George W. Bush assured Americans this week that his administration was doing nothing illegal by maintaining a record of telephone calls made by about 200m US subscribers. But the president has already made clear that his definition of what is legal applies to virtually anything he chooses to authorise in the name of national *security.
The leak on Thursday to the USA Today newspaper revealing that the US National Security Agency was keeping a log of billions of calls made each year in America in what is surely the largest database ever assembled is troubling at many levels. It is the latest example of the administrations habit of intruding on American freedoms whether the right to privacy, habeas corpus or other ironclad constitutional protections without having obtained permission from the courts or Congress.
Following the terrorist attacks of September 11 2001, Mr Bush de*clared America was engaged in a war that had no apparent territorial or temporal limits. He also made it clear he believed it was the presidents prerogative to decide how, where and when to conduct the war on terror or any other war without recourse to Congress. Mr Bushs doctrine, which some call the new imperial presidency, strikes at the heart of Americas constitutional separation of *powers.
The implications of Mr Bushs doctrine are too manifold to enumerate here. But it is worth restating the most egregious. Since 2001 Mr Bush has decreed that it is the right of the executive alone to decide who whether American or foreign qualifies as an unlawful enemy combatant and then to detain that person without access to a lawyer or possibility of trial for an indefinite period, until death if necessary. Likewise, Mr Bush has absolved himself from following US and international laws that ban the use of torture for certain categories of people who are determined by the executive alone. Any attempt by Congress to constrain the administration by enacting new statutes is treated as advisory rather than legally binding. Mr Bush has appended more than 500 signing statements to new laws that give him the right to interpret what the law means. The most shocking example was Mr Bushs assertion of the presidents right to ignore elements of a bill enacted by Congress last December that outlawed the use of torture.
In the words of the pro-Republican Cato Institute, Mr Bushs doctrine states that, when were at war, anything goes, and the president gets to decide when were at war. Any attempt to question Mr Bushs doctrine or to divulge its operational detail to the public is portrayed as assisting Americas enemies, including al-Qaeda. The only safeguard proffered against the executives abuse of these extraordinary wartime powers is that Mr Bush can be trusted to do the right thing.
None of this is to dispute the fact that the fight against terrorism is different to the prosecution of conventional war and might necessitate the temporary curbing of certain freedoms, including the right to privacy. Most reasonable people, including judges, legislators and ordinary citizens, can agree on this. But Mr Bushs actions go much further. Ultimately, they are also self-defeating. Whether or not Congress turns Democrat in November, Mr Bush faces a constitutional backlash that is probably unstoppable. In pursuit of the imperial presidency, Mr Bush has turned himself into a very premature lame duck.
