ABA urges Bush to follow the law

By LINDA P. CAMPBELL
KNIGHT RIDDER NEWSPAPERS
You might be forgiven for not hearing much about the American Bar Association's call on President Bush to follow the law in spying on terrorism suspects and for Congress to get to the bottom of the administration's flouting of a carefully crafted scheme for overseeing wiretapping.
In mid-February, when the nation's premier lawyers' group was taking a stand against warrantless surveillance of Americans, news headlines were dominated by a prominent Texas lawyer's confrontation with a different domestic threat: Vice President Dick Cheney's errant aim with a shotgun that peppered Harry Whittington of Austin with birdshot.
The ABA's resolution asked for Bush to abide by constitutional and statutory constraints on electronic surveillance within the United States and for Congress to conduct a thorough inquiry, with public hearings, of a National Security Agency eavesdropping program. You'd think the ABA's action would carry weight.
Overwhelming vote
The resolution passed overwhelmingly in the 550 House of Delegates, which governs the 407,000-member ABA.
The resolution came from a bipartisan task force led by white-collar criminal defense lawyer and former federal prosecutor Neal Sonnett and including former FBI Director William Sessions, a retired federal judge, and Suzanne Spaulding, a former assistant general counsel for the CIA.
The task force was advised by law school deans Elizabeth Rindskopf Parker of Pacific McGeorge, who was NSA general counsel under President Reagan and CIA general counsel under the first President Bush and President Clinton; and Harold Koh of Yale, an assistant secretary of state in the Clinton administration.
The resolution didn't scold, accuse or call for censure. It did point out the gaping holes in the legal rationales put forth by the White House and Attorney General Alberto Gonzales, including the far-fetched claim that Congress envisioned warrantless wiretapping when it authorized the president to use "all necessary and appropriate force" against terrorists behind the attacks of Sept. 11, 2001.
Amendment
But the ABA resolution recommended that the president, instead of bypassing the Foreign Intelligence Surveillance Act, should ask Congress to amend the 1978 law that governs foreign intelligence wiretapping in order to provide him with the powers he needs to fight terrorism.
"The issue is whether the president has the constitutional authority" that he asserts, ABA President Michael Greco said during a Fort Worth lunch meeting in late March. "If the president doesn't have the authority, then we are urging the president to get that authority" from Congress or the courts.
In a letter informing Bush of the ABA's action, Greco wrote: "We join you in the conviction that terrorism must be fought with the utmost vigor, but we also believe we must ensure this fight is conducted in a manner reflective of the highest American values."
Copies went to Gonzales, Homeland Security Secretary Michael Chertoff and White House counsel Harriet Miers.
At the time of Greco's Fort Worth visit, he hadn't received a White House response.
Surprise, surprise.
The Bush administration and some other Republicans, have a curious hate-love relationship with the ABA.
In 2001, the administration ended the longtime practice of having the ABA's Standing Committee on the Federal Judiciary vet judicial nominees before forwarding the names to the Senate Judiciary Committee. Four years earlier, Republican Sen. Orrin Hatch, then Judiciary Committee chairman, had dropped the ABA as a confirmation adviser, reasoning that it should be treated like any other political interest group.
But the White House, Hatch, et al., touted with gusto -- and no sense of irony -- the "well-qualified" ratings that the ABA committee gave to Bush's Supreme Court nominees, Judges-now-Justices John Roberts and Samuel Alito.
One might imagine that Miers, who was active in the ABA as a private attorney and State Bar of Texas president, might appreciate the significance of a cross-section of the nation's lawyers taking issue with Bush's high-handed disregard for separation of powers.
Compromise
Whether the White House is listening or not, Congress should be. A proposed "compromise" between the administration and four GOP senators that would allow warrantless eavesdropping for up to 45 days -- or even longer if a handful of lawmakers allowed it -- not only cedes too much unchecked power but bypasses the public inquiry that would enforce accountability. Judiciary Committee Chairman Arlen Specter has held hearings on a different proposal, but those sessions haven't shed much light on details of the surveillance program.
"That kind of awesome power should not reside in just one branch," Greco said. "We want our government to function the way the Constitution provides. That is for the branches to work together, not as Lone Rangers."
Linda P. Campbell is a Star-Telegram editorial writer. Distributed by Knight Ridder/Tribune Information Services.