Spying on the Homeland

When I was confirmed, my grandfather gave me two things: a King James Bible, and a copy of the U.S. Constitution. (He told me to keep them together, and no, he isn’t a Republican.) I don’t know how things work in the Bush family, but I’m pretty sure W. got the bible; I only wish Grandpa Prescott had remembered the Constitution.

            When The New York Times broke the story on Thursday evening—that President Bush had secretly ordered the National Security Agency to spy on United States citizens, within the United States, without a warrant—it was hard not to question whether the President is familiar with that document. 

            Despite the seemingly clear violation of the Fourth Amendment to the Constitution—“the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” legally taken to include electronic communication, “shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation,” by the courts, “and particularly describing the place to be searched, and the persons or things to be seized”—the President claimed his actions were “fully consistent with [his] constitutional responsibilities and authorities.”  Just what are those constitutional responsibilities and authorities (besides, of course, to “preserve, protect, and defend the Constitution of the United States”)?

For one, they’re either incredibly vague, or incredibly limited, depending on how you like your constitutional theory. The Constitution specifically enumerates a very mundane, ho-hum list of executive powers—things like receiving ambassadors, appointing officials to vacant positions during the recess of the Senate, and so on—yet none having to do with determining the level of danger at which constitutional prerogatives go by the way-side (that belongs, appropriately, to the judiciary). Likewise, the Constitution doesn’t provide for the executive to supersede any other law that might confound, by his judgment, his duty to protect the nation. A quick jaunt into The Federalist Papers reveals that the executive’s subservience to the written law is actually one of our system’s selling points, in the view of the Founders themselves.

 So just what are the President and Secretary of State Condoleeza Rice—who echoed the constitutionality of the secret executive order on the Sunday morning news circuit—talking about? It’s worth noting that the power of “executive order” is nowhere to be found in the Constitution. Instead, there is a boundless and vague phrase that, not unlike the “necessary and proper” clause taken to mean that Congress can legislate basically anything, leaves it open for debate: “the executive Power,” with a capital ‘P,’ “shall be invested in a President of the United States of America.” Depending on whom you ask, this phrase is either the justification for fairly extensive powers, or a truism meant only to open the second article, no more, no less. All that is left, then, that could justify the President’s action is his constitutional designation as Commander-in-Chief, except that this designation applies only to the nation’s military, and its invocation implies that Bush is using his military powers against American citizens—a scary proposition indeed.

If there’s one thing that we know about Bush and his fellow arch-conservatives, it’s that they only cry strict construction when it serves their purposes; still, pointing this out and “beating them at their own game” misses the larger and more salient point. Whether Bush’s expansion of powers—his reinterpretation of conventions regarding torture, the executive directive in question, among others—is technically legal or constitutional is secondary to whether it is right and in accordance with the American ideals, the American ethos. It is not. Listening to the President’s poor and inadequate defense of this disgraceful policy, noticeably absent from his touted “longest speech ever” last night, a damning charge leveled in the Declaration of Independence against another George is called to mind: “He has affected to render the Military independent of and superior to the Civil Power.”

Let’s not stand for it.