WASHINGTON – The furor over President Bush’s domestic surveillance program is the latest skirmish in a centuries-old battle over presidential powers in times of war.
By letting government agents eavesdrop without court oversight, Bush joined a long list of presidents who’ve tested the limits of their wartime authority – often to the detriment of their reputations. Most over-reached. Legal scholars who disagree with Bush’s approach say he missed a vital history lesson.
In hindsight, John Adams’ efforts to stifle dissent in the early years of the nation, Woodrow Wilson’s revocation of free speech during World War I and Franklin Roosevelt’s order imprisoning Japanese-Americans in World War II are considered blatant abuses of power. Even Abraham Lincoln carries a blemish for his aggressive assertion of presidential authority during the Civil War.
Without consulting Congress, Lincoln suspended the right of Americans to challenge their arrests in court, then ignored a federal court order challenging his decision. The president said he faced a painful choice between preserving constitutional rights or preserving the nation.
“Was it possible to lose the nation, and yet preserve the Constitution?” Lincoln asked in an 1864 letter defending his action. ” … Often a limb must be amputated to save a life; but a life is never wisely given to save a limb.”
Like other presidents before him, Bush contends that his constitutional role as commander in chief gives him broad authority to deal with threats. Shortly after the terrorist attacks on Sept. 11, 2001, he secretly bypassed legal restrictions on government eavesdropping to go after suspected terrorists.
“During times of war, presidents push the envelope. They assert powers that often rise above constitutional powers,” said Dave Adler, a political science professor at Idaho State University who specializes in presidential war powers.
The Constitution is vague on the limits of presidential war powers. Although the president serves as commander in chief, Congress has the power to declare war and “raise and support armies.”
Many legal scholars think Bush went too far in using his war powers to order domestic surveillance without court approval. The eavesdropping targets communications between the United States and foreign destinations.
“The founders were extremely nervous about presidential authority,” said Geoffrey Stone, a University of Chicago law professor and the author of “Perilous Times,” a book about wartime restrictions on civil liberty. “It’s not for the president to decide these things on his own in secret.”
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Bush’s assertion of authority to deal with terrorism is consistent with his overall approach to presidential power. He and Vice President Dick Cheney have made no secret of their desire to resist what they see as unjustified checks on executive authority by Congress and the courts.
“I believe in a strong, robust executive authority. And I think the world we live in demands it,” Cheney said Tuesday. “I do think that to some extent now we’ve been able to restore the legitimate authority of the presidency.”
In 1982, Cheney, then a congressman from Wyoming, cited his expansive view of presidential authority in defending Ronald Reagan during the Iran-Contra scandal. The scandal stemmed from Reagan’s efforts to skirt a congressional ban on aid to Nicaragua’s Contra rebels by using the proceeds from secret weapons sales to Iran.
Reagan dismantled the secret program after it became public knowledge.
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However, presidents usually get their way in times of war, even if history later judges them harshly.
Four decades after the Supreme Court approved Roosevelt’s order for the internment of Japanese-Americans, Congress apologized and blamed the policy on “race prejudice, war hysteria and a failure of political leadership.”
The Sedition Act of 1918, supported by Wilson, Congress and the courts, made it illegal to “utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about” the government, the Constitution, the American flag or “the uniform of the Army or Navy of the United States.”
The law, similar in spirit to the discredited Alien and Sedition Acts of 1798, was repealed three years later.
President Harry Truman suffered a rare wartime rebuke in 1952 when the Supreme Court blocked his plan for a federal takeover of the steel industry during the Korean War. Truman wanted to avert a labor strike that he feared would disrupt war supplies, but the court concluded that he needed congressional approval.
More recently, the Supreme Court offered a mixed verdict on Bush’s treatment of enemy combatants captured in the war on terrorism. The court agreed that the government could detain U.S. citizens but rejected the government’s claim that it could deny a captured citizen access to the courts.
“We have long since made it clear,” Justice Sandra Day O’Connor wrote for the court, “that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
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Some examples of efforts to expand presidential authority in wartime:
The Alien and Sedition Acts of 1798: The laws, passed in response to war fever against France, gave President John Adams the power to imprison government critics and deport aliens suspected of posing a threat to the government.
The suspension of liberties during the Civil War: President Abraham Lincoln suspended the right of citizens to challenge their arrests in court and defied a court order challenging his decision. The suspension gave him a free hand to round up suspected spies as well as his critics.
The Sedition Act of 1918: The updated sedition law, and a companion statute on espionage, gave President Woodrow Wilson broad authority to arrest critics. One anti-war activist was convicted for writing a letter to The Kansas City Star.
The internment of Japanese-Americans: President Franklin Roosevelt ordered the internment of more than 100,000 Japanese-Americans because of doubts about their loyalty during World War II. Decades later, the government apologized.
Nationalizing the steel industry: President Harry Truman tried to assert federal control over the steel industry to avoid a strike that could have disrupted war supplies during the Korean War. The Supreme Court blocked him.
Domestic spying: Responding to political turbulence in the early 1970s, President Richard Nixon authorized electronic surveillance without court approval against Americans suspected of subversive activities. The Supreme Court ruled in 1972 that he had exceeded his authority.
The Iran-Contra affair: Frustrated by a congressional ban on aid to Nicaraguan Contra rebels, President Ronald Reagan authorized a secret plan to send them proceeds from the sale of weapons to Iran. He dismantled the program after it became public knowledge, but for a time faced potential impeachment.
Enemy combatants: The Supreme Court ruled last year that President Bush had the authority to detain U.S. citizens as enemy combatants in the war on terrorism but couldn’t deny them access to the courts.
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(c) 2005, Knight Ridder/Tribune Information Services.
AP-NY-12-21-05 1716EST
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