The Party of Truman

The Bush lovers who are So Very Concerned That We Have a Healthy Two-Party System are always lamenting that Democrats are no longer the party of Harry Truman, a real patriot who was "serious" about defending America even though he wasn't even a Republican.

Here's what Truman had to say (via Dover Bitch) about dealing with the threat posed by domestic communism (a threat at least as real and "existential" as Islamic terrorism is even pursuant to the most exaggerated fears):

"Now I am going to tell you how we are not going to fight communism. We are not going to transform our fine FBI into a Gestapo secret police. That is what some people would like to do. We are not going to try to control what our people read and say and think. We are not going to turn the United States into a right-wing totalitarian country in order to deal with a left-wing totalitarian threat."

Our country has faced a long and diverse series of threats, and we have defeated them while preserving our founding Constitutional principals and basic liberties, and without bestowing the President with monarchic powers, even in times of war. Leaders who are truly strong and resolute find ways to combat those threats while still preserving the defining attributes of America which have always made it so worth fighting for.

Praising the people who attack you

One of the staple tricks of Fox News is to pair an aggressive, unapologetic Bush lover with a Bush critic who is: (a) stereotypically annoying and shrill (the Susan Estrich model) and/or (b) mousy, apologetic and obsequious. In other words, they basically repeat the Sean Hannity-Alan Colmes model over and over when booking their guests. That way the pro-Bush mouthpiece can obliterate the anti-Bush sacrificial lamb while casting the appearance of some sort of fair debate.

Along those lines, when doing a little research on the NSA issue, I came across this transcript from the December 19, 2005 Hannity & Colmes Show, which focused on the NSA surveillance issue. To argue that the Administration did nothing wrong, they had screeching loudmouth Bush loyalist Victoria Toensing. To "argue" that the Bush Administration acted illegally, they had Andrew Fois, former Deputy Assistant Attorney General in the Clinton Administration.

After Sean and Victoria spent a few minutes lamenting the al-Qaida loving treason committed by The New York Times and explaining how clear it was that Bush did nothing wrong here, Sean turned to Fois, and this is how their exchange began:

HANNITY: Andrew, the same point, this was not done in a bubble. Senator Rockefeller of the Intelligence Committee was aware of it. As I pointed out, the Foreign Intelligence Security Act court was aware of it. There's no evidence that any law was violated in any kind. It seems like, once again, the anti-Bush "New York Times" wants to create a conspiracy where there is none. Do you have any problem with what you're reading?

ANDREW FOIS, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, Sean, yes, I have a big problem with it. I'm much more concerned about this than Victoria Toensing is, who I have a lot of respect for. And you're a great American, but I think you're misreading the "Times" article. Very few...

HANNITY: I read it fully, all seven pages.

What possesses people like Andrew Fois to go on national television and prostrate themselves before dishonest partisan shills like Sean Hannity and Victoria Toensig by showering them with lavish praise before he even gets to a single point? People like Hannity and Toensig make a living by depicting Bush critics as traitors and cowards and terrorist-loving subversives, and so many of the people who are the target of their attacks feel compelled to praise them before defending themselves. Do you ever hear Sean Hannity or Rush Limbaugh lauding Bush critics as "great Americans" for whom they have a lot of respect?

Making matters even worse, Fois ends the segment by completely mis-stating the position of Bush critics on the NSA scandal all in order to ingratiate himself with Sean and Victoria by trying to include them and get them to laugh at his stupid joke:

HANNITY: Guys, we've got to run. Andrew, last question: Yes or no, if Usama calls, do you think, by law, that we should have to hang up, yes or no?

FOIS: Not if it means trampling on the rights of Sean Hannity and Victoria Toensing, no.

HANNITY: Wow. So you say hang up on Usama bin Laden?

COLMES: Is there any evidence that that happened, Victoria?

HANNITY: Unbelievable.

COLMES: Any evidence that that ever happened?

HANNITY: Unbelievable.

So, according to Fois, the position of Bush critics is that the Government shouldn't listen in on telephone calls between Osama bin Laden and any American citizen. That, of course, is the caricature of the position of Bush critics -- the strawman -- which Fois, in his need to be the Good Friendly Fun Liberal, allowed himself to be saddled with.

Why are so many Bush opponents so desperate to be liked by the people who spend their time on national television convincing the country that they are subversive losers and traitors?

Threatening Administration critics with criminal prosecution

Yesterday’s report that the Department of Justice has opened an investigation into the disclosure of the Administration’s illegal surveillance program should come as no surprise. Wielding threats of criminal prosecution against those who speak out against the Administration is not a new tactic.

After the first Bush Treasury Secretary, Paul O’Neill, was fired, he became the primary source for Ron Suskind’s book, The Price of Loyalty, which was sharply critical of the Administration, revealing, among other things, that Bush had been pining for a war to oust Saddam since well before 9/11 ("from the very beginning"), and depicting Bush as a highly disengaged Chief Executive.

Within twenty-four hours, literally, the media was full of leaked stories claiming that O’Neill had violated laws and regulations governing the use of classified information, darkly suggesting that he had broken the law by giving certain documents to Suskind which were classified and that he was under investigation for possible crimes:

The Treasury Department said Monday it is looking into how a government document from the very early days of the Bush administration -- marked "secret" and outlining plans for a post-Saddam Iraq -- became part of a CBS "60 Minutes" broadcast Sunday night. . . .

Ousted Treasury Secretary Paul O'Neill, now an outspoken critic of the Bush administration, was a guest on the program, along with Ron Suskind, the author of a book for which O'Neill was the primary source.

O'Neill said on the program that the administration was preparing plans to move against Iraq "from the very beginning." The request for the investigation
came as O'Neill's comments critical of the Bush administration sparked a fury of controversy in Washington. O'Neill clashed with the president on deficit spending and tax cuts, which ultimately led to O'Neill's departure. . .

Asked if seeking the probe may look vindictive, [Treasury Department Spokesman Rob] Nichols said, "We don't view it in that way," according to Reuters news
agency.

Then, as now, the President’s followers raised the specter of criminal prosecution in the wake of damaging criticism of the President. The Washington Times led the charge:

The Treasury Department yesterday alerted its inspector general's office that a classified document was displayed by CBS News during the network's Sunday night interview with former Treasury Secretary Paul O'Neill. . . . Federal law prohibits the release of classified material that endangers U.S. national security.

