January 10, 2006


The Law and the President: In a national emergency, who you gonna call? (Harvey Mansfield, 01/16/2006, Weekly Standard)

EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes Americans uncomfortable and upset. Even those who do not suffer from squeamish distaste for self-defense, and do not mind getting tough when necessary, feel uneasy. A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. 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.

This home truth gets little recognition from critics of the Bush administration's surveillance activities in the war on terror. Some of its defenders, too, seem unaware of the full extent to which the Constitution addresses the problems we face today and how useful and relevant its principles prove to be.

One can begin from the fact that the American Constitution made the first republic with a strong executive. A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not to mention a veto of legislation. 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. [...]

[T]he 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. "Necessity knows no law" is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it--and that twofold need is just what the Constitution provides for.

The notion that enemies of the republic ought to be afforded all the rights, privileges and amenities of a republican is not just novel but bizarre.

Posted by Orrin Judd at January 10, 2006 2:14 PM

Not if your self-hatred puts you on the other side.

Posted by: Luciferous at January 10, 2006 2:49 PM

You're absolutely right. It's novel. It's bizarre. It's also one of the things that makes this nation great. It shows we won't stoop to the level of our enemies, that we will adhere to our principles. It shows that principles trump expedience, that we won't be ruled by fear. It shows that we're strong enough that we can live by our principles, not so weak that we have to abandon them when faced with the unknown.

Posted by: apc at January 10, 2006 3:44 PM

Our enemies are suicidal murderers. That's no reason to emulate them and make the Constitution a suicide pact.

Posted by: Luciferous at January 10, 2006 3:57 PM


So, let me get this straight - our forbearance makes a terror cell of perhaps 10 men, equipped with modern weapons and the desire to use them on the most defenseless civilian targets possible, equivalent to a street-corner thug who steals purses from old women?

Second question - were Hiroshima and Nagasaki examples of our adherence to our 'principles'? If not, why not?

Third question - do terrorists from Saudi Arabia, having been trained in Afghanistan, and plotting in Germany, deserve 4th Amendment rights in America?

Posted by: jim hamlen at January 10, 2006 4:00 PM

APC of course posits the traditional argument of the unserious critic of this war, which is this: in adopting those tactics necessary for an active, aggressive, and effective defense of our people - we become no better than the enemy. That is of course, a load of codswallop. The Constitution is not a suicide pact. Adherence to one's principles in times of duress is a mark of greatness, however adherence to one's principles when faced with an unscrupulous enemy intent on mayhem and murder is suicide and a mark of stupidity.

APC and his ilk are those fellows who will loudly and proudly declare they're preference for principle over prudence, that is until they're next in line for the block. Then all we'll hear is wailing and the gnashing of teeth while they clamor for someone to do something, anything, to save them. Of course if they are saved, look for them to criticize the manner in which it was done.

Posted by: Robert Modean at January 10, 2006 4:33 PM


Actually, the system you wish would reduce us to the level of our enemies, indeed have us collaborate with our enemies. That's why we've never pretended in the past that our enemies deserve to be treated like the rest of us.

Posted by: oj at January 10, 2006 4:47 PM

This discussion seems so strange to a veteran of the 70's and 80's, or to one familiar with the history of the Second World War.

It encompasses the notions that defeat is an option and that defeat may be compelled by a unwillingness to kill all of the people of the other side.

Of course it is a goal of out statecraft and of our imperial stewardship that it not come to that. Our best hope of this is to show them, show the enemy, that when the storm surrounds us, we shall prove our ancient spirit and power as we did at Dresden and Hiroshima and as we stood ready to do in all those silos and submarines over the years.

Posted by: Lou Gots at January 10, 2006 5:18 PM

Would have helped to use the silos.

Posted by: oj at January 10, 2006 5:21 PM

Shouldn't we make Grog educate APC about how awful we have been in the world, subverting peaceful Communist utopias and imposing our will for our own benefit?

I mean, I've got answers to both of them, but both of their arguments can't be true at once.

Posted by: David Cohen at January 10, 2006 5:26 PM

So OJ, it seems there is concensus to replace your term bizarre with suicidal.

APC, your sentiments are truly noble ... and truly sentiments in time of war. If only we were facing a sentimental enemy, instead of beheaders and suicidal bombers of women and children. Sigh.

Posted by: Genecis at January 10, 2006 5:34 PM


The Confederates were sentimental foes and we were beastly to them.

Posted by: oj at January 10, 2006 5:44 PM

First of all, calm down a little. I have absolutely no problem with spying on our enemies and taking whatever action is necessary to kill them or render them powerless. What I have a problem with is defying the Constitution and illegally spying on American citizens right here in the United States. Having said all that:

Jim-- 1. are there civilian targets more defenseless than old women with purses? 2. That's a specious question; it has no bearing on the issue at hand. 3. see above, they're not US citizens.

