Judging Bush 

Just as Nixon had to, this president must finally answer to the judiciary for his actions.

As the tooth-gnashing in the halls of Congress continues over the revelation that the Bush administration violated the black letter prohibition of engaging in warrantless surveillance, the final word in this debacle will obviously be issued, as it always is in constitutional crises, by the judicial system. The political process will wind its painfully slow way toward the revelation of the truth about this breach of the law, with hearings that will be hamstrung by partisan bickering, posturing for the C-SPAN and nightly news show cameras and chest thumping by the usual apologists for an administration run amok.

The party in power cannot be expected, in spite of the courage of some of its members, notably Arlen Specter, to show the political will to hold the president accountable for his unlawful conduct. If it had that will, it would call for a special counsel to investigate the president's secret program. In the meantime, the truth will come out in the marble-lined federal courtrooms of our country.

Remember that presidents only serve four-year terms, but federal judges are appointed for life. In the battle of tenure, the judges win, hands down, and it is precisely because of the independence that gives them that they feel comfortable taking on the occasionally power-hungry executive branch of our government.

It is well to remember that previous abuses by presidential administrations were first brought to light, or at least their discovery facilitated, by the judicial process. Nixon's downfall was catalyzed by the decisions of a courageous federal judge, "Maximum John" Sirica, who rejected Nixon's assertion that "executive privilege" immunized him from having to comply with a federal grand jury subpoena, a decision that was ultimately upheld by the Supreme Court. And of course, had it not been for the Supreme Court's decision in Jones v. Clinton, which allowed Paula Jones' suit against the president to proceed, Clinton might not have ever had to deal with the meaning of the word "is."

One of the most significant constitutional confrontations in history between the legislative and executive branches of government, and in many ways the spitting image of the one fomented by the current administration, occurred in 1952, when President Truman sought to nationalize the steel industry during the Korean War. Truman claimed he had the "inherent" authority as president and commander in chief to pull an end-around of the Taft-Hartley Act, Congress' manner for resolving labor disputes.

Congress had explicitly rejected a seizure provision when it considered that law (just as the current Congress rejected including domestic surveillance when it considered giving Bush the authority to use force against al-Qaeda). The Supreme Court disagreed with Truman, and in a strongly worded concurring opinion, Justice Robert Jackson uttered these now-prophetic words:

"[W]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Responding to the argument, similar to the one Bush makes (the "war on terror"), that Truman's actions were in reaction to exigent circumstances (i.e., the Korean War), Justice Jackson dismissed that argument as well: "The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic."

So let the games in the halls of Congress begin, but in the meantime, keep your eye on the halls of the federal judiciary, because that's where the issue of the effect of and responsibility for extra-judicial, warrantless surveillance by Bush and his cronies will be decided first.

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