The National Catholic Review
The Editors
The recent resignation of Attorney General Alberto Gonzales brought to an end the most misguided attorney generalship since John Mitchell ran the Justice Department as a field office of the Nixon re-election campaign. In fact, the two attorneys general have something in common. They both saw themselves principally as servants of the presidents political agenda rather than the public interest. In Mr. Gonzaless case, he never appeared to make the transition from partisan White House counsel to impartial attorney general. This was nowhere more evident than in his vigorous defense of the dramatic expansion of executive authority that has occurred during this administration.

The American people look to the Justice Department to protect the integrity of our constitutional system. Mr. Gonzales helped to undermine it: the firings of able federal prosecutors for political ends, Mr. Gonzaless possible perjury before Congress, his defense of a virtually unrestrained executive privilege and his questionable legal justifications for the detention of so-called enemy combatants at the Guantanamo prison have all weakened important constitutional safeguards.

At every turn, the Bush administration has sought to expand the power and authority of the president. We are told that this is justified on grounds of national security. No one disputes that these dangerous times require unconventional responses. But there is also an ideological agenda at work. This White House is a champion of the so-called doctrine of the unitary executivea distorted view of the Constitution used to justify unlimited expansion of presidential authority. This specious theory was developed in full in the 1970s and 80s in response to the diminution of presidential authority during the post-Watergate years.

It should be remembered, however, that the presidents power was deliberately curtailed at that time because it had been illegally expanded and seriously abused. To be sure, both Democratic and Republican presidents have pushed presidential power beyond its constitutional limits. But it was the scandals of Watergate and Vietnam that finally prompted Congress and the American people to dismantle what the historian Arthur Schlesinger called the imperial presidency and restore the office to its proper place in our constitutional system. President Bush has sought to undo this reform; and unfortunately this Congress, afraid of appearing soft on terrorism, has largely permitted his expansion of executive authority to go unchecked.

A disturbing example of this is last months amendment of the Foreign Intelligence Surveillance Act of 1978 (FISA), the federal law that regulates how and when the government can spy on its own citizens. We learned in 2005 that the Bush administration was conducting warrantless telephone and e-mail surveillance of American citizens in obvious contravention of FISA. Last month, Congress rewarded this illegal behavior by legally permitting iteffectively suspending our Fourth Amendment protections against unreasonable searches and seizures until the law expires in six months.

FISA was enacted before the globalization of telecommunications. Because of changing technology, the law needed updating. This was not unusual; FISA has been updated more than 50 times since it was first enacted. This time, however, it was different. Congress and the administration went far beyond closing loopholesthey placed direct oversight of the FISA surveillance program in the attorney generals office, removing it from a court of law. In other words, now the executive branch is to police itself.

Every grade schooler knows that our constitutional system relies on checks and balances in order to function responsibly. The new FISA undermines this system by giving the executive branch a greatly enhanced ability to listen in on the private communications of American citizens without proper judicial or legislative oversight. Moreover, the Bush administration now asks the courts and Congress not only to ignore its previous illegal wiretapping but to grant immunity to the telecommunications companies that were complicit in it. Some congressional leaders have said that many provisions of the new FISA law are unacceptable and should be revisited. The rest of Congress should follow their lead. When the law expires in February, lawmakers should restore direct judicial oversight over all domestic surveillance by insisting on warrants for spying on U.S. citizens.

If Americans are asked to waive part of their constitutional rights, they deserve to know why. They also deserve an attorney general who will defend the rights of American citizens and the government of law promised by our Constitution. Congress should view additional reform and restraint of FISA as only a first step toward restoring the balance of power in the federal government.

Comments

ANDY GALLIGAN | 9/19/2007 - 6:14pm
AMERICA is to be very highly commended for such a truthful and insightful editorial that points out how much this administration has sought to establish an imperial presidency that wants no checks and that has its own control of things, both domestic and foreign, uppermost in its mind. A further danger to democracy that it has embraced seems to me its desire to thwart freedom of information. All this is done while increasing fear in the people by such images as that of the mushroom cloud. It is not difficult to see why masses everywhere have often turned to a so-called Strongman in time of national crisis, one who promises security at the price of freedom. In our history we have paid a great price for liberty. It is a shame that many are willing to pay even a higher price for freedom from fear.
ANDY GALLIGAN | 9/19/2007 - 6:13pm
AMERICA is to be very highly commended for such a truthful and insightful editorial that points out how much this administration has sought to establish an imperial presidency that wants no checks and that has its own control of things, both domestic and foreign, uppermost in its mind. A further danger to democracy that it has embraced seems to me its desire to thwart freedom of information. All this is done while increasing fear in the people by such images as that of the mushroom cloud. It is not difficult to see why masses everywhere have often turned to a so-called Strongman in time of national crisis, one who promises security at the price of freedom. In our history we have paid a great price for liberty. It is a shame that many are willing to pay even a higher price for freedom from fear.
Frances Rossi | 9/8/2007 - 3:34pm
Sadly under this administration, we have seen the Constitution become nothing but an old piece of paper. How more people are not mobilized or outraged is beyond me. So many freedoms have been eliminated or eroded. It is a joke that is not particularly funny. I never thought I would look back and long for John Ashcroft, who I thought was a constitution shredder. Was I wrong. I guess if he was the shredded, Gonzalez was the super-duper-takes-mulitple-sheets heavy duty cross-cut confetti version. I am honestly not sure how we will recover as a nation and I am a positive person. This madness must end. Must we wait until 2009? I am so fearful that Chertoff will end up as the next AG.

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