Imbalance of Power?

President Bush's acknowledgment that he unilaterally approved domestic spying is the latest piece of evidence supporting complaints that his White House operates essentially unchecked by the legislative and judicial branches.

Scott Shane writes in the New York Times: "A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency. . . .

"With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said. . . .

"But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

" 'Obviously we have to do things differently because of the terrorist threat,' said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. 'But to do it without the participation of the Congress and the courts is unwise in the extreme.' "

Barton Gellman and Dafna Linzer write in Sunday's Washington Post: "In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.

"The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress. . . .

"Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said yesterday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as 'plenary' -- a term defined as 'full,' 'complete,' and 'absolute.' "

Gellman and Linzer write that Congress in the 1970s passed the Foreign Intelligence Surveillance Act, which expressly made it a crime for government officials "acting under color of law" to engage in electronic eavesdropping "other than pursuant to statute."

But the Bush administration has argued that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

And Gellman and Linzer write: "Other Bush administration legal arguments have said the 'war on terror' is global and indefinite in scope, effectively removing traditional limits of wartime authority to the times and places of imminent or actual battle."

Democratic Senator Russell Feingold said Saturday in a statement : "The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king."