A couple of months later, once the furor over O’Neill’s allegations had died down, the Treasury Department’s Inspector General quietly acknowledged that O’Neill did nothing wrong and no laws had been violated:

The report yesterday from Jeffrey Rush Jr. said no federal laws had been violated in the release of the documents but that Treasury needed to improve the way it handled sensitive documents.

Since then, it has become commonplace for the Administration and its supporters to use the threat of criminal prosecution against Administration critics. Recently, for instance, there were widespread calls, led by William Bennett, demanding a criminal investigation of Sen. Jay Rockefeller for stating his belief to foreign leaders that the invasion of Iraq was a fait accompli as early as January, 2002.

And when Democratic Senators objected to the cost of what they believed was the highly wasteful, multi-billion dollar "black ops" satellites program, the Administration disseminated leaked (and inaccurate) reports that the DoJ had begun a criminal investigation into Senators Rockefeller, Durbin and Wyden based on claims that they leaked classified information about the program when describing their opposition to it. And then there was the recent effort to accuse Sen. Harry Reid of engaging in criminal misconduct by commenting on whether Osama bin-Laden may be dead.

Unlike Britain, which has an Official States Secret Act making it a crime to disclose any classified information regardless of intent or harm, the United States has no such law, precisely because leaks are a time-honored and long-recognized vital tool for exposing and thereby deterring government wrongdoing. As Morton Halperin explained:

[G]eneral espionage statutes were not intended to be used to cover disclosures to the press and, if they were, this would do great harm. Congress recognized that there was massive over-classification of national defense information and that a statute that classified all such information would prevent the Congress and the public from gaining the information it needed to challenge government policies.

For exactly that reason, President Clinton vetoed legislation in 1995 which would have made it a felony to disclose any classified information, even though such a law would have obviously benefitted the Clinton Administration by preventing leaks which were embarrassing or damaging to his Administration:

President Clinton on Saturday vetoed a bill that would have criminalized the leaking of government secrets. The legislation, he said, might "chill legitimate activities that are at the heart of a democracy.''

The proposal had drawn criticism from news organizations which said it would stifle their ability to obtain information vital to the public."We must never forget that the free flow of information is essential to a democratic society,'' Clinton said in a statement. . . . .

"A desire to avoid the risk that their good faith choice of words -- their exercise of judgment -- could become the subject of a criminal referral for prosecution might discourage government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities,'' Clinton said. . . .

"Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive,'' he said.

"In such circumstances, this criminal provision would, in my view, create an undue chilling effect,'' Clinton said.

The "free flow of information" is exactly what the Bush Administration wants to prevent. In fact, it has taken to routinely wielding the threat of criminal prosecution against individuals who disclose information not which harms the national security interests of the United States, but which harms the political interests of the Administration.

The most preposterous claim from the moment the Times disclosed the NSA's eavesdropping outside of FISA is that the disclosure of the program endangered national security and helped al-Qaida. Such a claim is nothing short of farcical, since what was revealed was not our intelligence-gathering methods, but the fact that those methods were being implemented in violation of the law rather than in compliance with it. The only thing that was "damaged" as a result of this disclosure was the political interests of George Bush, whose deliberate and ongoing law-breaking stood revealed for the world to see.

In this regard, it is worth noting that the President does not have unfettered authority to declare any information he wants as classified. To the contrary, Section 1.8 of the still binding 1995 Executive Order governing the classification process specifically prohibits classifying information in order to conceal governmental wrongdoing:

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

Information conveying the methods we use for engaging in surveillance of terrorists is plainly classified and ought to be. The fact that the President has ordered that the law be violated when engaging in surveillance plainly is not. And it was the illegality of the NSA's program, not the substance of its intelligence-gathering methods, which was disclosed here.

Supporters of the Bush Administration have, for some time now, been calling for the prosecution of its political opponents on these grounds. The Administration has itself used precisely such threats in the past against its critics, and the DoJ investigation into the whistleblowers who exposed the illegal NSA surveillance program (rather than the political officials who illegally ordered it) is simply the latest step towards intimidating and silencing Administration critics and whistleblowers with the threat of criminal prosecution.

Finally punishing the wrongdoers in the NSA scandal (updated)

The Justice Department is finally moving to investigate the criminals responsible for the NSA illegal eavesdropping scandal . . . . not the people who engaged in the illegal conduct, but the real criminals -- the ones who brought the illegal behavior to light. The New York Sun, appropriately enough, has the leaked scoop:

The Justice Department has opened an investigation into the leak of classified information about President Bush's secret domestic spying program, Justice officials said Friday.

The officials, who requested anonymity because of the sensitivity of the probe, said the inquiry will focus on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks.

We already have nice legal theories in place designed to allow the President to violate the law with impunity. But the good thing about this investigation is that it will deter anyone else in the Government from exposing illegal action on the part of the Bush Administration, and if that doesn't work, it will make newspapers too afraid to publish such stories -- exactly the way the New York Times was bullied into sitting on this story for a full year.

Sure, even if illegal conduct gets exposed, nothing will happen because the President has the constitutional authority to violate the law during war. Everyone knows that. But when it comes to arrogating unto yourself the right to break the law, one can never have too many safeguards.

Whoever is responsible for this leak has done grave and incalculable damage to national security, because nobody knew until the Times disclosed this story that we were eavesdropping on terrorists. That came as a great shock to both us and to the terrorists. And the fact that the Administration was eavesdropping without warrants in violation of FISA (as opposed to with warrants in compliance with FISA) has done wonders for enabling the terrorists to adjust their methods. The NYT's disclosure of this story has made it painfully obvious on which side of the war on terror is the Times, sitting as it is smack dab in the middle of Times Square and therefore hoping upon hope to make it easier for the terrorists to successfully engage in attacks against America.

If there is one important principle on which the preservation of liberty in this country depends, it is that people at the highest levels of Government who deliberately break the law have every right to do so, whereas those who prevent the ongoing concealment of that illegal behavior and the newspapers which report on it must be punished to the fullest extent of the law. And we all know what that means.

UPDATE: Lest there be any confusion about the true purpose of this "investigation," the always angry Rocket -- in a post entitled "Throw 'em in the Slammer" -- clears it all up:

The Justice Department has launched a criminal investigation of the leaks to the New York Times regarding the NSA's anti-terror programs. Great news. This makes two; the leaked story about secret detention facilities in Europe is also under investigation. I doubt that anything short of the sight of bureaucrats doing jail time will slow down the torrent of illegal leaks from the federal agencies, so let's get on with it.

