Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.
Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.
Now, the number of secret warrants approved by the FISA court under the current, constitutionally acceptable, program was 2,176 in 2006, a record high. The number of secret warrants denied by said court? One.
The Bush administration has not yet tried to justify their reversal. They haven't argued that the program ties their hands unduly - in fact, they've argued in the past that the president's prefered program sits fully within the constraints of the Fourth Amendment, leaving one to wonder why they can't just go ahead get warrants if that's the case. The administration hasn't argued that having to get warrants within three days after the surveillance is a burden, or that the FISA court is too stingy with warrants, which is demonstrably not the case anyway.
The administration only argued that the president should do this because, under their interpretation of Article II of the Constitution, he could do this.
Yesterday, Glenn Greenwald took a look at an article by Harvard government professor Harvey Mansfield makes the case for a "strong executive." Mansfield argues that the "Office of the President" is "larger than the law" and has the power to act unitarily in those emergencies in which "law does not apply."
This argument that the president's powers increase toward infinity and the people's civil liberties and basic freedoms decrease toward zero as conflict and insecurity increase is deeply scary to me. It would seem to me that, in times of chaos and trouble, when that visceral fear for life and safety starts to overpower the higher faculties, the Constitution and the rule of law may remain as the only framework that keep us from descending into fascism to one side or anarchy to the other. To throw up our hands and hand over our personal freedoms and complete, unquestioned control of our country, shouting, "Save me, Superman!" when our safety is threatened is taking the very real risk that, when the threat passes, we'll never get our country back.
Greenwald quotes Thomas Paine's Common Sense:
[L]et a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
Maybe that qualified as common sense back in 1776; such sense strikes me as rather uncommon today. Other sense that should be common is the fact that we elect our president to an office that operates under checks, balances, the rule of law, and mechanisms available to reverse human error and malice; if we were electing a president operating without those failsafes, I daresay we'd hold him to a higher standard of intelligence and integrity.
An ongoing discussion over at Hey Jenny Slater examines the distinction between military coup and populist uprising. With respect to the latter, the question is asked that if such an uprising were to seek a return to the original ideals of our founding fathers, which ideals would those be?
I've got some thoughts, myself. Freedom of religion seemed fairly important to our forefathers, and seemed to be observed in a manner rather unlike our current approach. Freedom from undue government intrusion was particularly important to a country recovering from the totalitarian rule of a king. The idea of a press empowered to serve the people, to investigate the government and hold them to account instead of acting as a mouthpiece. The idea of a president who served at the will of the people, rather than the other way around. When I think about a "return to traditional values," that's usually what I have in mind.
Our current administration seems to have a fixation on fighting fire with fire. We fight torture by torturing, we fight kidnapping by kidnapping, we fight religious intolerance with religious intolerance, we fight against a group of people who hate us for our freedoms! by not having those freedoms anymore. We depose a dictator, led by a man who would be dictator. The result is that that which we fight, we eventually become.
But we already established, 231 years ago and ever since, that that isn't the kind of country we want to have. Our founders enshrined in the Constitution the fact that that isn't the kind of country we want to have. And if our president feels entitled to shrug off the burden of the Constitution that he took an oath to defend and uphold, then we need a different president. And we certainly don't need an administration that exists for the sole purpose of telling him that he's constitutionally entitled to do whatever the hell he wants to do with our country.