Caught in gratuitous and illegal spying on American citizens, the Bush administration has defended its illegal activity and set the Justice (sic) Department on the trail of the person or persons who informed the New York Times of Bush’s violation of law. Note the astounding paradox: The Bush administration is caught red-handed in blatant illegality and responds by trying to arrest the patriot who exposed the administration’s illegal behavior.
Bush has actually declared it treasonous to reveal his illegal behavior! His propagandists, who masquerade as news organizations, have taken up the line: To reveal wrong-doing by the Bush administration is to give aid and comfort to the enemy.
Compared to Spygate, Watergate was a kindergarten picnic. The Bush administration’s lies, felonies, and illegalities have revealed it to be a criminal administration with a police state mentality and police state methods. Now Bush and his attorney general have gone the final step and declared Bush to be above the law. Bush aggressively mimics Hitler’s claim that defense of the realm entitles him to ignore the rule of law.
Bush’s acts of illegal domestic spying are gratuitous because there are no valid reasons for Bush to illegally spy. The Foreign Intelligence Services Act gives Bush all the power he needs to spy on terrorist suspects. All the administration is required to do is to apply to a secret FISA court for warrants. The Act permits the administration to spy first and then apply for a warrant, should time be of the essence. The problem is that Bush has totally ignored the law and the court.
Why would President Bush ignore the law and the FISA court? It is certainly not because the court in its three decades of existence was uncooperative. According to attorney Martin Garbus (New York Observer, 12/28/05), the secret court has issued more warrants than all federal district judges combined, only once denying a warrant.
Why, then, has the administration created another scandal for itself on top of the WMD, torture, hurricane, and illegal detention scandals?
There are two possible reasons.
One reason is that the Bush administration is being used to concentrate power in the executive. The old conservative movement, which honors the separation of powers, has been swept away. Its place has been taken by a neoconservative movement that worships executive power.
The other reason is that the Bush administration could not go to the FISA secret court for warrants because it was not spying for legitimate reasons and, therefore, had to keep the court in the dark about its activities.
What might these illegitimate reasons be? Could it be that the Bush administration used the spy apparatus of the US government in order to influence the outcome of the presidential election?
Could we attribute the feebleness of the Democrats as an opposition party to information obtained through illegal spying that would subject them to blackmail?
These possible reasons for bypassing the law and the court need to be fully investigated and debated. No administration in my lifetime has given so many strong reasons to oppose and condemn it as has the Bush administration. Nixon was driven from office because of a minor burglary of no consequence in itself. Clinton was impeached because he did not want the embarrassment of publicly acknowledging that he engaged in adulterous sex acts in the Oval Office. In contrast, Bush has deceived the public and Congress in order to invade Iraq, illegally detained Americans, illegally tortured detainees, and illegally spied on Americans. Bush has upheld neither the Constitution nor the law of the land. A majority of Americans disapprove of what Bush has done; yet, the Democratic Party remains a muted spectator.
Why is the Justice (sic) Department investigating the leak of Bush’s illegal activity instead of the illegal activity committed by Bush? Is the purpose to stonewall Congress’ investigation of Bush’s illegal spying? By announcing a Justice (sic) Department investigation, the Bush administration positions itself to decline to respond to Congress on the grounds that it would compromise its own investigation into national security matters.
What will the federal courts do? When Hitler challenged the German judicial system, it collapsed and accepted that Hitler was the law. Hitler’s claims were based on nothing but his claims, just as the claim for extra-legal power for Bush is based on nothing but memos written by his political appointees.
The Bush administration, backed by the neoconservative Federalist Society, has brought the separation of powers, the foundation of our political system, to crisis. The Federalist Society, an organization of Republican lawyers, favors more "energy in the executive." Distrustful of Congress and the American people, the Federalist Society never fails to support rulings that concentrate power in the executive branch of government. It is a paradox that conservative foundations and individuals have poured money for 23 years into an organization that is inimical to the separation of powers, the foundation of our constitutional system.
September 11, 2001, played into neoconservative hands exactly as the 1933 Reichstag fire played into Hitler’s hands. Fear, hysteria, and national emergency are proven tools of political power grabs. Now that the federal courts are beginning to show some resistance to Bush’s claims of power, will another terrorist attack allow the Bush administration to complete its coup?
Dr. Roberts [send him mail] is John M. Olin Fellow at the Institute for Political Economy and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal, former contributing editor for National Review, and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.