All government employees need to learn to keep their mouths shut when they see illegality in the Bush Administration, and nothing will "encourage" (in a Sopranos sort of way) would-be whisteblowers to keep quiet more than seeing the NSA whistleblowers hauled off to prison, while those responsible for the illegal eavesdropping remain free.

Sam Alito and Deference to Executive Power

The Anonymous Liberal has an excellent post up documenting the efforts by the Bush Administration to pack the Supreme Court not with conservatives on social issues (about which Bush seems to care very little), but instead, with those who believe in virtually absolute judicial deference to Executive Power (about which Bush cares very much). And the importance of this issue in the upcoming Supreme Court confirmation hearings of Samuel Alito is self-evident:

Following 9/11, the Bush administration repeatedly pushed the envelope of executive power, and may well have crossed a number of lines. In the months and years to come, the legality of these decisions will be adjudicated in the federal courts. Bush knows that his legacy will, in large part, be measured by whether his decisions are vindicated or condemned as executive overreaching. Bush does have a litmus test for judicial nominees, and it has nothing to do with abortion.

Bush's Supreme Court (and lower court) nominees are characterized by their slavish, uncritical deference to assertions of power by the Executive Branch, especially in times of ostensible "war." Indeed, as AL points out, now-Supreme Court Chief Justice John Roberts was selected by the White House to be the Supreme Court nominee while he was in the middle of hearing arguments in the case of Hamdan v. Rumsfeld (.pdf), in which Roberts decided in favor of the Administration's position and allowed the use of "military tribunals" at Guantanamo.

In opposing Roberts' nomination, the People for the American Way emphasized Roberts' deference to executive power at least as much as his restrictive view of privacy rights:

In his limited time as a federal appeals court judge, Roberts has shown enormous deference to the executive branch, with a broad and expansive view of presidential power that threatens the system of checks and balances.

When it comes to worshiping at the altar of unchecked executive power, Sam Alito is even more zealous than Roberts. Even conservative Bush ally and Roberts admirer Norm Ornstein of the American Enterprise Institute has warned that Alito is far more deferential to Executive power than Roberts is. As Steve Clemons of The Washington Note put it: Ornstein's Op-Ed shows that Alito "is a spear-carrier for expansive Executive Branch authority and looks at both Congress and the Judiciary as junior players in government."

Whereas Roberts replaced Executive Branch defender William Rehnquist, Alito is nominated to replace the much more Executive-scrutinizing Sandra Day O'Connor, which will alter the balance of the Court fundamentally, and certainly with regard to issues of Executive branch power.

It is therefore not hyperbole to warn that Alito's ascension to the Court could very well mean the disappearance of the last chance for some limitation to be placed on the dangerous powers which the Bush Administration is claiming for itself. Particularly now that Bush's Yoo Theory of Unlimited Executive Power is being extended literally to encompass the Executive power of law-breaking, it is difficult to imagine anything more important at stake in Alito's hearings.

AL quotes an article by Slate's Dahila Lithwick concerning exactly what is stake in the Alito nomination hearings. The article was written prior to the NSA eavesdropping revelations but has obvious applicability to it:

I think we will, all of us, be very sorry. Not just the edgy civil libertarians or the ACLU types, and not just Jose Padilla, or his attorneys, but everyone who believes there is a place for therule of law even in the midst of a war, especially when that war threatens to go on forever.

It's hard to imagine a worse combination than an Administration which claims the right to unlimited "wartime" power (including law-breaking) and a Supreme Court comprised of a majority which subscribes to John Yoo's authoritarian theories of presidential powers. But if Sam Alito takes Justice O'Connor's seat on the Supreme Court, that's exactly what we're going to have.

Bush supporters just want to help

The spirit of Christmas places an emphasis on good will, kindness and charity to others. And one can't help but notice that this spirit is changing the acrimonious nature of our domestic political debates, at least for the moment. For the holiday season, Bush defenders have placed a temporary moratorium on their patriotic campaign to depict Bush critics as terrorist-loving subversive cowards who hate America and want it to lose. In its place, Bush supporters are engaging in acts of great charity towards Bush critics by trying to show them the error of their ways, in order to help them do better.

You see, Bush supporters want Bush critics to do better. They wish that Bush critics would stop it with all of these self-destructive, deranged ideas (defined as criticisms of George Bush’s foreign policies and terrorism-related domestic policies) because the country needs a healthy two-party system. But what we have now is one healthy party and one filled with traitors and crazies. And Bush defenders want to help. They really do. Because America would be so much better off if we had serious, responsible, successful opposition to George Bush rather than the subversive, demented insanity which we have now.

And how to accomplish this? How can Bush opponents improve themselves? These wise and caring Bush supporters have the secret, and, in an act of great kindness, they have decided to share it:

Give up criticisms of George Bush’s foreign policy. Just stop objecting to what he is doing and start consenting to his foreign policy agenda and all of his policies which are justified in the name of terrorism. To succeed, Bush opponents must be like Joe Lieberman, one of the few responsible, serious Democrats to discover the secret to success: agree with everything the President is doing, praise him as obsequiously and reverently as possible, and stand proudly behind him. If only Bush critics would do that, things would be so much better for everyone – especially for Bush critics.

The always kind Bill Kristol, for instance, took the opportunity this week to say that he wishes so very much that Bush critics would see the error of their ways and become a responsible and serious opposition force -- by no longer opposing what Bush does and no longer objecting to his law-breaking:

Was the president to ignore the evident fact that FISA's procedures and strictures were simply incompatible with dealing with the al Qaeda threat in an expeditious manner? Was the president to ignore the obvious incapacity of any court, operating under any intelligible legal standard, to judge surveillance decisions involving the sweeping of massive numbers of cell phones and emails by high--speed computers in order even to know where to focus resources? Was the president, in the wake of 9/11, and with the threat of imminent new attacks, really supposed to sit on his hands and gamble that Congress might figure out a way to fix FISA, if it could even be fixed? The questions answer themselves . . . .

What is one to say about these media--Democratic spokesmen for contemporary American liberalism? That they have embarrassed and discredited themselves. That they cannot be taken seriously as critics. It would be good to have a responsible opposition party in the United States today. It would be good to have a serious mainstream media. Too bad we have neither.

Obviously moved by this spirt of generosity, the typically combative and rambunctious Bush-loving tough-guy, Ace of Spades, discarded his rough facade to expose his sensitive, caring side by revealing that all he really wants for Bush opponents is for them to do better:

After the 2002 midterms -- sheesh, that seems like it was almost three years ago or something -- William Kristol offered his opinion that the Democrats had, basically, gone crazy. Hatred of Bush and frustration at being frozen out of power had simply driven them batty.

