Friday 17 February 2006

When I cast the lone vote against the September 14, 2001, Use of Force Resolution, I believed, as I do today, that Congress had no business authorizing an unspecified war against an unspecified enemy for an unspecified period of time, and I was worried that the over-broad authority of the resolution was vulnerable to abuse.

Certainly few, if any, who supported the resolution could have believed that they were casting a vote for warrantless spying on Americans. As former Senator Tom Daschle has pointed out, Congress specifically rejected the administration's efforts to secure in the resolution free reign to conduct domestic spying. The administration therefore knew that the law prohibited them from conducting warrantless domestic spying on US citizens, and they sought to change the law and failed.

Despite administration claims to the contrary, all the evidence suggests that the president willfully broke the law in authorizing warrantless surveillance of Americans after Congress refused to grant him that authority.

What is most troubling about this is that it is not an isolated incident. We see the same pattern reflected in the president's decision, in the same stroke of the pen, as he signed Senator John McCain's amendment outlawing torture - to reserve the right to ignore Congress and authorize torture of people, if he sees fit. What is troubling is not merely the spying or the torture. Rather, by claiming to be above the law, President Bush is undermining the very thing that distinguishes us from our terrorist enemies.

What separates us from terrorists is not simply that our principles are deeply offended by the idea of torture or the murdering of innocents, but that we are a nation of laws. Our principles are enshrined in our Constitution and a system of duly enacted laws, and in a government where all are accountable and no one is above the law.

Our Constitution gives us a system of checks and balances and divided powers because our founders were bitterly familiar with dealing with an unaccountable executive and were determined that our nation should not have a king, nor any office like it.

The president and his advisers have tried to make this a question of whether we will defend our nation. This is misleading. Democrats and Republicans alike are committed to vigorously defending our nation.

The real question is whether we will just as fiercely defend those principles that define our nation and separate us from terrorists, namely our commitment to constitutional government and our respect for the rule of law.

As I was sitting at Coretta Scott King's funeral, I was struck by the bitter irony that the FISA law that the president has chosen to ignore is one that powerfully symbolizes both the risk of the abuse of executive power and the strength of our system of checks and balances.

Remember, the FISA law was not enacted to protect against hypothetical abuses. In the name of fighting communism, our executive branch perpetrated massive abuses in surveillance of innocent Americans. These abuses included the surveillance, among many others, of Martin Luther King Jr. and his wife, Coretta, as part of what the Church Commission described as "an intensive campaign by the Federal Bureau of Investigation to 'neutralize' him as an effective civil rights leader."

The only thing that redeems our nation's great shame at these abuses was that the system of checks and balances created by the Constitution's framers worked. The convening of a special congressional committee and the Church Commission's investigation ensured that there was oversight, and there was accountability. In the end, Congress produced a law that allowed us to protect our nation, our Constitution and our citizens. The president ignores that lesson at our peril.

Before I voted against the resolution that the president and his attorney general now use to claim that he is above the law, I remembered what one of the clergy members said at the National Cathedral memorial service for the victims of the September 11 attacks: "As we act, let us not become the evil that we deplore."

As I listened to Attorney General Alberto Gonzales testify before the Senate Intelligence Committee, I couldn't help but feel that he had missed the point. Our enemy is indeed listening, but what I cannot help but wonder is if they aren't smiling at the prospect that, in the name of fighting terrorism, we might unilaterally give up that which most starkly distinguishes us from them.

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