Rule of Law

Is the executive branch justified in claiming broad powers, powers that may go against laws passed by Congress?

Is the president above the law?

The question seems almost rhetorical, inviting a strong “no.” Our rule of law demands that the powers of the three branches of government be mutually respected.

But the Bush administration’s secret National Security Agency (NSA) surveillance program is based on the assertion that the president can ignore congressional actions. By circumventing the Foreign Intelligence Surveillance Act (FISA) in authorizing NSA spying, the president is stating he is above the law.

Consider also:

• The president asserted that he is not bound by a law outlawing the torture of detainees -- even as he signed the bill into law.

• The Pentagon has spied on Americans exercising their First Amendment rights. Vermont peace groups were among those monitored.

• ACLU Freedom of Information Act requests have revealed that the FBI’s Joint Terror ism Task Forces have been investigating activists who work on issues ranging from affirmative action to environmental rights.

• The NSA has reportedly gathered millions of Americans’ phone records from private phone companies, including Verizon, the major phone company in Vermont.

Some 30 years ago, Congress passed laws that expressly prohibited government spying on American citizens without a warrant. To prevent the new law from undermining foreign intelligence operations, Congress also adopted the 1978 FISA law, establishing a secret court to oversee the use of wiretaps against agents of a foreign power.

The FISA court has not posed a hurdle for intelligence officials. Since 1979 it has received more than 19,000 requests for electronic surveillance and physical searches, and rejected only four.

The government can even begin surveillance without authorization and submit an affidavit to the FISA court for approval retroactively.

The rule of law must be respected. Read six myths about claims for broad executive powers, and the realities behind them, in the document, "Is This Your America?" prepared by the ACLU of Massachusetts.

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