* Bush has recently admitted that in the four years since 9/11, he has repeatedly authorized the NSA to engage in domestic wiretapping without obtaining warrants. Moreover, he says he intends to keep on doing so. He has ignored a special court established by the Foreign Intelligence Surveillance Act (FISA) of 1978 to authorize surveillance activity. FISA even allows the president in time of war to wait as long as fifteen days before seeking a warrant from the court.
The administration argues that the 2001 Authorization for Use of Military Force (AUMF) implicitly justifies warrantless surveillance. In a remarkable open letter to Congress, a distinguished group of legal scholars debunk this argument. They point out that FISA "makes criminal any electronic surveillance not authorized by statute...; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the exclusive means by which electronic surveillance ... may be conducted... (emphasis added)." So the administration is making the absurd claim that what Congress has explicitly forbidden in FISA is implied in AUMF.
Hard to keep story straight
Moreover, as this same open letter points out, the administration has admitted that it did not try to get FISA amended to allow its wiretapping program because they believed Congress would not agree. How can the administration say that Congress would not agree to what they claim Congress had meant to say in AUMF? As any detective could have told Bush, the more you try to deceive people, the harder it is to keep your story straight.
Just as it has been willing to ignore the constitution and law of the United States, the Bush administration has shown a similar disregard for international treaties and conventions. Here are just a few examples. It refuses to participate in the International Court of Justice or the International Criminal Court. Bush withdrew from the Kyoto Accords after the previous administration played a large role in shaping them. America's treatment of detainees violates Geneva and UN Conventions, and its doctrine of preemptive war violates the UN charter.
There is a consistent theme to the domestic and international policy of the Bush administration: the willingness to use power unconstrained by law. In the domestic arena, it insists on its own self-serving interpretations of laws and constitutional provisions limiting executive power. In international affairs, it takes a might-makes-right approach to the rest of the world. It pursues American interests by relying on military power even to the extent of undermining the institutions of international law.
Bush constantly invoked the ideal of "freedom" in his state of the union address. However, his foreign policy offers other countries domination, not freedom. He seems to forget that there is no freedom without the rule of law. If we are not all, including the executive branch, ruled by the same set of laws, then we will find ourselves under the will of those who wield power in our society. Bush has claimed the right to detain American citizens at will, without charges or trial, subject to torture and indefinite imprisonment. That is the kind of power that the American revolution sought to abolish.
Thomas Paine wrote in Common Sense: "In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." Have we traded one King George for another?
Brian Cooney is a professor of philosophy at Centre College.