Lowering the Zenith

In 1973, as part of the Congressional effort to get our last military forces out of the Vietnam quagmire and to better prevent us getting into such involvements in the future, Congress passed the War Powers Resolution, asserting its constitutional rights regarding commitment of US forces.

In the knee jerk response to the 9/11 attacks, Congress passed a joint resolution authorizing the use of force against the attackers, saying it was doing so in compliance with the War Powers Resolution. In acknowledging the authorization of the use of force, George W. Bush asserted the position that the War Powers Resolution is not a valid restriction on the executive powers of the President.

In the week following the terrorist attacks, there was no actual debate of the proposed force resolution in Congress, though some members questioned whether a resolution was even necessary and others wondered whether some sort of declaration of war should be made. The joint force resolution as passed was for such force as “necessary and appropriate”.

During the week after 9/11, Senate Majority Leader Lott spoke of the resolution, “I believe that it's broad enough for the president to have the authority to do all that he needs to do to deal with this terrorist attack and threat. I also think that it is tight enough that the constitutional requirements and limitations are protected [emphasis supplied].”

Also during that week, Attorney General Ashcroft spoke of a need for broader eavesdropping authority, but he indicated it should come by specific Congressional authorization. He did not say it would be considered as included by implication in the joint force resolution. Press briefings at the time said, “Attorney General Ashcroft is now calling for quick Congressional action to change the law to give federal agents greater rights to eavesdrop on telephone calls. Authorities are now required to get a court order to tap phone lines. But Mr. Ashcroft believes such restrictions hamper law enforcement since suspected terrorists are able to evade wiretaps by using mobile phones, laptop computers and other state of the art technology.” And, “President Bush told reporters Sunday any changes in the law should respect Americans' right to privacy but that law enforcement needs to have new tools to fight the kind of threats the nation now faces.”

Perhaps more forthrightly, on that same Sunday after the attacks, Bush responded to a broad question about options he would use. “Q: Mr. President, what kind of military options are you considering, if you could talk broadly? THE PRESIDENT: This is an administration that will not talk about how we gather intelligence, how we know what we're going to do, nor what our plans are. When we move, we will communicate with you in an appropriate manner.”

Now it turns out Bush quickly and secretly authorized wiretapping without court warrants. Members of Congress have challenged the authority of Bush to do so, and the Justice Department, in preparation for imminent Congressional hearings on the issue, has just released a white paper primarily saying the wiretap authority was included in the joint force resolution which put the President at the “zenith” of his powers.

I think the white paper is wrong and Congress did not authorize Bush to eavesdrop as he has been doing. But I also think hearings into the matter are a waste of time. Congress should instead pass a new resolution saying that the joint force resolution was not intended to allow such eavesdropping without warrants, and that Congress now specifically indicates such practice can only be authorized by specific Congressional legislation, such as Attorney General Ashcroft indicated at the time the force resolution was passed.

As an amateur etymologist, I find the use of the word “zenith”interesting. If it is not that familiar to Americans, Arabs should better understand it, since it is Arabic in origin, meaning the upper pole of the celestial horizon - a location I am sure Bush feels is appropriate for him. The opposite, low end of the pole is the “nadir”. I wonder if that is the origin of the name of the son of Lebanese immigrants to America -Ralph Nader- subject of this interestingly different biography.