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Jewish World Review April 3, 2006/ 5 Nissan, 5766

Nat Hentoff

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Will Congress survive an endless war? | George W. Bush, speaking in Brazil in November 2005 shortly after the Summit of the Americas, said that, "Each democracy has its own character and culture that reflect its unique traditions and history. Yet all free and successful countries share some common characteristics." One of those he named as fundamental to a free society is "the limitation of state power through checks and balances." But so far, no president in our history has more persistently dismissed the check on his powers that the Constitution places on Congress — and he is still trying to limit the oversight of the judicial branch. The most recent example of his circumventing Congress — revealed by the Boston Globe's sharp-eyed Washington correspondent, Charlie Savage — occurred when the president signed into law the reauthorization of the Patriot Act after a compromise of sorts was reached by the House and Senate.

Following the White House ceremony, as Charlie Savage reported on March 24, "(and) the reporters and guests had left, the White House quietly issued a signing statement, an official document in which the president lays out his interpretation of a new law."

As he had previously done in a signing statement, after he signed into law Sen. John McCain's amendment forbidding cruel, inhuman or degrading treatment of detainees, the new signing statement said that the president alone will decide on whether to inform Congress of how the FBI is implementing its expanded powers in this Patriot Act.

In this signing statement, overlooked by most of the press, George W. Bush declared he won't give this information to Congress if he concludes that doing so would "impair foreign relations, national security, the deliberative process of the executive or the performances of the executive's constitutional duties."

Once more, his guiding compass, the "unitary executive" powers of the commander in chief, bypasses his sworn duty to abide by the Constitution's separation of powers. Sen. Patrick Leahy, D-Vt., then made the constitutional point that, "the president's signing statements are not the law, and Congress should not allow them to be the last word ... It is our duty to insure, by means of congressional oversight, that he does so."

But the Republican congressional leadership has not successfully challenged the signing statement that almost instantly tossed the McCain amendment into the dustbin of history.

In Hamdan v. Rumsfeld, which is now before the Supreme Court, the justices will rule on the constitutional basis for Bush's military commissions and their exceedingly limited due process for detainees. His jerry-built commissions are part of what Hamdan's lawyers describe as "a dangerous and unprecedented expansion of executive authority" that, I would add, is continually decreasing individual liberties of American citizens here, including the expanded FBI's search powers with minimal or no judicial oversight.

What stays in my mind during this presidency — and the precedents it may establish for his successors — is a question asked of Bush during a press conference last year by Peter Baker of The Washington Post:

"If the global war on terror is going to last for decades, as has been forecast, does that mean we're going to see, therefore, a more or less permanent expansion of the unchecked power of the executive in American society?"

George W. Bush answered: "To say 'unchecked power' basically is ascribing some kind of dictatorial position to the president, which I strongly reject."

Of course, he has no instinct or desire to be a dictator. His problem, and ours, is that he came into office exemplifying the failure of his education to teach him the history of the Constitution and what it has taken to preserve our liberties under it. Since Sept. 11, he has taken the counsel of high-level lawyers in the Justice and Defense departments that, to protect us in the war on terrorism, his unilateral executive authority must not be interfered with by Congress or the courts.

I haven't the slightest doubt that the president sincerely, deeply believes he is entitled to this supremacy, and is continually nonplussed that certain members of Congress and of the judiciary do not understand that his overriding duty is to keep us secure as commander in chief.

As for this newest signing statement further releasing the FBI from the clearly worded Fourth Amendment in the Bill of Rights, New York University Professor David Golove, a scholar of executive powers, says of the president and his advisers:

"On the one hand, they deny Congress even has the authority to pass laws on ... subjects like torture and eavesdropping (by the National Security Agency, as well as the FBI); and in addition to that, they say that Congress is not even entitled to get information about anything to do with the war on terrorism."

Those citizens who know our history are all the more apprehensive in their awareness that the Constitution and the Bill of Rights are not self-executing.

So, what happens from now on is up to the American people. As Thomas Jefferson said in 1787, "The basis of our government being the opinion of the people, the very first object should be to keep that right."

If we don't keep that right, what are we fighting for?

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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