President Bush defended his actions in his December 17th radio address. “I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I’m also using constitutional authority vested in me as Commander-in-Chief.” He’s wrong. The President’s actions violate the law in many ways and the consequences could be dire. For starters, through ordering the National Security Agency to spy on American citizens without FISA warrants–despite the ease of obtaining them–President Bush violated the Foreign Intelligence Surveillance Act. This is a felony punishable by five years in prison. It is also an impeachable offence.
By law and through executive order, intelligence has become part of the executive branch’s responsibilities, but the Constitution never mentions conducting espionage against American citizens without due process as part of the responsibilities of the Commander-in-Chief. Furthermore, the powers of Congress, as listed in the Constitution, also do not provide for spying on American citizens without due process of law. In fact, several agencies that we take for granted, such as the NSA and CIA, have a rather tenuous Constitutional basis. As for the Joint Authorization for Use of Military Force giving Bush the right to break the laws of this nation, this claim is also false. The Authorization states, “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Its language openly violates the long-established Constitutional limits on executive power; the founding document itself was intended by the Framers to prevent the government to award itself such vague blanket powers.
Legal precedent is not on Bush’s side in this case. David G. Savage and Bob Drogin of the Los Angeles Times point out that “the president’s lawyers have maintained that the commander in chief has the ‘inherent’ authority to act in the interest of national security, even if he overrides the law. But the Supreme Court did not accept that claim when it was tested in the past. In 1972, the justices unanimously rejected President Nixon’s contention that he had the power to order wiretapping without a warrant to protect national security.”