‘Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed.” Those are the words of President George Bush on April 20, 2004. He reiterated them in a press conference the following July: “The government can’t move on wiretaps or roving wiretaps without getting a court order.”

In both cases he was referring to the Patriot Act, which expanded the federal government’s powers for surveillance in the war on terror. But his statements were broad ones, designed to reassure Americans that their constitutional rights were protected, and we now know the president was not telling the truth.

It turns out the president has authorised thousands of wiretaps of American citizens’ phones without any court order for the past four years, clearly violating a 1978 law that set up a special court to monitor and approve such taps.

The wiretaps were restricted — or at least we are told they are restricted — to domestic recipients of foreign phone calls, and so could be viewed as falling within the remit of the president’s foreign policy, rather than his domestic one. They are also unobjectionable to most Americans. A recent poll showed 64% were fine with wiretapping Americans if they might have contacts with terrorists abroad.

When the news broke before Christmas, the administration quickly explained that it avoided the court because speed was of the essence in fighting terrorism. But the court was set up to examine such taps retroactively if necessary and presented no impediment to quick monitoring of possible terrorist communication. So what was going on? Why not simply ask Congress in the days after 9/11 to adjust the law? Or use the same court previous presidents had?

The answer has to do with the Vietnam syndrome. No, I don’t mean the idea that the Vietnam war traumatised America so deeply that it deterred the use of military force for a generation. I mean the other Vietnam syndrome: the one held by conservative supporters of the Vietnam war, men and women who were outraged by the way in which Congress challenged the president in that previous war and are determined to restore presidential power to its pre-Vietnam condition.

Ignoring the 1978 law, bypassing Congress, and wiretapping American citizens’ phones by presidential prerogative were deliberate policy shifts by Bush. Practically speaking, they may have been unnecessary, even pointless. But in the mind and psyches of Donald Rumsfeld and Dick Cheney, it was payback time.

Call it Nixon’s revenge. The combination of Watergate and Vietnam created an environment in which executive power was deemed too dangerous to be trusted. President Ford, for whom Rumsfeld also worked, inherited a crippled presidency. Carter brandished his constitutional crutches as a matter of pride. But many conservatives seethed and waited a long time for a chance to reverse what they saw as a dangerous concession to the legislative branch.

It’s clear now that 9/11 was seen by Cheney and Rumsfeld not simply as a catastrophe but as an opportunity. Just as Karl Rove shrewdly exploited the war to divide and defeat the Democrats, so Cheney and Rummy saw a chance to reverse decades of post-Vietnam executive branch erosion.

The war against terror, they argued, was an opportunity to insist the president was answerable to no court and no legislature in war-making. If he found laws that inhibited his range of action, he could simply ignore them. As commander-in-chief he wasn’t so much above the law as he was the law. The brightest legal stars in the conservative intelligentsia were drafted to write legal memos justifying an extraordinary expansion of presidential power. He could ignore any treaties; he could violate any US law; he could upend decades of military justice; he could tell the UN to stuff it. And he did.

If you wonder how the US military got away with violating American law and torturing detainees in secret sites, wonder no longer. In wartime, Bush’s lawyer John Yoo argued, the president could authorise the torture of anyone. In a recent debate at Notre Dame University, Yoo even claimed no treaty or law could definitively prevent the president from authorising the torture of a terrorist’s child if he thought it was necessary for national security. If the president could legally and constitutionally do that, wiretapping American citizens is a no-brainer.

The great paradox of the Bush presidency is why a wartime commander-in-chief decided, in an hour of national emergency, not to ensure maximum consensus behind the war but in fact to push the very limits of ideological and partisan combat. The wiretaps are, to my mind, unobjectionable. In a war where intelligence is vital, where the US has terrible human intelligence but superb technological capacities, it makes a lot of sense to expand phone surveillance.

But when you could have done all of that in line with precedent and under existing law, why take this moment to push the constitutional envelope? Why undermine public trust and bipartisan consensus when you gain nothing but making an old point in an ancient, bitter argument?

The added irony is that Bush’s unilateral expansion of presidential power has backfired. His insistence on the right to torture detainees deeply wounded American moral standing, outraged allies, set back democratisation in Iraq, and yielded useless intelligence. Moreover, the president was forced into a humiliating defeat in December when Congress insisted that detainees be treated humanely.

Congress refused in the same month to extend the Patriot Act and will re-examine the issue in the next few weeks. Many Republicans are troubled by some of the powers now granted to the president in a war that has no formal end-point and no formal enemy.

On the bright side, of course, Rummy and Cheney get to stick their fingers in a few judges’ and senators’ and liberals’ eyes.

They’ve waited three decades to get their revenge on all those Vietnam peacenik hippies; and they’ll be damned if they give an inch now. Who says old men don’t bear grudges? And who says they don’t eventually get to carry them out?

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