It's stuff like this -- sort of predictable, you know, that Americans aren't going to sweat eavesdropping on terrorists without warrant -- that really bears Kristol out. Time and time again, the Democrats have had the opportunity to be statesmanlike, prudent, wise, and, as an added bonus, on the safe side of issues in political terms.

Time and time again they have rejected this opportunity in favor of opportunistic shrillness. Although I suppose the "opportunistic" part may not be correct, given the fact that they consistently seem to take the wrong side of the issue in terms of popular politics.

The Internet has not been kind to Democrats. Sure, the dextrosphere is knocking down their liberal spirit squad in the MSM, but that's small potatoes compared to what the sinestrosphere is doing to them. The scary-smart advice of Kos and Atrios -- "fight, fight, fight-- fight on big issues, fight on small issues, fight on trivial issues, fight when right, but especially, at all costs, fight when you're wrong, just to thwart Bush" -- is really not working out so well for them, is it?

Also joining in this charitable Save the Democrats campaign is the acid-tongued Anchoress, who, triggered by her belief that Americans don't care if Bush breaks the law, sincerely laments what Bush opponents are doing to themselves and offers a little holiday prayer that they will come to their senses -- for their own good:

Smart Democrats might finally start denouncing the Times’ disclosure of classified information. They might vote to put the Patriot Act back in place. It’s pretty clear -to me, at least - that my neighbor is not an anomaly.

It occurs to me that over a year ago I was writing about Democrats and the NY Times seeming to be spinning out of control - it’s only gotten worse. It makes me very sad. We need a healthy two-party system, not this madness.

And here is the considerate and caring Stanley Kurtz, offering his helping hand in The Corner:

The Democrats will never shake this image of weakness. It’s set in stone, and for exactly the right reason: the Democrats really are weak on national security issues. Everyone knows that the party’s base is pacifist. They want the war on terror to just disappear so that attention will turn back to domestic issues. Ironically, had the Democrats embraced Lieberman’s policies, we would probably be focused on domestic issues right now. Consensus on foreign policy would force politics back to the areas where the Democrats believe they are strong. It’s the smartest strategy for the Dems, but they can’t pull it off because their base really is caught up in the Vietnam syndrome.

And Kurtz again, graciously warning the Democrats about the trouble they are making for themselves by failing to embrace the noble example of Very Good Boy Joe Lieberman:

So much for the bad news. How about the good news? Well, it seems to me that the Democrats are in some serious long-term political trouble. It's too late for Peter Beinart to restore the Democrats' "fighting faith." Instead of purging MoveOn.org, the Democrats are busy purging Joe Lieberman. I can't believe anyone thinks that reports of secret sniffing for nuclear bombs will do anything but help the president.

And finally, we have Hugh Hewitt and Glenn Reynolds, speaking from their summit and sharing paternalistic and solemn disappointment in Bush opponents due to their failure this year to become more "responsible," a failure which Reynolds sadly laments is going to hurt them so very much:

HH: How about the left side of the blogosphere this year, when it comes to politics? Has it grown wilder, or more responsible, Glenn Reynolds?

GR: Mostly wilder. It's been interesting. Back before the 2004 election, Henry Copeland, who runs the Blogads network, and who is a really smart guy, said to me that if Bush loses, your blog traffic will more than quadruple in the coming year. But you probably won't enjoy the sentiments that are unleashed. And of course, Bush won, and I think you've seen that happen to the left side of the blogosphere. Some of the lefty blogs have really grown in traffic, but it's mostly pretty angry traffic. It's Sith traffic. It's dark side traffic. There's a lot of anger there. And while I've been encouraged to see a few relatively moderate and sensible comments from the likes of Markos Zuniga of the Daily Kos, overall, I think that the lefty blogosphere has been sort of an anger focusing echo chamber that's probably bad for the Democrats, if they want to win.

I hope Bush critics are appropriately thankful for this advice, which is dispensed with the purest of motives by people who want nothing but the best for you. They have the secret for how you can put an end to your sufferings and failures and miseries and they have taken the time to let you in on it. All you have to do is think and act more like them – and stop criticizing George Bush.

This is all based on illusion. Quite obviously, Bush supporters have come to think of the 2000 and 2004 elections as repeats of the 1972 and 1984 elections, where Richard Nixon and Ronald Reagan, respectively, slaughtered George McGovern and Walter Mondale in smashing landslides. They seem to have convinced themselves that Bush won similar landslides against Al Gore and John Kerry, and that this is conclusive proof that lopsided majorities are in agreement with George Bush’s foreign policy actions, such that anyone who criticizes those actions must have an electoral death wish. Many Democrats have internalized this same set of premises.

But it’s all pure fiction. Despite running against two incredibly poor and stiff campaigners, George Bush tied in 2000 and barely won in 2004. And public opinion polls conclusively show that a solid majority of Americans oppose the crowning jewel of Bush’s foreign policy – our invasion and occupation of Iraq. And as the instinctive support for the President generated by the shock of 9/11 fades into the past, more and more Americas have lost faith in Bush’s foreign policy approach and even in his anti-terrorist policies.

Far from there being some sort of broad, mainstream consensus that George Bush is right on foreign policy, there is a serious divide on that issue. And the trend is for more and more people to migrate from support for George Bush’s policies to opposition to them. Both substantively and strategically, then, this would be the worst possible time for Bush critics to follow the advice of Bush lovers by softening even further their opposition to Bush’s policies and behavior, or even worse, to cynically support them.

A real opposition party opposes the majority party with clearly articulated principles. Most importantly, it serves as an aggressive watchdog against the abuse of power by the party in control -- power which the Founders, and countless political philosophers, understood has the inherent tendency to corrupt. This preening concern for a vibrant opposition party that we are hearing from Bush lovers – which they tell us can be achieved only by giving up all but the pettiest and most inconsequential vestiges of opposition to George Bush – can be easily recognized as the self-serving farce that it is. A true two-party system and a meaningful opposition party requires real opposition, and most of all, it requires a steadfast vigilance against corruption by the party in control.

To insist that the opposition party must relinquish and abdicate its watchdog responsibility is to turn the opposition party into an empty, impotent gesture – a worthless symbol – that props up the false appearance of opposition to the President, but which is devoid of any actual substance or force. That's the America of 2002 -- their time of unchallenged glory -- and they are clamoring for a return to it.

