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.

Wednesday, February 22, 2006

Why is Congress interfering with the President's wartime decisions?

I learned more, by far, about the port controversy and accompanying political implications from reading the discussion in my Comments section last night than I did reading all of the newspapers and watching all of the television news reports combined. Following up on that discussion, I have a few observations which I think are worth making:

(1) It is really quite astounding to watch Congressional Republicans fall all over themselves advocating legislation, on the grounds of national security, to force the President to reverse his decision about who is going to operate our ports. Many of these same Republicans have been defending Bush’s violations of FISA on the ground that Congress lacks constitutional authority to restrict or regulate the President’s Article II power to act unilaterally with regard to matters
of national security.

As Atrios quite amusingly (but quite insightfully) pointed out in his post entitled "A Brief Reminder":

Bush does, of course, have inherent authority under Article II to make all decisions relating to national security.

According to the Bush Administration's Yoo theory of Executive power, which these Congressional Republicans have been pitifully invoking to argue for their own powerlessness as a means of justifying the President’s flagrant violations of the law, neither Congress nor the courts "can place any limits on the President's determinations" regarding protection of the nation against terrorism because "these decisions, under our Constitution, are for the President alone to make."

Based on this theory, Pat Roberts just recently announced that FISA is unconstitutional because it impermissibly impinges on the President’s "inherent authority" to make decisions about how the nation ought to be defended without interference from the courts or Congress. Based on that reasoning, how can Congress possibly interfere with the President’s decisions concerning how our nation’s ports will be defended from terrorist threats?

The President has a war to fight. Under Article II, decisions about how to defend our nation are his alone to make. What right does Congress have to stick its nose into decisions by the Commander-in-Chief about who ought to safeguard our ports and how our country should be protected? If it wants, Congress can simply stop funding these programs. But they have no right to dicatate to the President how he should defend our nation in a time of war.

(2) Every time Bush speaks about terrorism, his contempt for the notion that Congress has any meaningful role to play in national security is palpable. Bluememe yesterday insightfully observed that the language Bush used when asked about this issue glaringly reveals this contempt:

Bush took the rare step of calling reporters to his conference room on Air Force One after returning from a speech in Colorado. He also stopped to talk before television cameras after he returned to the White House."I can understand why some in Congress have raised questions about whether or not our country will be less secure as a result of this transaction," the president said. "But they need to know that our government has looked at this issue and looked at it carefully."

Got that? There's Congress on the one hand. And what Bush considers "our Government" on the other. And never the twain shall meet.

Bush has been speaking in these condescending, dismissive tones to and about Congress ever since he was elected. For whatever reasons (2006 elections, a weakened and unpopular President), the highly principled Republicans in Congress appear to have suddenly decided that they won’t accept their assigned role as submissive rubber-stamps for the White House's national security decrees. But haven't they already staked out the position that they have no role to play when it comes to defending the nation against terrorism?

(3) The substance of this controversy to the side, it is quite clear this is going to be a politically harmful episode for Bush personally, if not for Congressional Republicans as a whole. It seems highly unlikely that Congressional Republicans will hand Democrats a tougher-on-terrorism platform in the middle of an election year. That means that either Bush will have to back down from his veto threat and do a Miers-like reversal (a reversal which was unthinkable for the first four years of his Presidency), or stay resolute about effectuating this deal and ensure a public and serious split between him and the Republican Congress.

As several people noted in the Comments section here last night, there is a sweet poetic justice in watching all of this unfold. Having spent the last four years squeezing enormous political benefits out of cynical fear-mongering over Arab terrorists and despicable accusations that his political opponents are aiding and abetting terrorists by opposing his foreign policies, Bush now finds himself crying victimhood over what he is depicting as these very tactics. One reaps what one sows, and all of that.

(4) There is no shortage of speculation about why Bush is so insistent about proceeding with this deal even in the face of the intense political difficulty it is creating. If George Bush has one unbending belief (besides the limitlessness of his own power), it’s his belief in doing business deals, especially those which reward people and entities whom he wants to reward. Cronyism pervades virtually everything this Administration does – from the reconstruction of Iraq to the Kartrina-ravaged Gulf Coast, and, of course, at the very core of the political appointment process in Washington.

With all of the other more glamorous corruption and law-breaking scandals that crop up with dizzying regularity, the pervasive cronyism which undermines and often destroys almost every American foreign and domestic policy is often overlooked. If I were to speculate, I would guess that cronyism connections are (at least partially) what drove this transaction originally and what is driving Bush’s oddly emphatic commitment to it now.

I also think that the same motive which almost certainly influenced the decision to ignore Congressional law and the FISA courts when eavesdropping is at play here -- namely, Bush’s now ingrained belief that he rules over all national security matters unilaterally and with unchallengeable authority. This core belief likely led him to scoff at the idea that anyone was going to tell him what decisions to make about national security. Certainly, no Congress can tell him who is going to operate our ports. That decision is his alone to make.

(5) There was an extremely interesting issue raised in the Comments section to the prior post. The issue was raised by numerous comments including this comment by Hypatia, this one by DClaw1, this one by Heresiarch and, finally, this anonymous comment.

The issue is this: Republicans have spent the last five years cynically exploiting every issue they can find, particularly ones involving national security and terrorism threats, for domestic political gain, and it hardly requires any guessing to know that they will escalate those deceitful efforts heading into the mid-term elections this year. Karl Rove has all but said so.

Operating from the premise that this Administration poses a genuine and profound danger to our constitutional principles and is poised to do long-lasting, perhaps irreparable, damage to our country –- a proposition to which I certainly subscribe -- what limits, if any, ought there to be on efforts and strategies to politically defeat Bush and his followers?

If Democrats have an opportunity to inflict serious political harm on the Administration and its enablers in Congress through a scandal which may not be truly meritorious but can be a potent political weapon (and I’m not saying that's the case for Portgate - I’m simply posing this question hypothetically), ought Democrats do what Bush followers have done for the last 5 years -- namely, use whatever instruments they can to politically harm the Administration, even if there is some cynicism involved in doing so – or ought they maintain higher and more intellectually honest standards and forego political gain if it means cynically exploiting a scandal?

I’m not asking that question to make a point, but am raising it because, as the discussion in Comments reveals, Bush opponents clearly have different views on this matter and it’s worth exploring. Digby posted yesterday about this very dilemma yesterday and said this:

Sometimes I get criticism from my readers for suggesting that the Democrats must play on the same playing field as the Republicans. They say, "we shouldn't become them." But I never suggest that the Democrats should lie, cheat or play dirty as the Republicans do. I suggest that they wise up and stop pretending that Republicans are anything but ruthless adversaries and adjust accordingly. They can be beaten with smart strategies, but not unless the Democrats internalize the connection between the nice men and women they are working with on capitol hill every day with the thugs they hire to get elected. They are all cogs in the same cutthroat political machine.

Should Bush opponents have a "win-at-all-costs" approach whereby they use any and all weapons, or ought they confine their attacks to ones they genuinely and passionately believe are meritorious? I think that’s a real question.

(6) Numerous Bush followers in the blogosphere and elsewhere are joyously citing Republican opposition to Bush’s port deal as proof that Republicans do stand up to Bush, have a mind of their own, and are therefore exonerated of the charge that they have transformed their political movement into a cult of blind loyalty unburdened by political principles. I’ll have more to say as this simplistic drum is beaten ever more loudly, but for now, I will simply note the comment I made here on the day I wrote the authoritarian cult post, the Digby, Atrios and Dave Neiwert about my argument with which I expressed agreement.

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