Conjuring Nixon
The Hidden Columnists--Bob Herbert Edition (09 Jan 06)

Mr. Herbert's Monday column--The Nixon Syndrome (full column available to Times Select subscribers)--channels the stark comparison of this recently released DNC ad that posted about last week:

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."