Foggy Bottom

Foggy Bottom

If we are suspending the law in deference to Bush’s unchecked impulses, let’s call it by its proper name: Benign lawlessness? Gitmo Governance? Fear Factor?


Since it has come to light that George W. Bush, through the National Security Agency, has been snooping on telephone and Internet communications without benefit of warrant or oversight of any kind, there have been quite a few worried, if tentative, complaints that we are edging toward a monarchy. “King George…” is how the conversation usually begins.

While the President could indeed be said to have arrogated unto himself some pretty monarchical powers, I think the comparison does not convey the immensity of the constitutional crisis posed by his intentional bypassing of judicial oversight. Frankly, I don’t think comparisons to royalty serve us very well in an era when kings act more like socialites, their crowns slightly askew, disco-ing till dawn. The graver modern risk comes not from kings but from dictators. Those who dictate. Those who rule by their word alone, whose word is law, superseding all other inquiry.

The debate is playing out in the media fuzzily, haltingly, perhaps because of the conflation of two questions. One is whether the executive can eavesdrop on citizens at all. It can. The other is whether exercise of that power rests entirely upon the say-so of the President or his agents. It does not. Yet breathless radio and TV debates pit those two issues against each other. “He has the power to protect us by listening in!” versus “He has no power to invade our privacy!” The issue is better stated by interconnecting the two premises: He has the power to listen in when he has gotten permission by presenting reasons to do so that are within a warrantable range of relevance to law-enforcement goals.

The law is hardly burdensome, as should be well understood by now. The President must go to a special court set up for the purpose of vetting the underlying reasons or suspicions necessitating such intrusion. That court is secret, in deference to matters of national security. If time is of the essence, a warrant may be obtained from the court after the fact. The President may also seek the approval or waiver of members of Congress. These requirements are simple but not at all equivocal: The President must get permission to wiretap, period. It is not a deep or mysterious point of law. If there is law, then this is it. If there is due process, then this is the procedure that is due.

If, on the other hand, we are suspending the law in deference to Mr. Bush’s unchecked impulses, then we should call it by its proper name. Benign lawlessness? Gitmo Governance? Fear Factor?

The public discussion I listen to seems to be something on the order of: “The President is a man of action, he doesn’t have time.” Or: “We’re at war! Don’t tie his hands!” But if all aspects of the executive function are reduced to “Do what’s necessary and just don’t tell us”–whether eavesdropping, detaining without trial or even torture and execution–we have a general rather than a President, a secret-police state rather than either a republic or a democracy.

Some discussions have treated the matter as though it’s about “an expansion of executive power,” as though we were wondering whether to put a little more air in the tires, more gas in the balloon. But skirting the power of the judiciary or ignoring the laws of Congress is not within or about the power of the executive. Rather, it is a diminishment of the other branches of government. It doesn’t matter whether Bush is a kind man or a polite man or a handsome man or whether he sings quite charmingly in church. If the President doesn’t have to obey the rules because he thinks the liberal order is outdated and naïve, then this is a huge shift in our core values. It is, as Al Gore put it, a “threat to the very structure of our government.” It’s the transformation of a tripartite system into a solo act. We can call it all kinds of other things, like a “unitary executive,” but institutionally it’s no different from authoritarianism.

The AOL News that pops up on my computer screen reads: GORE SLAMS WARRANTLESS SPYING… DO YOU AGREE WITH EX-VEEP? There is a picture of Gore with his hand raised as though in mid-slam. The caption reads: “He Says Bush Broke the Law…” The article is not exactly a lesson in civics; it reads more like a reality show, just one big “He says, she says”–to be determined, like some contest, by whether the denizens of cyberspace push the button marked “agree” or “disagree.”

Republican commentators have rushed to dismiss any concern by recasting the problem as one of Democrat ego rather than basic ideology. “Al Gore’s incessant need to insert himself in the headline of the day,” sniffed Tracey Schmitt, spokeswoman for the Republican National Committee, “is almost as glaring as his lack of understanding of the threats facing America. While the President works to protect Americans from terrorists, Democrats deliver no solutions of their own, only diatribes laden with inaccuracies and anger.”

And so it goes, the invocation of Bush as strong-jawed action figure, “facing” great threat, grappling with danger on the ground rather than fussing with duty’s prissier details. Democrats are depicted as having turned their backs on victory, throwing petty distractions in the way of executive resolve and tantrums in a misplaced scramble for “headlines.” Shush, children, he’s too busy to play with the courts right now, runs this subtext; too busy to get a “permission slip” to do his job. We the little people must trust him if we truly love our country. And woe betide those who disobey and insist that he follow the clear mandate of his legal responsibility. Those troublemakers are, in Bush’s estimation, lending “aid and comfort” to the enemy–a phrase, not coincidentally, matching the constitutional definition of treason. Distrust of and dissent from the President is treason, in other words; yet the President’s disregard of the constraints of his office is not?

This should not be a debate resolved by Bush’s likability quotient or Gore’s agreeability score. The implications of this go well beyond Father Knows Best and stretch all the way to Dear Inerrant Leader.

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