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.