Jack Rice - Blog

Jack Rice is a criminal defense trial lawyer who provides legal advice to those charged with crimes in Federal and Minnesota State courtrooms.


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Could President Bush Make President Nixon's Actions Legal?

President Bush has ordered the NSA to look at Americans’ phone records. And according to a result poll, only 51% of Americans have a problem with the NSA looking at these records without first getting a warrant. This is an outrage! The problem is that the American people are being asked the wrong question. Really!

Imagine if they had been asked this question: Should our Commander in Chief have the right to unilaterally decide when to tap phones? In order to answer this question, we need to stop the rhetoric and look at the ramifications.

The President believes that he must do whatever is necessary to protect us from terrorism. If we allow him to make the call about tapping phones without a warrant, and without Congressional oversight, we will establish this precedent that allows all Presidents to make the call, without a warrant and without Congressional oversight.

Now, let us assume that President Bush’s motivations are pure. Let us assume that he truly wants to protect us. Wants to keep us safe from terrorism. So, we go along. After all, he does seem earnest.

Now, in 2008, President Bush leaves office and somebody else is elected. At this point, we have no idea who it is, but here is one thing that we do know. The new President has the right to listen to Americans’ phone calls whenever he wants to do so. And there is no requirement that he get a warrant. And Congress can’t say a thing about it. We have established the precedent. Remember?

If this new President’s motivations are pure, we are fine. He or she will do what must be done to protect us from terrorism and will do everything necessary to protect our civil liberties. But what happens if our new President’s motivations are not so pure? What happens if our new President is a scoundrel?

Let me give you a hypothetical. Imagine a President who is fighting a war. There are men and women in harm’s way. And this President is doing everything that he can to win this war.

Now, imagine somebody trying to weaken this President. No. Imagine somebody trying to challenge this President’s authority. Consider what this does overseas for our fighting men. Consider what this does to the status of a sitting President amongst his friends and foes while the war continues.

Wouldn’t it be a good idea for this President to find out about what this troublemaker is doing? Wouldn’t it be a good idea to find out exactly what this rabble rouser is planning? Wouldn’t it be a good idea to tap some phones in order to protect the people of this country? To protect the troops? And ultimately, to protect the President? Well, of course it would.

Now, tell me. Wasn’t this the very thinking for President Nixon when he made the decision to tap phones at the Watergate Hotel. To attack against his political enemies in the Democratic party.

But there would be one difference between Nixon and this new hypothetical President and all future Presidents. All future presidents could do exactly what Nixon did, except legally, because presidential power will have expanded under President Bush.

Remember the question? Should our Commander in Chief have the right to unilaterally decide when to tap phones?

The problem with the NSA question is that we need to look at it from a non-partisan perspective. And as importantly, whether or not the President has good intentions is irrelevant. The only question is whether the President, any President, should be able to do what he wants, when he wants, and how he wants without anybody saying a word. If you are a Republican or a Democrat, don’t forget, there will be an opposing party president in the White House someday.

Do you want to give them the power?