Why Bush needs a new lawyer (Globe)

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ABNER J. MIKVA
Why Bush needs a new lawyer
By Abner J. Mikva | January 30, 2006

OUR COUNTRY has always struggled to find the correct balance between liberty and security. What can the government do legitimately and constitutionally to protect us from dangers while preserving our freedoms? That tension is greatest in times of crisis, whether during hot wars, cold wars, or terrorist attacks.

President Bush now argues that in the post-9/11 world there is no such tension. A president need not obey some laws because the president's ''inherent" powers trump the Congress. The Foreign Intelligence Surveillance Act and the McCain Amendment to ban torture are only advisory because Congress cannot encroach on a president's inherent constitutional authority in matters of national security.

This has never been the law. A president who defies acts of Congress for professed reasons of national security is ''breaking the law repeatedly and persistently," as former Vice President Al Gore recently charged.

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But when the civil liberties of Americans are at stake, Congress undoubtedly possesses constitutional power equal to the president's authority. As Justice Sandra Day O'Connor wrote in one case, ''Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." America's strength lies in its belief in the rule of law. Congress can change the surveillance act if new circumstances justify a legislative solution. But playing on the fears of Americans to justify unconstitutional behavior is to sacrifice the very freedoms we are fighting to preserve. President Bush should not allow Osama bin Laden to gain that victory. We can defeat terrorism with our Constitution intact.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/01/30/why_bush_needs_a_new_lawyer/