n a 1977 interview with David Frost, Richard Nixon made a comment that became seared in the American psyche as a perfect example of how a president must not treat the office. Frost asked Nixon if he believed a president is entitled to act illegally if he believes it is in the best interest of the nation. Nixon replied, "When the president does it, that means that it is not illegal." It was a comment that displayed the contempt Nixon had for the law—and America could be thankful that he was not in a position to continue turning that contempt into presidential policy.

After a series of extraordinary events last month, the same unfortunately cannot be said about the person who currently occupies the Oval Office. In a stunning New York Times story on December 16, America learned that "President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States . . . without the court-approved warrants ordinarily required for domestic spying." The Times then noted that "some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches." (Translation from Times-ese: people involved know it is illegal.)

Nixon waited a few years after Watergate to disclose his sheer contempt for the law. Bush, by contrast, waited less than 24 hours. The Associated Press noted that instead of admitting guilt—or even fabricating a serious legal justification—Bush said "he has no intention of stopping his personal authorizations of a post-Sept. 11 secret eavesdropping program in the U.S." It also noted that "Bush said he had reauthorized the program more than 30 times since the terrorist attacks of Sept. 11, 2001, and plans to continue doing so."

To be sure, broad, happy-sounding phrases were trotted out by the White House to reassure Americans about the legality and benign consequences of the president's actions. "Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans," reported the Times in its December 16 story. Bush himself claimed his actions were "consistent with U.S. law and the Constitution." Yet he provided no detail as to how ignoring the requirement for search warrants—a requirement vested in the Constitution's "search and seizure" doctrine—is anything but inconsistent with federal law, and thus unconstitutional.

But then, if you read the news carefully, it is clear that administration officials never really thought that what they were doing was legal in the first place. "President Bush did not ask Congress to include provisions for the NSA domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation," the Times stated at the very end of its piece. Why? Because, as the Times noted, the White House knew "the proposal would be certain to face intense opposition on civil liberties grounds."

That's right. At the same time that administration officials were claiming they really believed Bush's actions were legal, Bush in fact knew that he had to ask Congress for statutory approval first. However, he specifically decided not to, because he knew Congress would refuse. He couldn't get what he legally needed to subvert Americans' civil liberties, so he decided to pretend he didn't need anything at all. The result was a new White House policy that mixed two well-known shibboleths: the military's homosexuality policy, and Nike's marketing slogan. Only the policy had nothing to do with gay soldiers or sneakers. It was "Don't ask, don't tell—just do it," a dangerous doctrine indeed.

Within hours of the New York Times's release of its first story about the domestic spying, it became clear that the White House's legal explanations were falling flat. Administration officials claimed with a straight face that the post-9/11 congressional resolution authorizing the president to pursue Al Qaeda gave Bush the authority to ignore the Constitution and federal statutes. Not only is that reasoning insultingly preposterous, but during the original crafting of the resolution and congressional debate on it (which courts could later use to interpret congressional intent), lawmakers of both parties explicitly warned the White House that the resolution did nothing of the kind.