Robert--Thank you for codswallop. Hadn't heard that in years. You're entitled to your opinion on the validity of adherence to principles, of course, but don't you dare presume to know how I'd react in a fight for my principles. I'm quite capable of fighting for my principles and just as willing to die for them, if need be.

oj--All due respect, I think adhering to our principles elevates us above our enemies, and I don't see how subjecting them to the full power of our court system is collaboration. As to treating our enemies like the rest of us, Samuel Alito himself said today (and I'm paraphrasing) that no man is above the law and no man is below the law.

Again, I have no problem with spying on our enemies. I just think that US citizens should be offered the protections of the Constitution, and not be subject to the whims of a President who thinks he's above the law.

Posted by: apc at January 10, 2006 5:54 PM

I don't get it. You're fine with stopping them in theory, just not in practice? or at least not when this Republican is the one practicing it in which case the actions you otherwise approve are unconstitutional and illegal?

Posted by: oj at January 10, 2006 6:20 PM

You are taking the easy way. You are that saying that there must be too classes, citizens and enemies.

What would you do when our enemies are citizens? Which is the difficult question. Or are you suggesting that is impossible?

Regardless the patriot act should be amended to accomdate the concerns of Senator Craig (and the NRA) no matter what OJ says.

Posted by: h-man at January 10, 2006 6:33 PM

Interpreting the Constitution also requires taking into account the advamcements in technology that not only can be used by the general public, but by people hostile to Western Civilzattion in general. If the new technologies render the normal pattern of bureaucratic intertia in getting anything approved to be a major security problem in actually finding the people trying to harm us, then you've got ot adapt to the times within the framework of the Constitution.

The White House (and as of now, most of the public) says the foreign-to-domestic intercepts are within the power of the president. Those who disagree seem to simply think the current FISA system is adequate to the task, 9/11 to the contrary. If they want to be taken seriuosly, they'd be better off coming up with a way of streamlining the FISA system rather than just standing in the courthouse door screaming 'no'.

Posted by: John at January 10, 2006 6:40 PM

Senator Craig's concerns are those of white separatists and militias who are the enemy.

Posted by: oj at January 10, 2006 6:42 PM


Better to just scrap FISA as unconstitutional.

Posted by: oj at January 10, 2006 6:47 PM

"white separatists"

Absurd. Slander too. Craig is on the board of the NRA, and is merely seeking to stave off future harrassment of lawful gun owners, after the present Islamic unpleasantness is resolved.

Posted by: h-man at January 10, 2006 7:30 PM


At first glance, I thought oj's remark about Senator Craig was just facetiousness. But if not, I might still excuse oj due to ignorance--after all, Idaho is how many time zones away from New Hampshire? oj can't possibly be expected to know anything about such a far-away place...

Posted by: Kirk Parker at January 10, 2006 7:41 PM

apc: If we're convinced that the constitution is not being violated -- and I am -- then there's no problem.

Posted by: David Cohen at January 10, 2006 8:59 PM

Actually, what really scares TIme Zone Boy is that Idaho might actually be more of what New Hampshire claims to be, instead of what New Hampshire actually is: a little place wedged in there between Maine, Mass., Vermont and Quebec, trying hard to import all the worst features of each. Idaho only has to worry about what it imports from the Upper Left Washington.

Posted by: Raoul Ortega at January 10, 2006 9:34 PM

Idaho is a hotbed of the black helicopter crowd--he's doing the bidding of whackos.

Posted by: oj at January 10, 2006 10:44 PM

As opposed to your Senators?

Posted by: joe shropshire at January 10, 2006 11:42 PM


Remember the movie "Black Sunday"? Would you have spied on Bruce Dern (a US citizen)?

And I am not sure what "principles" you are talking about. As many here have noted, it seems the NSA program is legal. Congress knew about it (and did not object), there were internal reviews (every 45 days), and from what I can tell, only one 'case' has been built from it (the Brooklyn Bridge bomber). How does this make us like the enemy?

Posted by: jim hamlen at January 11, 2006 1:36 AM

Sununu opposes it because he's Lebanese.

Posted by: oj at January 11, 2006 7:43 AM

I do not see why we should treat the unscrupulous and dishonorable with any kind of honor or concern for scruples. If they didn't want us to respond that way they shouldn't have stooped to that level in the first place. This is war, not Parcheesi.

Payback, and all that.

Posted by: Mikey at January 11, 2006 10:43 AM