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.
