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The Truman precedent for Bush's eavesdropping

WASHINGTON -- On the morning of April 9, 1952, American flags flew above 88 steel mills across the country, signaling a change in management. The president of the United States, Harry S. Truman, had seized control of the mills, claiming that the intransigence of the private owners would lead to a strike that would cripple US efforts to win the Korean War.

''The president has the power to keep the country from going to hell," Truman told his staff, according to David McCullough's 1992 biography.

Truman was wrong, according to the Supreme Court, in its most extensively reasoned decision charting the limits of presidential power.

The so-called ''steel seizure case" is suddenly in the news again because President Bush is now saying that his powers as president and commander-in-chief -- the justifications cited by Truman -- permit him to authorize wiretaps on US citizens.

Luckily for Bush, Americans who are being wiretapped don't know they're being bugged, and thus can't challenge his powers in court. But when Congress holds hearings on whether the president has exceeded his powers, the Supreme Court's ruling in the steel seizure case will be the closest thing to settled law on the matter.

And the story of the seizure of the steel mills isn't necessarily comforting to Bush.

Truman, like many presidents, tended to view his critics as being incapable of seeing the national interest. And by early 1952, Truman had a lot of critics. His favorability had plunged below 30 percent, largely because of his handling of the Korean War, and he could no longer count on Congress's support.

In addition, his distrust of corporations -- which dated back to his time as head of a senatorial committee investigating World War II profiteering -- led him to believe that owners of steel companies were pursuing policies that would hamper the war effort. The steelworkers' union was engaged in bitter negotations for pay increases, but management seemed only too willing to accept a strike.

By some accounts, Truman feared that a strike would be used by the owners to drive up prices; the military, in the midst of a munitions buildup, was by far the biggest customer of steel, and would be the biggest victim of a strike.

Congress considered taking action to block the strike but did not, though the Taft-Hartley Act would have allowed Truman to order a three-month ''cooling-off" period.

Declaring that both sides were sufficiently deadlocked as to make a cooling-off period useless, Truman ordered a government takeover of the mills. He said American lives depended on it.

Truman said he was acting to avert a wartime emergency. He cited Article II of the Constitution, which says ''the executive power shall be vested in the president," and that the president ''shall be Commander-in-Chief of the Army and Navy of the United States."

The Supreme Court declared that Truman had exceeded his authority, but its inability to reach a consensus reflected the extraordinary difficulty of setting constitutional boundaries for a president's power. Three justices filed their own concurring opinions, suggesting different ways to gauge the limits of presidential power. Three justices dissented.

The majority opinion, by Justice Hugo Black, concentrated on separating the president's powers from Congress's powers. Black made much of the fact that Congress could have chosen to seize the mills and did not, suggesting Truman was usurping Congress's ''lawmaking power."

The likely question for George W. Bush will be: Why not seek congressional approval for wiretapping terrorist suspects without judicial warrants? Given that so many other surveillance mechanisms were sweepingly approved by Congress in the 2001 Patriot Act, why not include warrant-free wiretaps?

Perhaps sensing the need to address this question, Attorney General Alberto Gonzales said yesterday that he believes Bush's wiretapping power came along with Congress's grant of authority to pursue the perpetrators of the Sept. 11, 2001, attacks. But he also noted that when the president consulted members of Congress about a separate wiretapping bill he was told that there would be so much debate that terrorist suspects would be tipped off.

So Bush acted alone.

It's hard to predict whether a case challenging Bush's wiretaps might ever make it to the Supreme Court; it's even harder to predict how the court might vote.

Truman fully expected the court to support him, and was crushed when it did not. The steel mills went on strike for seven weeks, dramatically curtailing production of munitions.

It's unknown whether the strike caused any lost lives on the battlefield.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.

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