The Historical Context and Feingold's Censure Motion

I have long argued that the only precedent in American history for Bush's behaviour in illegally wiretapping American citizens is that of Richard Nixon.

In this article, John Dean, Nixon's former White House lawyer, points out how shaky Bush's claims to be acting within the law really are. He argues, "If this issue goes to court, Bush should worry. Even Republican-appointed judges would have to comprise their judicial integrity to rule in his favor."

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President George Bush continues to openly and defiantly ignore the Foreign Intelligence Surveillance Act (FISA) -- the 1978 statute prohibiting electronic inspection of Americans' telephone and email communications with people outside the United States without a court-authorized warrant. (According to U.S. News & World Report, the President may also have authorized warrantless break-ins and other physical surveillance, such as opening regular mail, in violation of the Fourth Amendment.)

Bush's position is that he does not need Congressional approval for his measures. Even he does not claim that Congress gave him express power to undertake them, but he does claim that Congress indirectly approved such measures when it authorized the use of force to go after those involved in the 9/11 terror attacks on the United States. He also argues that, in any event, approval was not necessary - for he argues that he has such authority under Article II of the Constitution, as the chief executive, and Commander in Chief, charged with faithfully executing the laws of the land and protecting the Constitution.

These arguments are hauntingly familiar to this observer.

No one can question President Bush's goal: Protecting Americans from further terror attacks. But every American should question his means: Openly defying a longstanding statute that prohibits the very actions he insists on undertaking, when done in the very manner he insists upon doing them.

In some two hundred and seventeen years of the American presidency, there has been only one President who provides a precedent for Bush's stunning, in-your-face, conduct: Richard Nixon. Like Bush, Nixon claimed he was acting to protect the nation's security. Like Bush, Nixon broke the law - authorizing, among other things, illegal wiretaps.

Ironically, a stronger case might be made for Nixon's warrantless wiretaps, than for Bush's.

Nixon's were installed to track leaks of national security information relating to the war in Vietnam. (He never found the leaker.) He pursued domestic intelligence by illegal means because he believed - based on information from President Lyndon Johnson - that communists had infiltrated the anti-war movement. (No such evidence was ever found.) In addition, he believed that extreme measures were necessary to deal with domestic terrorists, who were responsible for hundreds of deadly bombings. (This is the same argument Bush makes today.)

Nixon also claimed he was only doing what his predecessors had done. That was not untrue - but what had, in the past, been the exception to the rule became standard operating procedure under Nixon.

Bush, however, can only claim one predecessor for his actions: Nixon. And, of course, he has not made this claim - for Nixon was forced from office because of his defiance of the law.

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