Gonzales provided yet another rationale, stretching the definition of al-Qaida: "Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

In other words, anyone can be tapped who is not a member of, or affiliated with, al-Qaida, but is unknowingly connected by "working in support."

Who would fall under the Bush guidelines? Consider the following case study: A lawyer represents a man involved in an Islamic charity that turns out to be raising funds for al-Qaida. The lawyer theoretically could be wiretapped without a warrant, detained indefinitely without charges, imprisoned in isolation, and unable to consult legal counsel. In fact, there has been such a lawyer -- who represented precisely such a client in New Jersey. The client's name was Dr. Magdy Elamir; the lawyer's name, Michael Chertoff, now the secretary of homeland security. (Chertoff represented Elamir, who owned an HMO sued by the state of New Jersey for fraud. The FBI filed a report that he had skimmed money to support al-Qaida and that he financially supported the Al Salam mosque, which "blind sheik" Omar Abdel-Rahman used as a base of operations for the 1993 World Trade Center bombing. Elamir denied any involvement with al-Qaida, but admitted funding the mosque.)

The legal justification, such as it is, for the president's domestic surveillance policy rests in the arguments made in a Sept. 21, 2001, memorandum written by John Yoo, then deputy director of the Justice Department's Office of Legal Counsel. The commander in chief, he stated, could wiretap without court permission. "The government may be justified," Yoo wrote, "in taking measures which in less troubled conditions could be seen as infringements of individual liberties." Congress, he wrote in another memo four days later, could not put "limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response. These decisions, under our Constitution, are for the president alone to make."

Yoo is also the author of memos justifying torture. On Jan. 9, 2002, he wrote a memo stating that the Geneva Conventions did not apply to detained terrorist suspects. On Aug. 1, 2002, Yoo authored another memo, signed by his superior, Jay Bybee, defining torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

These are the four known Yoo memos rationalizing expanded presidential authority. But there are at least a dozen of these documents, most of which have not yet come to light, sources close to attorneys at the Justice Department tell me. The overriding theme of them all is that the president can ignore congressional acts.

Yoo, who left the Justice Department two years ago and is now a law professor at Boalt Hall at the University of California at Berkeley, was the prolific writer. But he was not the author of the process. Nor was Gonzales, who was then White House legal counsel. Then, as now, the driving force was Vice President Cheney.

Cheney's point man was David Addington, then his legal counsel and longtime aide (back to his time in Congress). Addington was the chief writer of a memo on torture policy that argued the case of unfettered presidential power. "In light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas," the memo stated. Prohibitions "must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority." And Congress was relegated to the sidelines: "Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield." Addington is now Cheney's chief of staff, having replaced Scooter Libby.

Aboard Air Force Two, on a trip back from Iraq, the prime mover granted an interview to the traveling press. "I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Cheney. He explained that he has been anxious about "infringement on the authority of the presidency" since the Nixon White House, where he served as deputy to counselor Donald Rumsfeld. "Watergate and a lot of the things around Watergate and Vietnam, both during the '70s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," he said.

But Cheney was even more revealing in an interview on CNN on Tuesday, responding to a question from reporter Dana Bash, who sought to give the vice president every benefit of the doubt and an avenue of escape. "You talked about the fact that you briefed Congress voluntarily, that you do have a review process," said Bash. "But let's just say, in 10 years or a few years, a president is elected who doesn't want to do those things, but you've given him this kind of power. What happens then?"

"Well," Cheney replied, "it will be up to him whether or not he uses it."

Cheney's idea of the head of state invested with absolute power is a venerable one. Bush's presidency is the latest experiment to achieve it. Yoo's memos are the founding documents. But the idea lacks an American pedigree.

The original commentary on it appeared in a pamphlet published in 1776, "Common Sense," written by Tom Paine:

"But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is."

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