Despite the lovely holiday hands of help being extended by Bush supporters, that is the real objective – to convince Bush critics that their only hope for salvation lies in following the example of Joe Lieberman by just accepting the rightness of George Bush and falling into line behind him. It may sound like slavish passivity and defeat, but they are here to tell us that it’s really for everyone’s own good.

Fear as the driving political belief

The NSA eavesdropping scandal is rendering more vivid than ever the central role which fear plays in driving many people to support the whole range of George Bush’s policies that are justified in the name of fighting terrorists. At bottom, so many of the public policy debates we are having end up at that destination, where this one simple though incomparably potent emotion -- fear -- stands revealed as the true engine driving support for the Bush world-view.

When all else fails, what we end up hearing from Bush supporters, usually in quite strained and urgent tones, is that we have no real choice but to consent to the latest item of controversy on the Bush agenda (which now even includes allowing the President to break the law when he decides that our protection requires that), because if we do not, we will all die violent and horrible deaths at the hands of the powerful Islamic terrorists. Our very survival is at risk -- the people who want to kill us all are coming -- and given our dire state, anything and everything is justified to stop them.

There have been two excellent posts on this subject recently -- one by Maha and then one by Digby -- and I posted my own views on this and related topics here and here. Now, researchers in the Social Psychology program at Rutgers University-New Brunswick are offering some empirical evidence which demonstrates the critical role which fear plays in driving people to support George Bush. These social scientists are reporting on their findings from a study which sought to measure the impact which fear had on voting choices in the 2004 election:

Their findings demonstrated that registered voters in a psychologically benign state of mind preferred Senator Kerry to President Bush, but Bush was more popular than Kerry after voters received a subtle reminder of death. Citing an Osama bin Laden tape that surfaced a few days before the election, among other factors, the authors state, "the present study adds convergent support to the idea that George W. Bush's victory in the 2004 presidential election was facilitated by Americans' nonconscious concerns about death…" The authors believe that people were scared into voting for Bush.

More than 130 registered voters participated in the study. Split into two groups, the first group was asked to write down a description of their emotions regarding the
thought of their own death and, as specifically as possible, write down what will physically happen when they die and after they are dead. The second group responded to parallel questions regarding watching television. Within the first group 32 responded that they would vote for Bush and 14 opted for Kerry. In the second group, the decision was reversed as 34 selected Kerry and 8 selected Bush.

The full article itself is behind a subscription firewall. I have e-mailed the editors of the journal to request a copy of the article and will elaborate on the study if I receive it. I find this study far from dispositive, to put it mildly, and, as is usually the case with endeavors of this sort, my guess is that the structure of the study was influenced by lots of preconceived beliefs on the part of the researchers with regard to the subject they were studying.

Nonetheless, its conclusions are consistent with what is quite apparent to the naked eye: a large segment of Americans have had instilled into them a deep-seated fear of terrorism which is the predominant factor in how they form their political views. Does anyone doubt a correlation between the quantity of fear as an emotion and the likelihood they will support George Bush -- that the more someone lives in emotional fear of an Islamic terrorist attack, the more likely it is that they are a Bush voter?

It is not difficult to find the source of these fears. Here is George Bush in a randomly selected and quite typical speech delivered on October 6, 2005, doing everything he can to inflame those fears in order to bolster support for our occupation of Iraq:

We know the vision of the radicals because they've openly stated it -- in videos, and audiotapes, and letters, and declarations, and websites. . . . Their tactic to meet this goal has been consistent for a quarter-century: They hit us, and expect us to run. They want us to repeat the sad history of Beirut in 1983, and Mogadishu in 1993 -- only this time on a larger scale, with greater consequences.

"The militants believe that controlling one country will rally the Muslim masses, enabling them to overthrow all moderate governments in the region, and establish a radical Islamic empire that spans from Spain to Indonesia. With greater economic and military and political power, the terrorists would be able to advance their stated agenda: to develop weapons of mass destruction, to destroy Israel, to intimidate Europe, to assault the American people, and to blackmail our government into isolation."

"Our enemy is utterly committed. As Zarqawi has vowed, 'We will either achieve victory over the human race or we will pass to the eternal life.' And the civilized world knows very well that other fanatics in history, from Hitler to Stalin to Pol Pot, consumed whole nations in war and genocide before leaving the stage of history."

The murderous ideology of the Islamic radicals is the great challenge of our new century. Yet, in many ways, this fight resembles the struggle against communism in the last century. . . .

With the rise of a deadly enemy and the unfolding of a global ideological struggle, our time in history will be remembered for new challenges and unprecedented dangers.

Islamic terrorists here, as always, are depicted as omnipotent villains with quite attainable dreams of world domination, genocide, and the obliteration of the United States. They are trying to take over the world and murder us all. And this is not merely a threat we face. It is much more than that. It is the predominant issue facing the United States -- more important than all others. Everything pales in comparison to fighting off this danger. We face not mere danger, but "unprecedented danger" -- the worst, scariest, most threatening danger ever.

And literally for four years, this is what Americans have heard over and over and over from their Government – that we face a mortal and incomparably powerful enemy on the precipice of destroying us, and only the most extreme measures taken by our Government can save us. We are a nation engaged in a War of Civilizations whose very existence is in imminent jeopardy. All of those plans for the future, dreams for your children, career aspirations, life goals – it’s all for naught unless, first and foremost, we stand behind George Bush as he protects us and defeats this enemy.

There is virtually no policy incapable of being justified with this fear. It is an all-purpose tool. We have to invade and occupy Iraq because the terrorists will kill us all if we don’t. We have to allow the Government to incarcerate American citizens without due process, employ torture as a state-sanctioned weapon, and even allow the Administration to violate the law, because the terrorists will kill us all if we don’t. It is the one and only argument which enables the Bush Administration to win again and again. The more afraid of terrorists people are, the more likely they are to support the Bush world-view. And another terrorist attack on U.S. soil, which is certainly likely, is sure to ramp up that dynamic -- both the fear itself and the policies it enables -- by several orders of magnitude.

Acknowledging a threat, even a serious threat, and taking steps to address it, does not require fear. But what does require fear is an agenda which demands that blind faith be placed by the citizenry in the power of the Government in exchange for being protected by it. And it is that fear, inflamed more and more every day, which is now driving America’s political choices.

