Conservatives Break with Bush on Spying

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Conservatives Break with Bush on Spying

Mon, 06 Feb 2006 10:55:16 -0800

 

 

 

 

 

t r u t h o u t | 02.06

 

Conservatives Break with Bush on Spying

http://www.truthout.org/docs_2006/020606J.shtml

The skeptics include leaders of conservative activist groups,

well-known law professors, veterans of Republican administrations,

former GOP members of Congress, and think tank analysts. The

conservatives said they are speaking out because they object to the

White House's attempt to portray criticism of the program as partisan

attacks.

 

 

http://www.truthout.org/docs_2006/020606J.shtml

 

On Eve of Hearing, Split on Spying

By Charlie Savage

The Boston Globe

 

Sunday 05 February 2006

 

Some prominent conservatives break with Bush.

 

Washington - As hearings begin tomorrow on President Bush's

domestic spying program, increasing numbers of prominent conservatives

are breaking with the administration to say the program is probably

illegal and to sharply criticize Attorney General Alberto R.

Gonzales's legal theory that a wartime president can override a law.

 

The skeptics include leaders of conservative activist groups,

well-known law professors, veterans of Republican administrations,

former GOP members of Congress, and think tank analysts. The

conservatives said they are speaking out because they object to the

White House's attempt to portray criticism of the program as partisan

attacks.

 

" My criteria for judging this stuff is what would a President

Hillary do with these same powers, " said Paul M. Weyrich, the

influential writer and leader of the Free Congress Foundation, a think

tank. " And if I'm troubled by what she would do, then I have to be

troubled by what Bush could do, even though I have more trust in Bush

than I do in Hillary. "

 

Shortly after the terrorist attacks of Sept. 11, 2001, Bush

secretly authorized the military to wiretap American's international

phone calls and e-mails without obtaining court permission, as a law

requires. After the program's existence was disclosed in December,

Bush contended that his wartime powers give him the authority to

override the law requiring warrants.

 

The Senate Judiciary Committee is set to open a hearing into

the legality of the program tomorrow, with Gonzales scheduled to

testify all day. In advance of his testimony, White House spokeswoman

Dana Perino defended the program against its conservative critics.

 

Bush, she said, " has received strong support for the program

from many different people. And while some may disagree, despite the

extensive legal analysis provided by the Department of Justice, the

president is strongly committed to this lawful program. "

 

But the Bush administration's legal analysis has been met with

contempt from an increasingly vocal segment of the conservative movement.

 

Some of the conservative critics, such as Grover Norquist of

Americans for Tax Reform, contend that Bush should simply comply with

the law requiring the government to obtain a court order when it wants

to wiretap an American. Bush's aides have asserted that warrants take

too long to obtain, but Norquist said the law allows investigators to

plant a wiretap first and seek permission up to three days later.

 

" There is no excuse for violating the rule of law, " Norquist

said. " You can listen to [suspects] and get the warrant afterward. Not

to do that appears to be an expression of contempt for the idea of

warrants. "

 

Larry Pratt, executive director of Gun Owners of America, said

that if investigators need more time to fill out the warrant

application, Congress should change the law to extend the deadline.

But, he said, court orders ought to remain part of the process to

ensure that government surveillance power is never used against the

political enemies of whomever is in power.

 

" Some liberals think of gun owners as terrorists, " he said.

 

Other conservative critics, such as David Keene, the chairman

of the American Conservative Union - which calls itself the largest

grass-roots conservative organization in the country - say the

president should simply get the House and Senate to approve the

program, rather than assert a right to bypass Congress in times of war.

 

" Their argument is extremely dangerous in the long term

because it can be used to justify all kinds of things that I'm sure

neither the president nor the attorney general has thought about, "

Keene said. A president " could just do whatever [he] wants to do. . .

.. The American system was set up on the assumption that you can't rely

on the good will of people with power. "

 

Bruce Fein, a former Justice Department official under

President Reagan, said that under Bush's theory a president could

authorize internment camps for groups of US citizens he deems

suspicious. Congress outlawed such camps after President Franklin D.

Roosevelt interned Japanese-Americans in World War II. But under

Bush's theory, the president could invoke his wartime powers to

override the law in the name of protecting national security, Fein said.

 

" It's Bush's defenders who are embracing the most liberal and

utopian view of human nature with their 'trust me' argument, a view

that would cause the Founding Fathers to weep, " Fein said. " The real

conservatives are the ones who treasure the original understanding of

the Constitution, and clearly this is inconsistent with the separation

of powers. "

 

Some conservatives defend the legality of the surveillance

program. Among the most prominent has been David Rivkin, a former

associate White House counsel in the administration of George H.W.

Bush, who has recently found himself debating a series of

conservatives who used to be his allies.

 

Rivkin said his fellow conservatives who call the surveillance

program illegal are mostly libertarians and other believers in small

government. The critics, he said, do not believe that the war on

terrorism is a real war and that the nature of terrorism requires

treating the home front like a battlefield.

 

" Most of the critics don't really agree that this is war, or

if they do, they haven't thought through the implications, " Rivkin

said. " The rules in war are harsh rules, because the stakes are so high. "

 

Rivkin also rejected Fein's contention that if Bush's legal

theory is correct, a president also could authorize internment camps.

He said the president can do things that are normal parts of war,

including conducting military surveillance. But it would still be

illegal to detain citizens who aren't enemy combatants, he said.

 

But Robert Levy of the libertarian Cato Institute said

conducting surveillance on US soil without a warrant is one of the

things that Bush cannot do, even in wartime, because Congress passed a

law making it a criminal offense to wiretap Americans without a

warrant, even in national security circumstances.

 

" If we had silence by Congress on warrants, then the

administration's position would be more powerful, " Levy said. " But the

president is acting contrary to the expressed will of Congress. That

is what renders this program most legally suspect. "

 

Richard Epstein, a prominent conservative law professor at the

University of Chicago, said Rivkin and the other defenders of the

president's legal theory are misreading the Constitution. The

president has broad powers to take immediate steps to counter an

invasion, he said, but has little authority to defy the will of

Congress after an initial emergency has receded.

 

Bob Barr, a onetime Republican representative from Georgia and

a former prosecutor, said the issue is whether the president can

violate a law, not whether this particular program makes sense from a

policy perspective in the war on terrorism.

 

Said Barr, " If the American people see the conservative

movement rolling over and playing dead and buying into these specious

arguments by the administration - that it's OK to violate the law as

long as you do it for the right reasons and because we might have a

president that we like - then the credibility of the conservative

movement on other issues will suffer greatly. "

 

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