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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, January 08, 2006

Several matters

There are a couple of posts I wanted to finish today but won’t be able to until tomorrow. Until then, here a few interesting things of note:

(1) The AP poll reporting that 56% of Americans already believe that the Bush Administration should be required to obtain warrants before eavesdropping on communications, even where the communications involve "suspected terrorists," is extremely significant. The underlying polling data is here (pdf).

Some Bush defenders have objected to the formulation of the poll question on the ground that it specifies that it is "the Bush Administration" exercising these warrantless eavesdropping powers, and is therefore skewed to generate more opposition to the eavesdropping. They believe the poll should simply ask whether the U.S. Government generically should have such powers. Leaving aside the irony that Bush defenders object to the inclusion of the words "Bush Administration" because it is likely to inflame opposition (rather than support) for whatever it is that is being asked about, the inclusion of that term actually makes the poll much more meaningful.

After all, it is the Bush Administration - not some generic "executive" - which is asking Americans to entrust to it secret, illegal eavesdropping powers to be conducted without judicial oversight. While Americans might be willing to entrust some other Administration run by other people with such powers, this poll demonstrates that a majority is unwilling to trust this Administration with those powers.

Bush defenders may be right that there would be different results if the question were posed with some faceless President (or some other President) in mind rather than with Bush, but that undermines their position rather significantly, since the question which is actually at hand is whether Americans trust this particular Administration with secret, lawless eavesdropping powers. The poll shows that Americans do not.

Bush followers also exert the standard objections to the partisan breakdown of respondents (every poll they dislike is inherently flawed and biased), but there are three things worthy of note about this poll regardless of whether its results are perfect:

(a) A majority of Americans has already figured out -- on their own and with almost no prominent political officials strongly making the case -- that all of the scary talk about terrorists and all of the inspiring cowboy imagery of George Bush’s cocksure rule-breaking in order to save us does not justify or render tolerable Bush's violations of the law. The mere invocation of terrorism no longer scares most Americans into blindly endorsing anything that George Bush does, and certainly does not impel them to tolerate illegal conduct by the President. Thus:

(b) This substantial anti-Bush sentiment on the NSA scandal should instill Bush opponents -- Democrats and principled conservatives alike -- with the resolve to start aggressively attacking the Administration on these law-breaking issues. It is safe for Democrats to clearly articulate exactly what this Administration is claiming with regard to its powers of law-breaking, and to speak clearly and declaratively about the profound danger posed by George Bush’s belief that he has the right to break the law – not just eavesdropping laws, but laws generally. That case has not really been made, and yet 56% of Americans already object to warrantless eavesdropping even if it involves eavesdropping on "suspected terrorists."

Imagine what that number could be if Democrats and other political officials were speaking clearly, rather than in half-hearted and cautious legalisms, about George Bush’s explicitly claimed right to violate the law.

(c) The substantial opposition to warrantless eavesdropping exists even though there has been no real evidence yet that the Administration abused its eavesdropping power. Evidence of abuse, if it exists, would obviously catapult this issue into a whole new realm, but it is not necessary to have such evidence, because it is a profound crisis and a danger unto itself to have a President who breaks the law and then, when caught, says that he has the right to do so and vows to our faces that he will continue to break the law.

(2) The real issue here is not whether the Administration can eavesdrop without warrants (which is what the poll asked), but whether the Administration has the right to break the law if it thinks that doing so will help in the fight against terrorism. That is really the issue here, and to make clear that this is so, Bush opponents should simply start explaining to the public exactly what Bush followers are saying in defense of the President - because what they are arguing is exactly that: that Bush has the right to violate the law.

Along those lines, this week’s Weekly Standard is publishing an extremely important essay by long-time social conservative hero Harvey Mansfield, a Professor of Government at Harvard. The article is entitled "The President and the Law" and sets forth with perfect clarity the view of Bush defenders -- as previously expressed by, among others, Dick Cheney – that as a result of the "war" we are fighting against terrorists, the President really is above the law; he is the law; and the Constitution gives him the right to ignore both Congress and the courts. Bush opponents must make clear to Americans that this is the theory on which the Bush Administration is based.

(Independently, Americans also ought to know, and the Senate needs to find out, whether and to what extent Sam Alito agrees with these views of Executive power and the rule of law. Maybe Joe Biden could give Alito a homework assignment of reading Mansfield's article and be prepared to discuss it at the hearings).

Does Mansfield’s description of the Constitution and the powers of the President sound anything like the pre-Bush United States?

Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force. . . .

To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger. . .

Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. . . .

In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. . . .

With one person in charge we can have both secrecy and responsibility. Here we have the reason that American society, in imitation of American government, makes so much use of one-man rule. . . .

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

So, to recap: The President is "larger" than the law. The "rule of law is not enough to run a Government." We must remember that a monarchy is "effective" and therefore, in times of "war" (like now), we must embrace "one-man rule." In sum, in emergencies like the one we have now and will have for the indefinite future, the "law does not apply."

That George Bush has the right to break the law is not a fringe crackpot theory. It lies at the heart of the Bush Administration’s conduct and is the only theory which can coherently explain its actions. This view is being expressly and unabashedly advocated in the most influential pro-Bush magazine. It is endorsed by public intellectuals like Mansfield, by highly influential federal judges like Richard Posner, and by former Attorney Generals like William Barr. Dick Cheney has made no bones about the fact that this is the Administration’s view, and of course, the Yoo Memorandum (with its quite explicit warning that neither Congress nor the judiciary "can place any limits on the President's determinations" relating to terrorism) long ago made clear that this "one-man rule" theory of Executive power lies at the heart of the Bush Administration.

Every Democrat and every Bush opponent should be pointing this out at every possible opportunity. George Bush violated eavesdropping laws and says he will continue because he claims the right to break the law. Debates over specific terrorism-related "laws" or eavesdropping powers or anything else don’t matter because we have an Administration which claims that George Bush -- regardless of the outcomes of those debates -- has the power to violate those laws when he sees fit. Anyone who doubts that this is so should just read Mansfield’s article, or listen to Dick Cheney.

(3) It is impossible to say anything about Ariel Sharon without making large numbers of people angry with you, but this post from the Heretik conveys my view of what is most notable about Sharon now that his public life has ended. Regardless of what he was or did, the ability to change one’s central convictions or at least to accept that one’s long-entrenched approach needs to be transformed is an extremely virtuous, and extremely rare, character trait. The most seemingly intractable conflicts can be resolved only by such transformations.

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