It may come as a surprise to President Bush that under our constitutional system no one, not even a president, is above the law.

Bush has used the 9-11 attacks as his carte blanche to initiate domestic spying on Americans without a court warrant in pursuit of terrorists, although the law is very clear that he needs court approval.

Even some of his Republican supporters think he has overstepped his authority. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, has announced plans to investigate.

Congress and the public in recent weeks have been stunned to learn that Bush has issued a secret order to the National Security Agency empowering it to listen in on the private conversations of Americans with suspected links to al-Qaida.

This completely bypasses the procedure that Congress established to prevent the abuse of government surveillance powers. That procedure was spelled out in the 1978 Foreign Intelligence Surveillance Act (FISA), which set up a secret federal court that the executive branch is supposed to ask for permission before eavesdropping on Americans.

Bush admitted at a news conference last Monday that he has authorized electronic spying by the NSA on Americans without seeking that permission. He claimed that he has the legal power because of his constitutional responsibility as commander in chief and because of the Sept. 14, 2001, congressional resolution authorizing the president to use all necessary and appropriate force in the battle against terrorists.

Bush insisted that he was absolutely within his rights to wiretap on the home front without a warrant.

There is no reason why the administration cannot seek permission from the FISA court, which is empowered to issue warrants retroactively within 72 hours of the surveillance. This negates the administration argument that it bypassed the court to avoid any delays in pursuing a suspect.

The Washington Post reported that U.S. District Court James Robertson, a member of the FISA court, has resigned in protest against Bushs end run.

The surveillance program is highly classified — and Bush said he intends to keep it that way, despite the uproar in Congress over the federal intrusion into private lives.

Were at war and we must protect Americas secrets,

Bush said. He also indicated that the Justice Department is hunting for the leakers who revealed the secret program to The New York Times. He called the leaks a shameful act.

In comments to reporters en route to Pakistan, Vice President Dick Cheney bemoaned the restraints put on presidents in the aftermath of the Vietnam War and the Watergate scandal, both of which involved flagrant illegalities and massive deceits by chief executives.

Cheney said he believed in a strong robust executive authority and I believe the world we live in demands it. He added it was no accident that the U.S. has not been hit by a terrorist in four years.

He also warned that there may be a political backlash against those who oppose the administrations anti-terror strategy.

The president and I believe there is a hell of a threat, he said.

He claimed that the White House helped protect presidential power by keeping secret the names of people he consulted on his task force on energy policy. The Supreme Court upheld the White House right to have unfiltered advice, he noted. In this case, that advice appears to have come from Cheneys cronies in the oil industry.

Past presidents have asserted that their presidential power gives them the authority to ignore Congress. In 1952, the Supreme Court put President Harry S Truman in his place when he ordered a federal takeover of the steel industry to prevent a disruption of the flow of U.S. weapons during the Korean War. Truman argued that his role as commander in chief gave him that authority.

Justice Robert Jackson wrote that a presidents power was at its lowest ebb when he takes measures incompatible with the expressed or implied will of Congress.

Jackson also said with all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law and that law be made by parliamentary deliberations

Bush is learning that there are limits to presidential power, especially when he oversteps his constitutional bounds.

Helen Thomas writes for Hearst Newspapers.

© 2005 Oakland Tribune