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(HOST)Two law suits have been filed to stop President Bush’s authorization of listening in on Americans’ phone calls here at home. Commentator Peter Gilbert clarifies the Constitutional and political issues involved.

(GILBERT) The debate about President Bush’s domestic eavesdropping program has focused on two main points: the need for such surveillance and its legality. Those are two separate issues, and they should not be confused.

Some people think that times of crisis allow for the use of powers by the national or state government, president or governor that would otherwise violate the Constitution. But that is simply not the way our Constitution works. An emergency does not – and under our Constitutional form of government, cannot – justify violating the strictures of the Constitution.

If, however, a President has certain powers that haven’t been used before, a crisis may cause him to use them. President Bush argues that he has the inherent power as commander in chief to authorize warrantless wiretaps, and that a Congressional resolution passed three days after 9/11 authorized him to use “all necessary and appropriate force” against the terrorists responsible. He also asserts that the eavesdropping violates neither the Fourth Amendment’s prohibition against unreasonable searches nor a 1978 law governing wiretaps.

In the months ahead, our courts and country will be asked to determine whether the commander in chief has the inherent power to do all he deems necessary to keep our country safe. And if he does, what are the limits to that power?

Strictly in terms of Constitutional analysis, if the President does not have that power, it wouldn’t matter that the threat of terrorist attacks is real. It wouldn’t matter if surveillance is narrowly targeted and focused on really bad people. Nor could the eavesdropping be justified by a promise not to use the power much, and to use it wisely. If the president doesn’t have the power, under the Constitution, he can’t do it.

But there is also a political reality. There may be a difference between what a president is authorized to do and what he can get away with doing. After all, President Jefferson thought he might be impeached for purchasing Louisiana, and President Andrew Jackson famously ignored the Supreme Court’s ruling in the Cherokee Indian Removal cases, allegedly saying, “The Chief Justice has rendered his decision; now let him enforce it.”

If the eavesdropping policy becomes wildly unpopular, the President may backpedal – because he doesn’t want his party to lose Congressional seats in November’s midterm election. Otherwise, he may choose to continue the domestic surveillance until the Supreme Court or the Congress tells him he can’t. It may prove significant, then, that his last two Supreme Court nominees believe in the “unitary executive theory,” which holds that the President, not just the Supreme Court, can interpret laws and even the Constitution and decide for himself whether he is violating them. If the threat of impeachment is the only impediment to a President doing what he wants, any President knows he has lots of latitude to conduct policy as he sees fit.

This is Peter Gilbert in Montpelier.

Peter Gilbert is the executive director of the Vermont Humanities Council. He spoke from our studio in Montpelier.

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