To spread democracy abroad, respect the law at home
WASHINGTON — When President Lyndon Johnson left the White House in 1969, he was so discredited that people said it would take the rest of the century to get the powers of the president back to where they were when he took office. What ruined Johnson was the Vietnam War, but more specifically the Gulf of Tonkin resolution. This was the response to what he said were North Vietnamese attacks on American destroyers in the Gulf of Tonkin in August 1964. At Johnson's request, a compliant Congress passed a resolution providing in part:
"The Congress approves and supports the determination of the president, as commander in chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression."
Later, it developed that one of the alleged attacks in the Tonkin Gulf did not happen and the other was dubious. Congress repealed the resolution.
George W. Bush entered the White House in 2001 with an expansive view of the presidential power that Johnson had lost. The most important manifestation of this has now come with his assertion of the power to order warrantless intercepts of the communications of people in the United States suspected of connections with terrorist groups.
As sources for this authority, President Bush relies on: (1) a nebulous concept of inherent power, and (2) a resolution passed by Congress in October 2001. This resolution recognizes the president's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." It also authorizes the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."
Sounds like the Gulf of Tonkin resolution, doesn't it? Johnson used that resolution to justify the escalation of the war in Vietnam and Mr. Bush used the 2001 resolution to authorize the invasion of Iraq. There were dubious attacks in the Tonkin Gulf and there were no weapons of mass destruction in Iraq. There is another problem with the 2001 resolution. If it authorizes what the president says it does, it violates the Fourth Amendment to the Constitution:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This allows for wiretapping, but only with a warrant issued by a court for probable cause and "particularly describing the place to be searched and the persons or things to be seized."
The National Security Agency has been wiretapping worldwide since the 1950s, but not international calls that originate in the United States. What the president has done is to authorize the interception of such calls where one party is known or suspected to be involved in terrorist activities.
And the president has also exempted the NSA from the requirement for a warrant. He argues that some cases are so urgent that time cannot be lost in the process of getting a warrant. However, a 1978 law authorizes taps for 72 hours without a warrant. This is plenty of time to get one if there is in fact, as the Fourth Amendment says, "probable cause." The president may want to bypass the court out of fear that a judge would deny the warrant. He wants to use suspicion instead of probable cause.
The White House would like to frame the debate as being whether we keep track of terrorists - where they are, what they are doing, what they are planning to do. That focus would enable Bush and his allies to accuse critics of being soft on terrorism if not sympathetic to it. This is a straw man, just as the accusation of being soft on communism was a straw man during the cold war.
Nobody has argued that we should not keep track of terrorists, whether they are in the United States or somewhere else. The argument is whether we should do it according to a process that has been in the Constitution since 1791. It is a way to bring the judicial branch into the balance of powers.
One of the attributes of democracy, which we are trying to spread in Iraq and elsewhere, is respect for law. If we ignore this now, we will become more like the people we are fighting. It will be a poor example for others, not to mention what it will do to our own society.
• Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.