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Bush's use of executive power

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President Bush is taking on an issue of presidential powers over which presidents have stumbled before.

At a news conference, the president said that warrantless eavesdropping targeted at foreign citizens by the National Security Agency will continue as long as the enemy threat continues. He cited the Congressional resolution of 2001 authorizing the use of force against Iraq. The president also denounced the news media for breaking the story, calling it harmful to national security.

Mr. Bush chose not to avail himself of the tool that Congress has provided for the purpose of eavesdropping - The Foreign Intelligence Surveillance Act, passed in 1978 as a reaction to President Nixon's domestic spying. That Act permits the president to apply in secret to a special court for a warrant. The administration is authorized to begin surveillance for 72 hours while waiting for the warrant, which is almost always granted.

In his defiance, there may be peril for the president, as President Nixon discovered when the House Judiciary Committee voted three articles of impeachment against him, one of them for abusing the power of three agencies - the FBI, CIA, and IRS. Nixon took the position that he was using inherent presidential powers granted by the Constitution.

The Constitution says that the president shall exercise the "executive power" and shall be commander in chief of the armed forces, but it doesn't spell out what those powers are. Some presidents have come up with what they call the "inherent power" of the presidency, which tends to be what they make it.

Historians have said that President Lincoln freed the slaves, blockaded Southern ports, and instituted a draft all without constitutional authority. President Reagan invoked "inherent powers" to justify the illegal sale of missiles to Iran and the illegal financing of the civil war in Nicaragua. Short of impeachment, the Congress has no way of stopping a willful president except to deny him funds. That, of course, is unlikely, especially with a Republican-controlled Congress.

Senate Judiciary Committee Chairman Arlen Specter promises open hearings on eavesdropping early in the new year. This is clearly an issue which is not likely to go away.

Daniel Schorr is the senior news analyst at National Public Radio.

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