When President Bush sought to reassure the country that his authorization of spying on Americans without warrants was a reasonable exercise of his power, he emphasized that his orders were always reviewed by the attorney general and the White House counsel.
''Each review is based on a fresh intelligence assessment of terrorist threats to continuity of our government and the threat of catastrophic damage to our homeland," Bush said in his Dec. 17 radio address. ''The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president."
The current occupants of those jobs are Attorney General Alberto Gonzales and White House counsel Harriet E. Miers. Prior to 2005, Gonzales was White House counsel and John Ashcroft was attorney general.
The current dispute over whether the president had the authority to order domestic spying without warrants, despite a law against it, has put new focus on the legal officials who have guided Bush. And the qualifications of Ashcroft, Gonzales, and Miers could become a focus of the upcoming Senate hearings on the spying decision.
Canelos goes on to explain that the three lawyers in question may not be as experienced or qualified as others who served in their positions for previous administrations. But if, as he suggests, the Senate intends to focus on their credentials in the spy hearings, the Senate will be missing the main point.
Since Sept. 11, 2001, Bush's legal advisers have cleared the way for him to hold enemy combatants without trials; eavesdrop on overseas telephone calls and e-mails; place ever-greater numbers of government documents under a veil of secrecy; imprison a US citizen indefinitely on the suspicion of terrorist links; and, according to The Washington Post, operate a secret CIA prison in an Eastern European country.
In each case, the legal official responsible for assessing the extent of Bush's powers was Ashcroft, Gonzales, or Miers.
The problem is not whether Bush's attorneys were qualified to make decisions about the extent of his power. The problem is that they made those decisions in the first place.
Nowhere does the Constitution say "The limits of the President's executive powers shall be determined by the Attorney General and other attorneys from whom the President chooses to take counsel." The Constitution doesn't say anything remotely like that.
The Constitution doesn't mention anything about the powers and duties of an Attorney General, a White House Counsel, or the Justice Department. In fact, it doesn't mention the Attorney General, the White House Counsel, or the Justice Department at all.
It does, however, address judicial powers. Article III states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority[.]
This is the issue the Senate needs to pursue in its hearings, and bring to the attention of the electorate. How did the judicial power to decide on the Constitution--and laws and treaties arising under it--migrate from the judicial branch of government to the "top legal officials" who work in the executive branch?
Mister Bush justifying his NSA spying orders on the basis of review of the Attorney General and the White House Counsel amounts to you standing in front of a judge in traffic court and saying, "But my lawyer told me it was okay to drive 150 miles an hour down I-85."