Whatever else he may or may not be, Bush is strategic: what better vehicle for delivering himself sweeping, unchecked “inherent” presidential power than through an appeal to national security in an area — electronic surveillance — where public-opinion polls indicate that Americans are most willing to sacrifice civil liberties in exchange for perceived security? The dirty little details of surveillance law are sufficiently esoteric and legalistic that the average citizen remains largely in the dark, distracted by siren calls of security. After all, who isn’t in favor of protecting America when all that is at stake is privacy? Why worry about a little wiretapping when you know that you are doing nothing wrong?
But granting Bush — or any president — sweeping, unchecked power in direct violation of a statute would open a Pandora’s box of imperial possibilities. There are other areas where the president has run up against either a congressional statute (consider the bipartisan anti-torture legislation recently enacted at the behest of Arizona senator John McCain) or an attempt by the Supreme Court to limit presidential power (the court’s decision in the summer of 2004 requiring hearings for those held as “enemy combatants” at the US military base at Guantánamo Bay, Cuba). That’s why Bush is reaching beyond Congress and the courts in an effort to convince the American people that he needs special power to protect them.
If Bush wins this round, the next step will almost certainly be a claim to presidential power to engage in torture or executive detention of citizens with neither charge nor trial nor time limit. Precedents sometimes have unwelcome consequences. But in this case, the consequences are not wholly unpredictable, and we won’t be able to say we weren’t warned. Unless this unprecedented claim of unfettered presidential power to eavesdrop is stopped in its tracks, there will be no logical stopping point for taking a principled stand to protect our most essential liberties in the future.
Harvey Silverglate is a lawyer and frequent “Freedom Watch” contributor.
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