I thought that Bush administration officials believed in narrow and restrained interpretation of the law. At least, that's what they say when it comes to selecting judges. And some Bush allies in the judicial wars believe in literally interpreting the Constitution: if the words aren't there, the ideas are not. Anyone who attempts to read into the text — or who seek to apply the ideas behind the text to modern situations that could not have been foreseen by the guys who came up with the Constitution — is accused of committing the sin of "judicial activism." Of course, conservative judges often engage in such activism themselves when they impose their views (narrow or broad) upon the implementation of laws passed by legislative bodies. Still, it is the rightwing, with Bush shouting "Amen," that has made the end of liberal judicial activism a holy cause.
That's why I have been bemused in recent days by the Bush administration's attempt to justify Bush's order that instructed the National Security Agency to eavesdrop on Americans without seeking warrants — not even after-the-fact in emergency circumstances (as is permitted by existing law). In a letter sent to Congress, Bush's Justice Department acknowledged that Bush's snooping order did not comply with "the 'procedures' of" the Foreign Intelligence Surveillance Act (FISA), which set up a secret intelligence court and made it a crime to conduct electronic surveillance without obtaining a warrant form that court, except in certain situations authorized by the law. But in that letter, Assistant Attorney General William Moschella claimed that Congress implicitly established an exception to FISA when it passed a resolution days after 9/11 that authorized Bush to use military force in response to the that attack. This law contained not a single reference to surveillance. Yet Moschella claimed that NSA snooping was covered by this authority.
How liberal of the Bush Justice Department. At that time, Bush was free to ask specifically for such authority. And if it had been shoved into the Patriot Act, it probably would have won congressional approval. Moreover, Tom Daschle, who was then Senate majority leader, notes that the Bush White House did indeed ask for war-making authority "in the United States" and that Congress rejected that formulation. If true, this undercuts Bush's case that Congress essentially granted his administration permission to snoop domestically without a warrant within the United States.
Attorney General Alberto Gonzales has been pushing this implied-powers argument, too. He has pointed to a 2004 Supreme Court decision — a four-member plurality — that declared that the 2001 resolution did implicitly permit Bush to detain American citizens suspected of terrorism. But that ruling did note that such detainees must be given access to the courts — that is, that there had to be some degree of due process. The Court maintained that the president could not do whatever he wanted in this matter. Gonzales, who has previously pushed a president-is-king position, is practically saying that this Supreme Court decision allowed the president to rewrite or ignore any law he wishes to if he can say he is doing so to prosecute the war on terrorism. Now that's legal activism. Gonzales' recent statements also echoes a Justice Department memo regarding torture that claimed Bush was not bound by existing law when he takes actions as commander-in-chief — a memo that Gonzales did disavow when the White House was under fire for seeming to justify the use of torture. Clearly, Gonzales still believes in the intellectual underpinnings of that memo.
The Bushies — with Dick Cheney beating the drum — are mounting the most extensive power-grab seen in decades. Yes, there is a war. Yes, Abraham Lincoln did suspend habeus corpus. Still, this band is fiercely challenging the general constitutional balance, and, worse, they are doing it in secrecy. Consequently, they are trying to prevent citizens from seeing and debating the arguably unconstitutional actions they are taking, supposedly in the name of protecting the citizenry. This is hardly traditionalism; this is radicalism.
Reprinted with permission from The Nation