,000 applications have been denied). And for eavesdropping that lasts less than 72 hours, there is no requirement at all to seek a court order. Finally, if—despite FISA’s flexibility—the Bush administration needed changes in the law, why did it not send its lawyers to the Hill? Any reasonable changes would have received swift approval in the immediate post-Sept. 11 atmosphere. The only conclusion I can draw is that the eavesdropping program is so sweeping and intrusive that the White House decided, first, it was unlikely to win congressional support, and second, it would be risky to invite any congressional scrutiny.
The die is now cast. The president has placed himself above the law, just as he did in authorizing torture. On the eavesdropping issue, the case is clear cut. The president has thrown down the gauntlet, saying, in effect: I did it; I continue to do it; I dare you to try to stop me; I don’t care what the law says. The founders wrote into the Constitution an orderly process to deal with a president or other high official who starts acting as though he is above the law—a political process that obviates the need for an insurrection or coup. It is called impeachment. John Dean, Nixon’s White House counsel, has pointed out that this marks the first time a president has admitted to an impeachable offense (although the composition of the court and Congress—and thus the political situation—is quite different today than in the Nixon era). In the ruling on the Nixon tapes, Chief Justice Warren Burger reaffirmed earlier court decisions that “no person, not even the president of the United States, is above the law.” In his words and in his actions, Bush has challenged that principle. The stakes could not be higher.
Ray McGovern, a 27-year veteran of the CIA’s analysis division, is now on the steering group of Veteran Intelligence Professionals for Sanity (VIPS).