Stop King George

President's power grab threatens rule of law

Wed Jan 18, 6:53 AM ET

Five years ago this week, the Bush administration came into office determined to reverse what Vice President Cheney and others regarded as undue limits on presidential power. The administration's power grab has reached such brazen heights that President Bush now claims he is above the law.

For any American who thinks presidents should have the power of czars and kings, this is good news. For the rest of us, it should raise deep concern.

The immediate rationale for expanding executive authority is the war on terrorism - which does, in fact, require some invasive tactics. But the president's actions set a much broader, more enduring precedent. In the past two months alone:

• Bush acknowledged that he had secretly authorized government eavesdropping on U.S. citizens. The president says he is not bound by laws that specifically require approval from a special court set up to expedite such requests. He accepts no limits.

• As he signed a defense bill last month that included a provision barring the torture of detainees, the president issued a statement reserving the right as commander in chief to ignore the law, even though it was overwhelmingly endorsed in Congress.

These actions follow Bush's earlier assertion that he has the authority to seize and indefinitely imprison anyone - including American citizens such as alleged "dirty bomb" plotter Jose Padilla - he determines to be a threat to the nation.

Though Bush should use all legal means to protect against terror attacks, his "the law is what I say it is" attitude threatens the rights of all Americans and the constitutional system of checks and balances. In the words of former representative Bob Barr, a conservative Republican from Georgia: "President George W. Bush has ... dared the American people to do something about it. For the sake of the Constitution, I hope they will."

Americans fought a revolution because of the abuses of power by the British colonial government. Writings left by many of the Founders indicate that in dividing the government of their new country into three branches - legislative, executive and judicial - they hoped to avoid the danger of an all-powerful presidency.

Bush isn't the first president to try to consolidate imperial power in the White House, just the most recent. Other such power grabs have usually, but not always, been reined in by the courts and Congress.

During the Civil War, when the future of the nation was in graver danger than it is today, Abraham Lincoln claimed the power to have critics of his policies jailed and tried by military tribunals with no recourse to the courts. The Supreme Court ruled otherwise and sent a warning to future presidents not to try the same thing.

Early in World War II, Franklin Roosevelt ordered more than 100,000 Japanese-Americans, most of them U.S. citizens and none found to be spies, herded into internment camps for the war's duration. The court, to its everlasting shame, let him get away with it.

And during the Korean War, Harry Truman claimed the power to seize the nation's steel mills in the name of national security. The Supreme Court reminded him that Congress, not the president, has the authority to write the laws. There's no exception for wartime.

The current Supreme Court has reinforced that view. Two years ago, in another military-detainee case, Justice Sandra Day O'Connor said for the court, "A state of war is not a blank check for the president." Justice Antonin Scalia added, "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion."

Bush has often voiced his admiration for Scalia's view of the law. But these days the president appears to be setting himself above it to a greater extent than has any president since Richard Nixon.

If Bush wants to spy on Americans, he can put up with the inconvenience of review by a special court. If he violates anti-torture laws, having failed to persuade Congress to change them, he'll have to be accountable.

It's up to Congress and the courts to preserve the Founders' careful balancing of executive and legislative power. The Republican-controlled Congress has been reluctant to challenge Bush's excesses, but that might be changing. The Senate Judiciary Committee is planning hearings next month on the warrantless wiretapping. Chairman Arlen Specter, R-Pa., and committee members of both parties have joined the growing chorus of skepticism about the legality of the eavesdropping program.

That should send a message to the White House: Unless Bush scales back his administration's power grabs and obeys the laws Congress has written, a constitutional showdown could well be in his future.

Copyright © 2006 USA TODAY, a division of Gannett Co. Inc.