Public opinion & Presidential law-breaking -- A few facts

One of the most absurdly formulated polls ever was released yesterday by Rasmussen Reports, and it purported to find that 64% "believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States." Without realizing the obvious flaw or realizing it but not caring, Bush defenders have jumped on this poll like a pack of dogs in heat, declaring that we should just immediately forget about this whole NSA law-breaking thing because it’s obviously not a popular scandal.

Many have already noted the rather fundamental and painfully obvious flaw in the poll: it doesn’t ask whether people support eavesdropping in violation of the law and/or without obtaining search warrants from a court, which happens to be what the scandal is about. As everyone knows by now (except for the Rasmussen pollsters), the scandal is not about whether the Administration should be eavesdropping in order to fight terrorism but about whether the Administration has the right to violate criminal laws by eavesdropping on American citizens without the warrants required by law. Aren’t we well passed the point where it is necessary to point out that distinction?

But beyond this specific, truly useless poll, there are several things worth noting about public opinion polls generally as they concern this scandal:

(1) It is quite amazing to watch these Bush defenders -- who relentlessly slogged on with Bill Clinton’s sex scandal impeachment in the face of immovable public opinion polls consistently showing strong pro-Clinton and anti-impeachment sentiments, but who piously told us again and again how polling doesn’t matter when it comes to the solemn duty to uphold the rule of law – now seize the very first public opinion poll they can get their hands on and parade around with it like celebrating munchkins declaring that the wicked scandal is dead. One Bush-defending celebrant even told us, with no apparent irony at all, that “a scandal without a scandalized public is pretty hard to pursue to impeachment.”

Is there some sort of new medication or surgical procedure which enables Bush defenders to simply forget everything they said, every "principle" they touted, during the eight years of the Clinton Presidency?

(2) There is a lot of talk about the proper oppositional role which a minority party ought to play, and there has been much debate within the Democratic Party specifically about whether a more aggressive posture is appropriate in opposing the Administration's actions.

Regardless of one's stance on those issues generally, surely everyone can agree that the Democratic Party must aggressively -- very aggressively -- pursue this Presidential law-breaking no matter what public opinion surveys show in the first instance, and even what they show thereafter. If the Democratic Party is going to meekly crawl away with a few peeps of impotent protest now that it has been revealed that George Bush has been deliberately and breezily violating laws enacted by Congress – and now that Bush himself has defiantly proclaimed his intent to continue to violate the law – what really would be the point of having an opposition party?

It cannot matter what public opinion polls show, particularly in these initial stages. The President violated the law. Repeatedly and deliberately. And he has vowed to continue to do so. The harm from allowing him to do so with impunity would be incalculable on almost every level. And if Democrats crawl away from this fight because of fear of polling data or a desire to appear “serious” as the Bill Kristol’s of the world manipulatively define that term, such a dereliction of duty will only bolster – and quite justifiably so – the devastatingly harmful image of Democrats as a weak-willed and spineless party with no courage and no soul.

(3) Scandals do not instantaneously change public opinion – almost ever. Perceptions of George Bush have been solidified after 5 years in office and two national elections, and they don’t just magically transform overnight because of a single New York Times article, the ramifications of which have yet to be fully explained to the public.

This scandal is a full two weeks old. Most of the relevant facts are still to be revealed. We know only bits and pieces – we only know those very limited facts which the Times scraped up enough courage to print, along with "facts" which have been leaked by the Administration. We are at the very beginning of this scandal, not in the middle or at the end. Any talk of “public opinion” regarding the illegal eavesdropping -- as though such opinion is dispositive or unmoveable – is absurd.

Watergate unfolded over the course of three years. Richard Nixon was re-elected with an overwhelming landslide in the middle of the scandal. It is highly instructive to recall the evolution of public opinion with regard to this Mother of all Presidential Law-breaking Scandals:

[I]t is worth remembering that Watergate, as a case against a presidency, was not built in a day, and the decision of most Americans to abandon their support of Nixon was not made overnight.

Shafts of light fell on Nixon's dark side in June 1972, when burglars were caught bugging the Democratic National Committee headquarters in the Watergate hotel-office complex. The few newspeople who went after the story began piecing it together that summer and fall: the program of dirty tricks and the illegal cash financing, the efforts to silence potential witnesses and shield the president.

While the revelations accumulated, the rest of the country tuned out. That November, Nixon carried 49 states in winning re-election. More than two months later, as the first Watergate defendants were going to court in January 1973, Nixon's numbers in the Gallup Poll were among the most robust of his presidency: 68 percent approval to 25 percent disapproval (a near match with Clinton's figures for late January 1998).

Of course, that was before Nixon began talking about invoking executive privilege to prevent White House aides from testifying about an alleged cover-up. When that key phrase, "executive privilege," became part of the discussion, Nixon's numbers started their descent.

In February, the Senate voted 70-0 to empanel an investigating committee of its own. Nixon's approval rating in the first week of April stood at 54 percent in the Gallup Poll. Most Americans were still withholding judgment.

Even after the April 30 speech in which Nixon announced the resignation of his closest aides, many Republicans continued to rally around the president. The Senate Republican leader, Hugh C. Scott of Pennsylvania, said the speech had proved that the president was "determined to see this affair thoroughly cleaned up." The governor of California, Ronald Reagan, said the Watergate bugging had been illegal but that "criminal" was too harsh a term because the convicted burglars were "not criminals at heart."

That same month, Republican state party chairmen meeting in Chicago adopted a resolution blaming "a few overzealous individuals" for Watergate and lending unequivocal support to the president.

Vice President Spiro T. Agnew accused the press of using "hearsay" and other tactics that were "a very short jump from McCarthyism." The same comparison was picked up by the man who had succeeded McCarthy in the Senate, Democrat William Proxmire of Wisconsin, who said the media had been "grossly unfair" to Nixon.

By then, however, the bleeding in the Gallup Poll had dropped Nixon to just 48 percent approval in the first week of May -- a drop of 20 percentage points since January. And that rating would keep on falling through the 25 percent level before Nixon's resignation in August 1974.

In the short two weeks since this scandal was disclosed, there have been all sorts of obfuscatory smoke screens thrown up by blindly loyal Bush defenders, who have paraded before the cameras and spewed forth all sorts of esoteric legalisms about “inherent authority” and the AUMF in order to cloud what is, in reality, an exceptionally clear issue.

