February 18, 2006 [LINK]

Checks and balances in wartime

I'm well aware of the uproar over the President Bush's extra-legal authorization of wiretaps of terrorist suspects, but this is one of those issues where I fall squarely in the middle, preferring to wait and see. I am concerned about the Chief Executive overstepping his rightful prerogratives, but thus far I have seen no cause for panic over the alleged erosion of constitutional protections. For those of us who acknowledge that we are in a real war (albeit a shadowy one), it seems obvious that preventing another urban holocaust should be the top priority.

Recent news items have made me start to wonder, however. The Justice Department's Office of Professional Responsibility has begun to investigate the Department's role in approving the wiretapping by the National Security Agency. New Attorney General Alberto Gonazalez is on the hot seat. The White House has been arguing that the Foreign Intelligence Surveillance Act of 1978 does not apply to monitoring communications in which one party is out of the country. Some would argue, but I think that is reasonable. The other day, however, I heard an audio clip from 2004 (I think) in which Bush tried to ease people's fears by declaring that all wiretapping in this country was being done under a court order, under the provisions of FISA. Sounds like a 180-degree reversal to me. At govexec.com (hat tip to Connie), Shane Harris (a National Journal writer) scrutinized the White House position that the "Authorization for Use of Military Force" passed by Congress soon after 9/11 superseded the provisions of FISA:

In a January open letter to Congress, 14 legal scholars and former government officials wrote, "The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no."

A column by George Will in Thursday's Washington Post ("No Checks, Many Imbalances") harshly criticizes Bush for that flat-out contradiction, raising further doubts in my mind. Will notes the irony that Bush insists on appointing judges who interpret the laws and Constitution in very strict fashion, and wonders why Bush is so worried about renewing the Patriot Act, given his past willingness to circumvent Federal statutes. Will concludes by urging Congress to craft new laws that grant the necessary emergency powers to the President without lending legal support to the Bush administration's cavalier attitude toward FISA. That will be a delicate balancing act.

We need to make a basic distinction here, as Will hints at, between whether an action was appropriate under the circumstances, and whether it was properly justified. Relatively few people would dispute that occasional "on-the-spot" wiretaps are necessary to stop terrorist attacks, which leaves us with a fairly clear choice: Do we modify existing laws to accommodate current practice, to keep transgressions to a minimum, or do we get used to ignoring the law in the name of national security? The latter course is a very slippery slope, and there is no excuse for habitual exercise of "emergency" powers; after all, that is how dictatorships in Latin America and elsewhere usually got started. Could that happen here? It depends whom you are asking, and which party controls the White House. To my mind, the polemics over this very serious issue highlights, once again, the "Liberal-Conservative Conundrum" regarding the effects of war, as explained by Bruce Porter (War and the Rise of the State, 1994): Liberals tend to hate war but are quick to take advantage of it to promote their social reform agendas, while conservatives tend to be gung-ho but fear that social traditions will be undermined by the mass collectivization that military mobilization brings about. Folks on both the Right and Left are pulling their hair out in frustration over the role reversal in which post-9/11 history has placed them. It also reinforces my belief that it was a big mistake by Bush to ask Congress for a "blank check" discretion to launch war, rather than a formal declaration of war against Iraq. That would have erased any doubt in people's minds about whether this is a real war or not, and it would have set a higher standard for achieving a final legal resolution of the conflict.

Here's another way to look at the issue: How would Republicans feel if Hillary Clinton were president and was asserting such powers? A pretty scary thought, and not implausible either. So, the next time you hear the usual pro-Bush radio pundits talking about the President's "inherent power" as Commander in Chief in war time, imagine how they would react to such an assertion by a Democrat president. What goes around, comes around. That's why conservatives have traditionally favored limited government: It minimizes the downside risk when you lose the election.

Warner off to a slow start

Mark Warner, the ambitious, fresh-faced millionaire businessman -- and Democrat! -- who recently stepped down as governor of Virginia, is having a hard time adjusting to national politics. According to PoliticalDerby.com (hat tip to Steve Kijak), he has fallen in rank from #4 to #5 in the race for the 2008 Democratic presidential nomination. (Hillary occupies the #1, #2, AND #3 spots! ) Now that Warner no longer holds elective office, he finds it difficult to draw attention to himself. He recently traveled to New Hampshire, but got only a lukewarm reception. Perhaps he needs to appeal to the Democrat base by jumping on the "Bush lied" bandwagon. Of course, that would destroy his chances of winning the general election. What a dilemma! For all the troubles faced by the Republicans right now, I would definitely not want to trade places with the opposition party.