THE POWER OF THE PRESIDENT

In the new atmosphere of heightened security, numerous court orders and regulations of the 1970s, inspired by abuses of the CIA, FBI, and local police forces, were rescinded, allowing these agencies to resume surveillance of Americans without evidence that a crime had been committed. Some of these measures were authorized by Congress, but the president implemented many of them unilaterally, claiming the authority to ignore laws that restricted his power as commander-in-chief in wartime. Thus, soon after September ii, President Bush authorized the National Security Agency (NSA) to eavesdrop on Americans’ telephone conversations without a court warrant, a clear violation of a law limiting the NSA to foreign intelligence gathering.

Two centuries earlier, in the 1790s, James Madison had predicted that for many years to come, the danger to individual liberty would lie in abuse of power by Congress. This is why the Bill of Rights barred Congress, not the president or the states, from abridging civil liberties. But, Madison continued, in the long run, the president might pose the greatest danger, especially in time of war. “In war,” he wrote, the discretionary power of the Executive is extended.” No nation, Madison believed, could preserve its freedom “in the midst of continual warfare.” Madison’s remarkable warning about how presidents might seize the power afforded them in war to limit freedom has been borne out at many points in American history-from Lincoln’s suspension of the writ of habeas corpus to Wilson’s suppression of free speech and Franklin D. Roosevelt’s internment of Japanese-Americans. The administration of George W. Bush was no exception. But no other president had ever made so sweeping an assertion of the power to violate both longstanding constitutional principles, such as the right to trial by jury, and any law he chooses during wartime.

The majority of Americans seemed willing to accept the administration’s contention that restraints on time-honored liberties were necessary to fight terrorism, especially since these restraints applied primarily to Muslims and immigrants from the Middle East. Others recalled previous times when wars produced limitations on civil liberties and public officials equated political dissent with lack of patriotism: the Alien and Sedition Acts during the “quasiwar” with France in 1798, the suspension of the writ of habeas corpus during the Civil War, the severe repression of free speech and persecution of German-Americans during World War I, Japanese-American internment in World War II, and McCarthyism during the Cold War. These episodes underscored the fragility of principles most Americans have learned to take for granted—civil liberties and the ideal of equality before the law, regardless of race and ethnicity. The debate over liberty and security seemed certain to last as long as the war on terrorism itself.

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