The challenges posed to American democracy by secrecy and by unchecked presidential power are the two great themes running through the history of the Iraq war. How long the war will last, who will “win,” and what it will do to the political landscape of the Middle East will not be obvious for years to come, but the answers to those questions cannot alter the character of what happened at the outset. Put plainly, the President decided to attack Iraq, he brushed caution and objection aside, and Congress, the press, and the people, with very few exceptions, stepped back out of the way and let him do it.
Explaining this fact is not going to be easy. Commentators often now refer to President Bush’s decision to invade Iraq as “a war of choice,” which means that it was not provoked. The usual word for an unprovoked attack is aggression. Why did Americans —elected representatives and plain citizens alike—accede so readily to this act of aggression, and why did they question the President’s arguments for war so feebly? The whole business is painfully awkward to consider, but it will not go away. If the Constitution forbids a president anything it forbids war on his say-so, and if it insists on anything it insists that presidents are not above the law. In plain terms this means that presidents cannot enact laws on their own, or ignore laws that have been enacted by Congress.
The Foreign Intelligence Surveillance Act of 1978 is such a law; it was enacted to end years of routine wiretapping of American citizens who had attracted official attention by opposing the war in Vietnam. The express purpose of the act was to limit what presidents could ask intelligence organizations to do. But for limits on presidential power to have meaning Congress and the courts must have the fortitude to say no when they think no is the answer.
In public life as in kindergarten, the all-important word is no. We are living with the consequences of the inability to say no to the President’s war of choice with Iraq, and we shall soon see how the Congress and the courts will respond to the latest challenge from the White House—the claim by President Bush that he has the right to ignore FISA’s prohibition of government intrusion on the private communications of Americans without a court order, and his repeated statements that he intends to go right on doing it.
Nobody was supposed to know that FISA had been brushed aside. The fact that the National Security Agency (NSA), America’s largest intelligence organization, had been turned loose to intercept the faxes, e-mails, and phone conversations of Americans with blanket permission by the President remained secret until the New York Times reporters James Risen and Eric Lichtblau learned over a year ago that it was happening. An early version of the story was apparently submitted to the Times’ editors in October 2004, when it might have affected the outcome of…
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