Since the New York Times revealed President Bush’s domestic spying program, a heated debate has erupted in Washington that is likely to intensify over the next year. This debate appears to be over the struggle to balance civil liberties with the nation’s protection and security. But this debate is more complex than this surface analysis. It will be fought as the next episode of the United States’s historic battle between the powers of the Executive Branch during war time and Congress’s discretion in checking those powers without leaving the nation vulnerable. President Bush has insisted since the beginning of the controversy that the actions he authorized the National Security Agency to take are not only justified, but legal under Section II of the Constitution, and under the authority vested in him by Congress in fighting the War on Terrorism. An analysis conducted by a Congressional legal team found the president’s interpretation of his powers to be misguided and hinted that the president had exceeded his authority as Commander-in-Chief by authorizing the spying of American citizens without court approval. The nuances of Constitutional Law set aside, the most disturbing aspect of this drama is the show of arrogance and imperialism by the White House. The Bush Administration’s excuse for their actions: because they could. Dick Cheney has for many years been an ardent supporter of Executive power who cringes at the thought of the Congressional investigations that became so powerful and prevalent in the wake of Vietnam and Watergate. Cheney, since his early closed-door meetings with oil executives to formulate the administration’s energy policy, has been intent on using his time in office to restore executive power and turn the president into a figure who cannot be beleaguered by the political winds in Congress. Listening to Cheney and Bush defend their program and their powers as the executive branch of the government invokes an eerie reminder of another wartime president who made it his mission to raise the powers of the White House above its Capitol Hill neighbors. This President was Nixon, and like Bush and Cheney, he seemed to believe that he was above the law. The way the law is set up, the National Security Agency can have a domestic wiretap legally approved by the courts in a relatively short amount of time. Mr. Bush has given no indication that his program is targeting subjects who might be discussing imminent threats. Perhaps Mr. Bush does not feel compelled to justify his plan to a court out of fear of weakening his own position by empowering any other branch. Cheney’s demeanor is suggestive of a dictator who rests high above the law, not the number two man in a democracy dependent on checks and balances. The timing of President Bush’s lectures on the inherent executive powers in the Constitution comes at an interesting moment, while his nominee for Supreme Court Samuel Alito begins his hearing. Since nominating him months ago, Mr. Bush has celebrated Judge Alito for being a constructionist. Mr. Alito, as lauded by President, strictly follows the Constitution and does not legislate from the bench. President Bush is demonstrating hypocrisy by insisting that federal judges adhere rigidly to the words of the Constitution while he defends his heavy-handed actions based on inherent powers in the Constitution and the war resolution passed shortly after 9/11. Then again, if Cheney’s apparent intentions of bringing back the so-called “imperial presidency” succeed, there will be no reason to debate about the specific language of the Constitution. When Cheney’s utopia arrives, the Bush Administration will be far above the reaches of the law of the land.
