On eve of hearing, split on spying: Some prominent conservatives break with Bush

Boston Globe
Feb. 06, 2006

WASHINGTON -- As hearings begin tomorrow on President Bush's domestic spying program, increasing numbers of prominent conservatives are breaking with the administration to say the program is probably illegal and to sharply criticize Attorney General Alberto R. Gonzales's legal theory that a wartime president can override a law.

The skeptics include leaders of conservative activist groups, well-known law professors, veterans of Republican administrations, former GOP members of Congress, and think tank analysts. The conservatives said they are speaking out because they object to the White House's attempt to portray criticism of the program as partisan attacks.

''My criteria for judging this stuff is what would a President Hillary do with these same powers," said Paul M. Weyrich, the influential writer and leader of the Free Congress Foundation, a think tank. ''And if I'm troubled by what she would do, then I have to be troubled by what Bush could do, even though I have more trust in Bush than I do in Hillary."

Shortly after the terrorist attacks of Sept. 11, 2001, Bush secretly authorized the military to wiretap American's international phone calls and e-mails without obtaining court permission, as a law requires. After the program's existence was disclosed in December, Bush contended that his wartime powers give him the authority to override the law requiring warrants.

The Senate Judiciary Committee is set to open a hearing into the legality of the program tomorrow, with Gonzales scheduled to testify all day. In advance of his testimony, White House spokeswoman Dana Perino defended the program against its conservative critics.

Bush, she said, ''has received strong support for the program from many different people. And while some may disagree, despite the extensive legal analysis provided by the Department of Justice, the president is strongly committed to this lawful program."

But the Bush administration's legal analysis has been met with contempt from an increasingly vocal segment of the conservative movement.

Some of the conservative critics, such as Grover Norquist of Americans for Tax Reform, contend that Bush should simply comply with the law requiring the government to obtain a court order when it wants to wiretap an American. Bush's aides have asserted that warrants take too long to obtain, but Norquist said the law allows investigators to plant a wiretap first and seek permission up to three days later.

''There is no excuse for violating the rule of law," Norquist said. ''You can listen to [suspects] and get the warrant afterward. Not to do that appears to be an expression of contempt for the idea of warrants."

Larry Pratt, executive director of Gun Owners of America, said that if investigators need more time to fill out the warrant application, Congress should change the law to extend the deadline. But, he said, court orders ought to remain part of the process to ensure that government surveillance power is never used against the political enemies of whomever is in power.

''Some liberals think of gun owners as terrorists," he said.

Other conservative critics, such as David Keene, the chairman of the American Conservative Union -- which calls itself the largest grass-roots conservative organization in the country -- say the president should simply get the House and Senate to approve the program, rather than assert a right to bypass Congress in times of war.

''Their argument is extremely dangerous in the long term because it can be used to justify all kinds of things that I'm sure neither the president nor the attorney general has thought about," Keene said. A president ''could just do whatever [he] wants to do. . . . The American system was set up on the assumption that you can't rely on the good will of people with power."

Bruce Fein, a former Justice Department official under President Reagan, said that under Bush's theory a president could authorize internment camps for groups of US citizens he deems suspicious. Congress outlawed such camps after President Franklin D. Roosevelt interned Japanese-Americans in World War II. But under Bush's theory, the president could invoke his wartime powers to override the law in the name of protecting national security, Fein said.

''It's Bush's defenders who are embracing the most liberal and utopian view of human nature with their 'trust me' argument, a view that would cause the Founding Fathers to weep," Fein said. ''The real conservatives are the ones who treasure the original understanding of the Constitution, and clearly this is inconsistent with the separation of powers."

Some conservatives defend the legality of the surveillance program. Among the most prominent has been David Rivkin, a former associate White House counsel in the administration of George H.W. Bush, who has recently found himself debating a series of conservatives who used to be his allies.

Rivkin said his fellow conservatives who call the surveillance program illegal are mostly libertarians and other believers in small government. The critics, he said, do not believe that the war on terrorism is a real war and that the nature of terrorism requires treating the home front like a battlefield.

''Most of the critics don't really agree that this is war, or if they do, they haven't thought through the implications," Rivkin said. ''The rules in war are harsh rules, because the stakes are so high."

Rivkin also rejected Fein's contention that if Bush's legal theory is correct, a president also could authorize internment camps. He said the president can do things that are normal parts of war, including conducting military surveillance. But it would still be illegal to detain citizens who aren't enemy combatants, he said.

But Robert Levy of the libertarian Cato Institute said conducting surveillance on US soil without a warrant is one of the things that Bush cannot do, even in wartime, because Congress passed a law making it a criminal offense to wiretap Americans without a warrant, even in national security circumstances.

''If we had silence by Congress on warrants, then the administration's position would be more powerful," Levy said. ''But the president is acting contrary to the expressed will of Congress. That is what renders this program most legally suspect."

Richard Epstein, a prominent conservative law professor at the University of Chicago, said Rivkin and the other defenders of the president's legal theory are misreading the Constitution. The president has broad powers to take immediate steps to counter an invasion, he said, but has little authority to defy the will of Congress after an initial emergency has receded.

Bob Barr, a onetime Republican representative from Georgia and a former prosecutor, said the issue is whether the president can violate a law, not whether this particular program makes sense from a policy perspective in the war on terrorism.

Said Barr, ''If the American people see the conservative movement rolling over and playing dead and buying into these specious arguments by the administration -- that it's OK to violate the law as long as you do it for the right reasons and because we might have a president that we like -- then the credibility of the conservative movement on other issues will suffer greatly."