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Restoring Constitutional Government

By Ivan Eland
February 14, 2006

Editor's Note: The political discourse of the United States is now dominated by tough-talkin' rhetoric that doesn't much care for those finicky rules like constitutional rights and international law. Many of America's top politicians and commentators seem to believe that those "technicalities" are for weaklings.

When asked whether some action violates international law, President Bush feigns concern and quips, "International law? I better call my lawyer." When treatment of U.S. detainees has all the earmarks of torture, Bush simply says it's not torture, and his spokesmen wonder why anyone would care so much about the treatment of "bad guys."

When it comes to U.S. law, the Constitution and the Bill of Rights, Bush usually just insists he's in compliance no matter what the evidence is that he isn't. Then, Rush Limbaugh, Sean Hannity, the Wall Street Journal's editorial page, Rev. Sun Myung Moon's Washington Times and scores of commentators and pundits praise his legal sophistry -- acting like the fabled courtiers admiring the Emperor's New Clothes.

This political dynamic -- a mix of know-nothing-ism and jingoism -- has propelled the United States into a dangerous flirtation with authoritarianism over republicanism, with a cult of personality built around Bush instead of the rule of law. This trend and the lack of a serious response from Democrats are addressed in this guest essay by Ivan Eland:

It took only minor concessions by the Bush administration to convince enough Democrats to support the renewal of the USA PATRIOT Act and end a Senate filibuster blocking the bill’s passage. In fact on both the renewal of the PATRIOT Act and warrantless domestic spying by the National Security Agency (NSA), the Democrats have recently caved in or are signaling that they soon will.

In contrast, only a more militant approach—the repeal of the PATRIOT Act, the ending of warrantless domestic spying, and the opening of the process by which national security warrants are approved—will adequately preserve the liberties that the nation’s founders enshrined in the Constitution’s Bill of Rights.

The concessions the Democrats agreed to include a change in the National Security Letters, a form of secret subpoena, which could not now be used on libraries (but still can be used everywhere else). Also, recipients of “Section 215” subpoenas, issued by the secret Foreign Intelligence Surveillance Act (FISA) Court, could now eventually challenge the prohibition on telling anyone they received one.

But the vast majority of the PATRIOT Act’s draconian provisions increasing the authority of federal authorities to tap phones, obtain personal records, and search homes will probably be renewed.

The PATRIOT Act is unlikely to prevent another terrorist attack. Even before 9/11, law enforcement authorities had enough investigative powers to battle terrorism without it. In 1996, the Clinton administration handed law enforcement agencies increased authority via the Anti-Terrorism and Effective Death Penalty Act, but this did not prevent 9/11.

The failure to detect and prevent the 9/11 attacks was due to lack of coordination within and among federal law enforcement and intelligence agencies, not because of a lack of snooping authority. Congress should ask whether rewarding such failure with increased authority and funding is the best way to fight terrorism. But it is an election year and politicians—especially some Democrats—need to show that they are taking tough actions to “protect” American citizens from the terrorist menace.

This inclination was on display recently on an episode of “Meet the Press.” Jane Harman, the ranking Democrat on the House Intelligence Committee, and Tom Daschle, former Senate Majority Leader and possible future candidate for the Democratic presidential nomination, both agreed that the warrantless NSA domestic spying program should continue but implied that the law should be changed so that President Bush was no longer in violation of it.

Yet the Fourth Amendment to the Constitution implies that a warrant is needed for any search or eavesdropping and says that there needs to be “probable cause” that a crime has been committed before a court can issue one. The Constitution says nothing about suspending this provision in wartime.

The Fourth Amendment’s requirement, in both wartime and peacetime, for a court-ordered warrant belies the White House’s claim that in wartime, the president’s authority is supreme. Even President George W. Bush, on April 20, 2004, obviously hiding his warrantless domestic spying program, said that nothing had changed and that a wiretap still required a court order.

The claim that other presidents, including Franklin Roosevelt, took actions that implied such broad presidential authority in wartime does not trump the founders’ clear intent to constrain the nation’s leader from taking the nation to war unilaterally.

As for the congressional resolution authorizing the use of force against global terrorists implying the authority for warrantless domestic spying, even conservative Sen. Lindsay Graham, R-S.C., doesn’t buy this administration red herring. Also, Daschle noted on “Meet the Press” that Congress narrowed the president’s authority in that resolution and omitted the words “in the United States” from his authority to wage war, confining it to overseas actions.

The administration seems to think that it needs to get a warrant from the secret FISA Court when snooping into communications between two domestic parties but not when a domestic party is communicating with a foreign party. Why does a person in the United States talking to or e-mailing a foreign person have fewer rights than a person communicating with another person within the nation’s boundaries?

The two Democrats on the show, along with two Republican opponents, spent most of the time deploring the ill effects on efforts to monitor terrorists of the leak disclosing the NSA surveillance program and arguing about whether the Democrats should have objected sooner to the program. But it’s not as if terrorists didn’t know that the U. S. Government was monitoring their communications. And who cares if the Democrats should have objected earlier (they probably should have)? The issue is whether warrantless domestic spying should be stopped. It should.

And why stop there? That we depend on a secret court to uphold peoples’ rights shows the sorry state of civil liberties in this country. Secret courts are for Nazi Germany and the Soviet Union, not the U.S. of A.

Why not declassify the FISA court? Regular courts handle espionage and organized crime cases by protecting witnesses. The same could be done for surveillance requests.

The court’s lack of public accountability has allowed it to become a virtual rubber stamp for whatever administration is in power. Only a handful of the tens of thousands of secret surveillance requests have been denied. This lack of meaningful oversight erodes the checks and balances of our multi-branch government, as created by the Constitution.

In the current environment of “creeping authoritarianism,” radical measures—such as repeal of the PATRIOT Act, the ending of warrantless domestic spying, and the declassification of the FISA court—are the only things that can restore the rule of law and true constitutional government.


Ivan Eland is a Senior Fellow at The Independent Institute, Director of the Institute’s Center on Peace & Liberty, and author of the books The Empire Has No Clothes, and Putting “Defense” Back into U.S. Defense Policy.


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