War Powers: Is Bush Making History?

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Judged by historical standards, Bush gets mixed marks. His detention of aliens is much less draconian than F.D.R.'s, and Bush has preached against racial scapegoating. Congress has endorsed the additional wiretap authority. Military trials for alien terrorists would go beyond World War II precedents, but not by miles. Even if constitutionally permissible, however, nonpublic, nonjury military trials may be grossly unwise, forgoing the opportunity to showcase dramatic evidence of wrongdoing as well as America's fair judicial procedures.

Hardest to defend is Bush's recent regulation allowing federal agents to eavesdrop on certain lawyer-client conversations. The regulation covers citizens as well as aliens, encompassing people not even charged with crimes, much less convicted. Bush would eavesdrop unilaterally, without any O.K. from a judge. Nothing in Congress's recent antiterrorism legislation authorizes this unprecedented regulation; indeed, leading lawmakers were not even consulted. The Executive unilateralism here recalls Harry Truman's seizure of steel mills in 1952 to guarantee supplies for the Korean War. In a landmark decision, the Supreme Court ruled against Truman because Congress had pointedly declined to authorize such seizures.

History's largest lesson is that wise wartime Presidents act in coalition with other branches of government and opposition party leaders. Acting without Congress, without the courts and without a statute or precedent nearby is more likely to get a President in hot water than to get him on Mount Rushmore.

Akhil Reed Amar teaches constitutional law at Yale and is the author of The Bill of Rights: Creation and Reconstruction