Bob Herbert: The Nixon Syndrome

Reprinting the whole article from behind the NYT firewall, till that paper gets a new publisher or some real accountability.

Whether he knew it or not, President Bush was faced with a crucial philosophical choice in the frightening and chaotic aftermath of the Sept. 11 attacks.

He could have followed the wise counsel of Edward R. Murrow, who memorably told us, "We cannot defend freedom abroad by deserting it at home." But he didn't. He chose instead to follow the disturbing course mapped out by Barry Goldwater, who insisted, "Extremism in the defense of liberty is no vice ... moderation in the pursuit of justice is no virtue."

That choice changed the character of America for the worse, leading (like a character's tragic flaw in an ancient drama) to the mindless invasion and occupation of Iraq; the imprisonment without trial of thousands of so-called terror suspects, who were denied the right to protest their innocence or confront their accusers; the now-infamous torture memo from the Justice Department; the abuses at Abu Ghraib; the reprehensible practice of rendition, in which individuals are kidnapped by U.S. officials and handed over to regimes known to specialize in torture; the creation of super-secret C.I.A. prisons - the dungeons of the 21st century; and, as recently revealed, the president's decision to authorize illegal eavesdropping - spying - on American citizens.

The president has been cavalier about the profound issues embedded in his radical makeover of America. Perhaps he doesn't understand them. As the controversy grew over the warrantless eavesdropping on U.S. citizens by the National Security Agency, Mr. Bush, apparently annoyed, said at a press conference, "The fact that we're discussing this program is helping the enemy."

Well, Mr. President, one of the great things about democracy American style is that important national issues are always subject to a robust national discussion. And few things are more important than making sure that a president with a demonstrated tendency to abuse the powers of his office is not allowed to lay the foundation for the systematic surveillance of the American people.

For a president - any president - to O.K. eavesdropping on U.S. citizens on American soil without a warrant is an abomination. First, it's illegal - and for very good reasons. Spying on the populace is a giant step toward totalitarianism. In the worst-case scenario, it's the nightmare of Soviet-style surveillance.

Related to that is the all-important matter of the separation of powers, which is the absolutely crucial cornerstone of our form of government - our bulwark against tyranny. An elaborate system of checks and balances (you need a warrant from a court to wiretap, for example) prevents the concentration of too much power in any one branch, or any one person. Get rid of the checks and balances and you've gotten rid of the United States as we've known it.

If President Bush wants to spy on Americans, let him follow the law and get a warrant. He's the president, not the king. The president cannot simply do as he pleases. Richard Nixon unleashed the dogs of domestic surveillance in the 1970's, and that played a major role in the constitutional crisis that traumatized the nation and led to the collapse of his presidency.

Nixon was out of control, so Congress and the courts stepped in. Threatened with impeachment, he resigned his office and left town. Checks and balances.

President Bush argues that the enemies of the United States are so evil and so devious that he is justified in throwing off the legal constraints that might have bound previous presidents - including such important constraints as the ban on warrantless eavesdropping contained in the 1978 Foreign Intelligence Surveillance Act.

If a president thinks a law should be changed, he can go to the American people via Congress and seek such a change. This president gave the back of his hand to FISA, deciding in secret to ignore it.

In doing that, Mr. Bush essentially declared that the checks and balances do not apply to him, that he is above the law, that he knows better than the likes of Madison, Jefferson, Hamilton et al.

In doing that, he aligned himself instead with Richard Nixon, who had his own notion of the separation of powers. That notion was best expressed in Nixon's chilling comment:

"When the president does it, that means that it is not illegal."