But that smoke will clear as more facts are revealed. Americans will realize that Congress – with the agreement of the Executive Branch and the intelligence community – all agreed that eavesdropping on American citizens without a warrant should be and is a crime. And knowing that, Bush ordered his Government to do it anyway. He therefore broke the law, and is unrepentant about it. Once the smoke clears, those are not difficult concepts to grasp, and Americans -- thanks to Watergate -- have a visceral aversion to illegal White House eavesdropping and Presidents who claim the right to break the law. These are not difficult issues to explain.

Ultimately, the focus must remain on the fact that the President acted in violation of the law and brazenly claims the right to do so. Democrats and everyone else who care about the rule of law should be guided by their passion and anger over that fact. Everything else will follow from it.

UPDATE: This CNN/USA Today/Gallup poll (h/t Mike G.) from December 20 -- reporting that "[n]early two-thirds said they are not willing to sacrifice civil liberties to prevent terrorism, as compared to 49 percent saying so in 2002" -- is of much greater relevance to the NSA scandal than a poll regarding the general desirability of (legal) surveillance. But public opinion on the NSA scandal won't be known until a credible poll asks whether the public approves of the Bush Administration's eavesdropping on American citizens with no oversight and without obtaining judicial authorization as required by FISA.

The President's law-breaking

To savor the utter absurdity of today's new Bush Administration defense for its wanton and ongoing law-breaking -- namely, that it only breaks the law with regard to "very bad people" -- please see this post.

And here are two excellent sources well worth reading, which further demonstrate the utter clarity of the Bush Administration's law-breaking:

(1) A Federalist Society debate (.pdf file) in which Robert Levy, conservative Federalist Society member and Senior Fellow in Constitutional Studies at the Cato Institute, obliterates the Bush Administration's legal defenses (h/t ReddHedd, via e-mail); and

(2) A post at Think Progress which lays out the irrefutable answer to the Bush Administration's primary defense -- that Congress authorized it to eavesdrop outside of FISA when it enacted the AUMF.

The more these issues get debated, the clearer it becomes that the Administration broke the law.

Republicans speak out forcefully for the rule of law

As Jane Hamsher recently observed, the media is beginning to depict the NSA eavesdropping scandal as just the latest partisan war, whereby it is "liberals" who are objecting to President Bush’s clear and deliberate eavesdropping in violation of the law. Depicting the scandal in this light is absurd and inaccurate for multiple reasons, beginning with the fact that President Bush’s behavior violates every core principle to which conservatives claim adherence – from a limited and restrained Federal Government which honors the classically American demand to be "left alone," to the central importance of the rule of law and clear principles of right and wrong. And some prominent conservatives have spoken out strongly against President Bush's law-breaking on precisely these grounds.

As the Administration parades around one defense after the next to justify and excuse its violations of FISA -- that it was done for our own good, that it was only done against "really bad people," that the law wasn’t broad enough for them to comply with, etc. – opponents of the Administration’s law-breaking have been attempting to emphasize that the President, like all other citizens, is required to obey the law, and that it is not an excuse to claim, once he’s caught violating it, that he broke the law for a good reason.

And, as one would expect, there are lots of stirring testaments to the paramount importance of the rule of law which have been delivered by Republicans, who insist, with great moral courage, that there are no excuses or justifications for the President of the United States to violate the law. A President who violates the law, they argue, destroys the rule of law and violates every one of our Founding principles, and must be punished. It's true that most of them argued this in 1998 when advocating Bill Clinton’s impeachment for violating the law against perjury, but surely this steadfast devotion to the rule of law hasn’t waned any in just short seven short years.

Indeed, there is really no point in anyone writing any more about the importance of the rule of law and why it is so dangerous and intolerable to allow the President to violate the law. The Republicans who argued in favor of Bill Clinton’s impeachment have already advanced these very arguments as compellingly and eloquently as they can be expressed. All that remains is to prod them to apply these principles – in which they believed so righteously only seven years ago – to the individual who is currently occupying that office.

The pure applicability to today of these thunderous speeches of principle is truly overwhelming:


Rep. JC Watts - (R-OK)

[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges -- it is tiring and thankless, but we know it must be done. Because if we do not point at lawlessness, our children cannot see it.

If we do not label lawlessness, our children cannot recognize it. And if we do not punish lawlessness, our children will not believe it. So if someone were to ask me, "J.C., why do you vote for, why did you vote for the articles of impeachment?" I would say, "I did it for our children."

Rep. Tom Delay (R-TX)

I believe that this nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth.

Shall we follow the rule of law and do our constitutional duty no matter unpleasant, or shall we follow the path of least resistance, close our eyes to the potential lawbreaking, forgive and forget, move on and tear an unfixable hole in our legal system? No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country.

Rep Dick Armey (R-TX)

How did this great nation of the 1990s come to be? It all happened Mr. Speaker, because freedom works. . . . But freedom, Mr. Speaker, freedom depends upon something. The rule of law. And that's why this solemn occasion is so important. For today we are here to defend the rule of law. . . .

If we ignore this evidence, I believe we undermine the rule of law that is so important that all America is. Mr. Speaker, a nation of laws cannot be ruled by a person who breaks the law.

Otherwise, it would be as if we had one set of rules for the leaders and another for the governed. We would have one standard for the powerful, the popular and the wealthy, and another for everyone else. This would belie our ideal that we have equal justice under the law. That would weaken the rule of law and leave our children and grandchildren with a very poor legacy.

I don't know what challenges they will face in their time, but I do know they need to face those challenges with the greatest constitutional security and the soundest rule of fair and equal law available in the history of the world. And I don't want us to risk their losing that. . . .

Christopher Cox - (R-CA)

Every single man and woman in Operation Desert Fox at this very moment is held to a higher standard than their commander in chief. Let us raise the standard of our American leader to the level of his troops. Let us once again respect the institution of the presidency. Let us see to it indeed what the censure resolution says merely in words, that no man is above the law. Let us not fail in our duty. Let us restore honor to our country. . . .

House Impeachment Manager Stephen Bryer (R-IN)

A core function of the government derives its role from the social contract that our civilized society has under which a fundamental exchange of rights takes place.

We give up the right to exercise brute force to settle disputes, a situation where chaos reigns and the strongest most often prevail. Instead, we submit to the power delegated to the state under which an individual then submits, to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government, the courts. The judicial branch of government then peacefully decides which party is entitled to judgement in their favor after a full presentation of truthful evidence.

Implicit in the social contract that we enter into as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under law. Despite the tumbling tides of politics, ours is a government of laws and not men. It was the inspired vision of our Founding Fathers that the Judicial, Legislative, and Executive branches of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.

