The rule of law must be restored

THE BALTIMORE SUN

The following are excerpts from a speech Monday in Washington by former Vice President Al Gore that was sponsored by the Liberty Coalition and the American Constitution Society for Law and Policy.

The executive branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses.

It is imperative that respect for the rule of law be restored.

The Foreign Intelligence and Surveillance Act was enacted expressly to ensure that foreign intelligence surveillance would be presented to an impartial judge to verify that there is a sufficient cause for the surveillance.

During the period when this eavesdropping was still secret, the president went out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.

But surprisingly, the president's soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the president not only confirmed that the story was true, but also declared that he has no intention of bringing these wholesale invasions of privacy to an end.

We still have much to learn about the National Security Agency's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law repeatedly and persistently.

A president who breaks the law is a threat to the very structure of our government.

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the king from whom they had broken free.

Vigilant adherence to the rule of law strengthens our democracy and strengthens America. It ensures that those who govern us operate within our constitutional structure, which means that our democratic institutions play their indispensable role in shaping policy and determining the direction of our nation. It means that the people of this nation ultimately determine its course and not executive officials operating in secret without constraint.

The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents overreaching and checks the accretion of power.

Following the rule of law makes us safer, not more vulnerable.

Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.

The president's men have minced words about America's laws. The attorney general openly conceded that the "kind of surveillance" we now know they have been conducting requires a court order unless authorized by statute. The Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing, and no one inside or outside the administration claims that it does. Incredibly, the administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on Sept. 11.

This argument just does not hold any water.

Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the president has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?

The fact that our normal safeguards have thus far failed to contain this unprecedented expansion of executive power is deeply troubling. This failure is due in part to the fact that the executive branch has followed a determined strategy of obfuscating, delaying, withholding information, appearing to yield but then refusing to do so and dissembling in order to frustrate the efforts of the legislative and judicial branches to restore our constitutional balance.

For one thing, we have for decades been witnessing the slow and steady accumulation of presidential power.

A second reason to believe we may be experiencing something new is that we are told by the administration that the war footing upon which he has tried to place the country is going to "last for the rest of our lives."

Third, we need to be aware of the advances in eavesdropping and surveillance technologies with their capacity to sweep up and analyze enormous quantities of information and to mine it for intelligence. This adds significant vulnerability to the privacy and freedom of enormous numbers of innocent people at the same time as the potential power of those technologies.

There is, in fact, an inherent power that is conferred by the Constitution to the president to take unilateral action to protect the nation from a sudden and immediate threat, but it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.

But the existence of that inherent power cannot be used to justify a gross and excessive power grab lasting for years that produces a serious imbalance in the relationship between the executive and the other two branches of government.

There is a final reason to worry that we may be experiencing something more than just another cycle of overreach and regret. This administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential authority is exactly what our Constitution intended.

This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president's powers until the contours of the Constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the president's authority when acting as commander in chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress.

President Bush has pushed the implications of this idea to its maximum by continually stressing his role as commander in chief, invoking it as frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

This effort to rework America's carefully balanced constitutional design into a lopsided structure dominated by an all powerful executive branch with a subservient Congress and judiciary is - ironically - accompanied by an effort by the same administration to rework America's foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.

The common denominator seems to be based on an instinct to intimidate and control.

Whenever power is unchecked and unaccountable, it almost inevitably leads to mistakes and abuses. That is part of human nature. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded.

Moreover, if the pattern of practice begun by this administration is not challenged, it may well become a permanent part of the American system. Many conservatives have pointed out that granting unchecked power to this president means that the next president will have unchecked power as well. And the next president may be someone whose values and belief you do not trust.

If this president's attempt to dramatically expand executive power goes unquestioned, our constitutional design of checks and balances will be lost. And the next president or some future president will be able, in the name of national security, to restrict our liberties in a way the Framers never would have thought possible.

I call upon Democratic and Republican members of Congress today to uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of government you're supposed to be.

A special counsel should immediately be appointed by the attorney general to remedy the obvious conflict of interest that prevents him from investigating what many believe are serious violations of law by the president.

Second, new whistleblower protections should immediately be established for members of the executive branch who report evidence of wrongdoing - especially where it involves the abuse of executive branch authority in the sensitive areas of national security.

Third, both houses of Congress should hold comprehensive - and not just superficial - hearings into these serious allegations of criminal behavior on the part of the president. And they should follow the evidence wherever it leads.

Fourth, the extensive new powers requested by the executive branch in its proposal to extend and enlarge the Patriot Act should under no circumstances be granted, unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed.

Fifth, any telecommunications company that has provided the government with access to private information concerning the communications of Americans without a proper warrant should immediately cease and desist its complicity in this apparently illegal invasion of the privacy of American citizens.

It is particularly important that the freedom of the Internet be protected against either the encroachment of government or the efforts at control by large media conglomerates. The future of our democracy depends on it.

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