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Why Bush needs a new lawyer

OUR COUNTRY has always struggled to find the correct balance between liberty and security. What can the government do legitimately and constitutionally to protect us from dangers while preserving our freedoms? That tension is greatest in times of crisis, whether during hot wars, cold wars, or terrorist attacks.

President Bush now argues that in the post-9/11 world there is no such tension. A president need not obey some laws because the president's ''inherent" powers trump the Congress. The Foreign Intelligence Surveillance Act and the McCain Amendment to ban torture are only advisory because Congress cannot encroach on a president's inherent constitutional authority in matters of national security.

This has never been the law. A president who defies acts of Congress for professed reasons of national security is ''breaking the law repeatedly and persistently," as former Vice President Al Gore recently charged.

President Bush now campaigns that Congress cannot impede his inherent powers to protect Americans. Bush asserts an unrestricted right to conduct warrantless domestic spying, even though the surveillance act forbids this. Likewise, the administration brazenly asserts that the president possesses the authority to mistreat detainees, even after signing a law banning torture.

As criticism of this scofflaw behavior has mounted, Bush's lawyers have come up with fatuous defenses. First they argue Congress authorized the president's use of the National Security Agency for domestic spying through the 9/11 Resolution, which was passed after the terrorist attacks on New York and Washington. Then the president argues that he wasn't defying Congress because he told a few of them what he was doing. The administration needs some new lawyers. The claim that Congress authorized spying on Americans when it voted for the use of force after 9/11 is preposterous. Constitutional scholars from both the left and right agree that it cannot remotely be so interpreted.

In the case of the Foreign Intelligence Surveillance Act, Congress carefully balanced the liberties protected in the Bill of Rights with the need for surveillance of foreign enemies. To argue that Congress cannot place any limits on the president's ability to conduct a war on terror, as the Bush Justice Department argued in its infamous ''torture memorandum," is absurd. It is especially dangerous when the president ignores a statute that deals with the core liberties of US citizens.

The Bush administration's effort to defend its actions by claiming that the Clinton administration engaged in similar abuses is patently false. In 1993 President Clinton asserted inherent power to justify a warrantless physical search because the surveillance act was silent on the issue. At that time, the act required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. As a result of the Ames case, the law was changed to cover physical searches, which President Clinton signed into law.

The courts have traditionally been reluctant to intervene when the president's constitutional powers and Congress directly collide. Supreme Court Justice Robert H. Jackson's famous opinion in the Steel Seizure case remains the governing framework. In that case, in reasoning that President Truman exceeded his powers by seizing steel mills as part of his Korean War effort, Jackson wrote that although the president has some inherent powers, those powers are at their ''lowest ebb" when the Constitution also vests Congress with authority. For example, the Constitution gives Congress the power to prescribe rules for the regulation of the armed and naval forces, and so if a statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the president must follow that dictate. (Constitutionally, the president must ''faithfully execute the laws.")

When Congress has no constitutional authority, statutes limiting the president's inherent authority may have less or no force. If Congress enacted a law requiring the president to conduct military operations in a particular manner, a president might correctly disregard that law.

But when the civil liberties of Americans are at stake, Congress undoubtedly possesses constitutional power equal to the president's authority. As Justice Sandra Day O'Connor wrote in one case, ''Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." America's strength lies in its belief in the rule of law. Congress can change the surveillance act if new circumstances justify a legislative solution. But playing on the fears of Americans to justify unconstitutional behavior is to sacrifice the very freedoms we are fighting to preserve. President Bush should not allow Osama bin Laden to gain that victory. We can defeat terrorism with our Constitution intact.

Abner J. Mikva was a Democratic representative from Illinois who later served as chief judge of the US Court of Appeals for the District of Columbia and as White House counsel.

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