Once we as a society— and particularly our leaders— no longer submit to the social contract, and no longer pay deference to our third branch of government— which is equally as important as the legislative and executive branches of the government we begin to erode the rule of law and begin to erode the social contract of the great American experiment. . . .

Our President, who is our chief executive and chief law enforcement officer and who alone is delegated the task under our Constitution to "take Care that the Laws be faithfully executed," cannot and must not be permitted to engage in such an assault on the administration of justice. The Articles of Impeachment adopted by the House of Representatives establish an abuse of the public trust and betrayal of the social contract in that the President is alleged to have repeatedly placed his personal interests above the public interest and violated his Constitutional duty.

For if he is allowed to escape conviction by the Senate, we would allow our President to set the example for lawlessness and corruption. We would allow our President to serve as an example of the erosion of the concept of the social contract embraced and embodied by our Constitution. I don't believe this Senate will allow that to happen. . .

"The whole of the executive branch acts subordinately to the command of the President in the administration of federal laws, so long as they act within the terms of those laws. Their offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty." . . . .

In The Imperial Presidency, Professor Arthur Schlesinger, Jr. states: "The continuation of a lawbreaker as chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world." By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law. . . . .

We are seeking to defend the rule of law. America is a "government of laws, and not of men." What protects us from the knock on the door in the middle of the night? The law. What ensures the rights of the weak and the powerless against the powerful? The law. What provides rights to the poor against the rich? The law. What upholds the rightness of the minority view against the popular, but wrong? The law.

Rep. Robert Goodlatte (R-CA)

Since it is the rule of law that guides us, we must ask ourselves what happens to our nation if the rule of law is ignored, cheapened or violated, especially at the highest level of government. Consider the words of former Supreme Court Justice Louis Brandeis, who was particularly insightful on this point. "In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously.

For good or for ill, it teaches the whole people by its example. If government becomes a lawbreaker, it breeds contempt for the law. It invites every man to become a law unto himself." Mr. Chairman, we must ask ourselves what our failure to uphold the rule of law will say to the nation, and most especially to our children, who must trust us to leave them a civilized nation where justice is respected. . . .

If we truly respect the presidency, we cannot allow the president to be above the law. . . .

I have heard from many constituents who are deeply concerned that action be taken in this matter, and I appreciate them sharing their thoughts. One of those constituents is a 12-year- old sixth grade student from Linkhorn (sp) Middle School in Lynchburg, Virginia named Paul Inge (sp).

He recently wrote, "I am a Boy Scout who is concerned about the leadership of the president of the United States of America. It is my understanding that other ordinary citizens who lie under oath are prosecuted. The president should not be any different. He should also have to obey the laws. As a Boy Scout, I have learned that persons of good character are trustworthy and obedient. I feel that the character of the president should be at least as good as the leaders that I follow in my local troop and community. Is this too much to ask of our country's leaders?"

The precious legacy entrusted to us by our founders and our constituents is a nation dedicated to the ideal of freedom and equality for all her people. This committee must decide whether we will maintain our commitment to the rule of law and pass this precious legacy to our children and grandchildren, or whether we will bow to the political pressure for the sake of convenience or expediency.

Much of our hopes and dreams for our children, like Paul Inge, and for the integrity of our nation, depends on the answer to that question. Our Founding Fathers established this nationon a fundamental yet at the time untested idea that a nation should be governednot by the whims of any man but by the rule of law. Implicit in that idea is the principle that no one is above the law, including the chief executive.

The Administration's "very bad people" defense

In order to mollify fears sparked by its illegal eavesdropping on American citizens, the Administration has returned to League of Justice cartoons as its touchstone for defending itself. Here is White House spokesman Trent Duffy telling us yesterday why we should just stop with all this fuss about the Administration's FISA-violating eavesdropping on American citizens:

This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.

As a preliminary matter, it really is amazing how the White House continuously talks to Americans the way a third-grade teacher explains to his 8-year-old students why Johnny had to go to the principal’s office – because he was "very bad." This cartoonish lecture – about how we shouldn’t worry that the Administration is engaging in illegal, rights-infringing conduct because they’re only doing it to the "very bad people" -- is the same one which they trot out, with great success, whenever they want to justify their lawless behavior, from their torture policies to Jose Padilla’s indefinite incarceration in a military prison. Since they’re breaking the law and violating basic Constitutional guarantees only for The Very Bad People, why would any Good Person object?

There are several obvious problems with this self-justifying theory. The first is that it’s based on patent falsehoods. Are we now supposed to believe that the Administration has only eavesdropped on "very bad people who have a history of blowing up commuter trains, weddings and churches." If the Administration is actually aware of the identity and location of people who have committed such murderous acts -- which they would need to be in order to eavesdrop on their conversations -- wouldn’t they be (at least) arresting them?

And if the people on whose conversations they want to eavesdrop are people "who have a history of blowing up commuter trains, weddings and churches," are we supposed to believe that they could not obtain, with great ease, FISA warrants to do so? If -- as Duffy now claims -- the only goal which the earnest, innocent Bush Administration had was to eavesdrop on "very bad people who have a history of blowing up commuter trains, weddings and churches," then all of the excuses offered up thus far as to why FISA was inadequate – e.g., because the Administration actually wanted to engage in sweeping surveillance on everyone, because FISA’s "probable cause" standard is too restrictive – make no sense.

It’s quite a dilemma the Administration has created for itself. The narrower the Administration defines the scope of its surveillance targets (in order to soothe concerns about its eavesdropping), the more impossible it becomes to justify why it had to eavesdrop outside of the law.

Second, while there are some individuals who unquestionably qualify as "very bad people" -- the ones, for instance, "who have a history of blowing up commuter trains, weddings and churches" -- there are many others who are considered by the Administration to be "very bad" who likely are not. Administrations of both parties have a natural tendency to view individuals with radical (though legal) political agendas or even garden-variety political opponents as "very bad people."

Our country has a long and sordid history of the Executive branch abusing its considerable powers to fight against "very bad people" by recruiting those powers in service of its own agenda, and not the interests or security of the country. This was exactly the right-wing complaint against the Clinton Administration's attacks on Randy Weaver and David Koresh, not to mention the Republicans' now-conveniently-forgotten pious tributes to the sanctity of the rule of law when it came to Clinton's law-breaking.

Similar complaints of executive abuse of such powers were made against every Administration since at least 1960. The collective distrust that arose from those abuses is precisely why the country enacted laws requiring that powers such as secret eavesdropping be exercised o