There are few times as deeply etched in my memory as July 24, 1974, when the Supreme Court unanimously ruled that President Richard Nixon had to surrender the tapes subpoenaed by the Watergate special prosecutor. Those tapes offered indisputable proof that Nixon had played a key role in covering up the Watergate break-in and other illegal activities.
I remember thinking, What would Nixon do? Surrendering the tapes would mean political ruin and personal disgrace. Would he obey the court or call out the National Guard? Mercifully, eight hours after the court decision, the White House announced it would comply.
I felt that same chill down my spine listening to President George W. Bush on Dec. 17, 2005, as he attempted to explain the revelations in The New York Times concerning him ordering the National Security Agency to engage in extensive eavesdropping on U.S. citizens without the court order required by the Foreign Intelligence and Surveillance Act (FISA) of 1978. Not even mentioning FISA, the president stated proudly, “I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.”
By what authority did Bush ignore the FISA requirement? Bush claimed he was using “...authority vested in me by Congress, including the Joint Authorization for Use of Military Force...[and] constitutional authority vested in me as commander-in-chief.” Most legal scholars agree that these arguments are quite a stretch. A group of distinguished lawyers, several of whom worked in senior positions in administrations of both parties, sent members of Congress an extensive legal analysis of Bush’s domestic spying, concluding, “The program appears on its face to violate existing law.”
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