January 26, 2006


The Power-Madness of King George: Is Bush turning America into an elective dictatorship? (Jacob Weisberg, Jan. 25, 2006, Slate)

It's tempting to dismiss the debate about the National Security Agency spying on Americans as a technical conflict about procedural rights. President Bush believes he has the legal authority to order electronic snooping without asking anyone's permission. Civil libertarians and privacy-fretters think Bush needs a warrant from the special court created to authorize wiretapping in cases of national security. But in practice, the so-called FISA court that issues such warrants functions as a virtual rubber stamp for the executive branch anyhow, so what's the great difference in the end?

Would that so little were at stake. In fact, the Senate hearings on NSA domestic espionage set to begin next month will confront fundamental questions about the balance of power within our system. Even if one assumes that every unknown instance of warrant-less spying by the NSA were justified on security grounds, the arguments issuing from the White House threaten the concept of checks and balances as it has been understood in America for the last 218 years. Simply put, Bush and his lawyers contend that the president's national security powers are unlimited. And since the war on terror is currently scheduled to run indefinitely, the executive supremacy they're asserting won't be a temporary condition.

This extremity of Bush's position emerges most clearly in a 42-page document issued by the Department of Justice last week. As Andrew Cohen, a CBS legal analyst, wrote in an online commentary, "The first time you read the 'White Paper,' you feel like it is describing a foreign country guided by an unfamiliar constitution." To develop this observation a bit further, the nation implied by the document would be an elective dictatorship, governed not by three counterpoised branches of government but by a secretive, possibly benign, awesomely powerful king.

According to Attorney General Alberto Gonzales, the putative author of the white paper, the president's powers as commander in chief make him the "sole organ for the Nation in foreign affairs." This status, which derives from Article II of the Constitution, brings with it the authority to conduct warrant-less surveillance for the purpose of disrupting possible terrorist attacks on the United States.

That power already sounds boundless, but according to Gonzales, this sole organ has garnered even more authority under the congressional authorization for the use of military force, passed in the wake of the Sept. 11 attacks. [...]

Bush's message to the courts, like his message to Congress, is: Make way, subjects.

Mr. Weisberg has worked his panties into the tighter knot, but Hillary Clinton put the risibility of their case better, Rift Between Parties Over NSA Wiretapping Grows (Jim VandeHei, January 26, 2006, Washington Post)
Speaking to reporters, [Sen. Hillary Rodham Clinton (D-N.Y.)] took aim at what she called a lawless assertion of power: "My question is, why can't we do what we want to do within the rule of law?" [...]

She said established procedures for approval for such spying from the Foreign Intelligence Surveillance Act would have protected civil liberties and national security.

"Their argument that it's rooted in the authority to go after al Qaeda is far-fetched," Clinton said. "Their argument that it's rooted in the Constitution inherently is kind of strange because we have FISA, and FISA operated very effectively and it wasn't that hard to get their permission."

Note that her argument requires us to accept that the routine spying carried out by pretty much every American leader since George Washington in the Revolution was illegal up until 1978? In point of constitutional fact, the Executive has not been and can not be bound by Congress in this area, not does the Court have jurisdiction to rule in the matter--that's just how separation of powers works.

Posted by Orrin Judd at January 26, 2006 2:10 PM

It is amazing what the fevered little minds of the Angry Left can dream up.

Posted by: pchuck at January 26, 2006 2:36 PM

"And since the war on terror is currently scheduled to run indefinitely..."

I must question Mr. Weisberg's choice of words here. Is it conscious or subconscious that he says that the WoT is "scheduled" to run indefinitely? As if the President has ultimate control over how long it may or may not last? (Just long enough for the "Bush Crime Family" to gain total control, perhaps?)

Was anyone certain when WWII would end? Did anyone think it would go on "indefinitely?" And if he did, did he believe that FDR "scheduled" it to go on so?

It would appear that the Left is disturbed that the WoT might go on indefinitely. So much so that they would be relieved it ended sooner rather than later...even it meant we were on the losing end.

Is that being too uncharitable? I think not.

Posted by: Brian McKim at January 26, 2006 2:48 PM

"Speaking to reporters, [Sen. Hillary Rodham Clinton (D-N.Y.)] took aim at what she called a lawless assertion of power: "My question is, why can't we do what we want to do within the rule of law?"

Hillary, because he runs the country like a plantation. AND YOUUUUU KNOW WHAT I MEAN

Posted by: h-man at January 26, 2006 2:49 PM

"...nor does the Court have jurisdiction to rule in the matter"
Unless they rule that FISA was an unconstitutional infringement of executive power by the legislature.

Posted by: jd watson [TypeKey Profile Page] at January 26, 2006 3:21 PM

I have not read the DOJ’s brief but the “sole organ” language has been commonplace since at least Curtiss Wright Export Corporation in 1936: "President as the sole organ of the federal government in the field of international relations"

Weisberg should read that case; my favorite SC case. It will make him pee his pants it is so broad an assertion of executive rights.

"Sole organ" now joins "unitary executive" as Princess Bride words for the left. Inconceivable that they are really that stupid.

Posted by: Bob at January 26, 2006 4:07 PM

The doctrine of separation of powers refers to separating the government into branches (three in our case) none of which has total control. This is also called the system of checks and balances, because each of the three branches acts as a check on the power of the others. The executive branch is bound to obey the laws written by the legislative branch; a chief executive cannot decide for himself which laws he feels like obeying, and which he doesn't, under any circumstance.

Posted by: maha at January 26, 2006 4:18 PM


The Legislative Branch can't write laws that aggrandize the powers of the other two branches to it, anymore than they can take away the powers of the legislature.

Posted by: oj at January 26, 2006 4:32 PM

"fundamental questions about the balance of power within our system" Balance of powers, what balance of powers? Bush is controlling the White House, the Congress, and soon the Supreme Court. To quote a great American lady: it is a good thing. It's just good to see the liberals hyper-ventilating and their panties twist into knots.

Posted by: ic at January 26, 2006 4:33 PM

"an elective dictatorship"? Like the Iranians'? Didn't the MSM criticize Rice for labeling Iran dictatorial? They insisted that Iran was democratic because they have elections. Last time I checked, we still have elections, and we are going to have another one in November. Are the American people 'dictating' themselves? After two and a half centuries, American people don't know how to vote anymore. Otherwise they surely would vote the way their Hollywood/MSM betters with superior intellects instructed them to. Americans are so dumb, they don't even know what's good for them, and don't even know they are living in a dictatorship.

Posted by: ic at January 26, 2006 4:54 PM

When they win the next election they can declare the W.O.T. over.

Posted by: Genecis at January 26, 2006 6:02 PM

someone should pin lady marmalade down, and ask her "so what would you do, instead of the wiretapping ?". make the phony come up with the goods. might be tricky since she is completely removed from any venue where such impertinence might happen.

Posted by: toe at January 26, 2006 6:52 PM

"a CBS legal analyst, wrote in an online commentary, "The first time you read the 'White Paper,' you feel like it is describing a foreign country guided by an unfamiliar constitution."

5 to 1 says he thinks that the US constitution protects abortion and buggery. unfamiliar? bossh.

The question for Hillary is: "Eschelon?"

Posted by: Robert Schwartz at January 26, 2006 10:15 PM

Hannity asked on of the impeachment Congress-critters (from the CBC) about 'Echelon' yesterday, and he even played part of the Steve Kroft "60 Minutes" story about the NSA (from Feb. 2000.

Bobby Scott (D-VA) said he didn't know anything about Echelon AND admitted that if what Sean said was correct (about electronic spying), then Bill Clinton was as bad as Bush.

Yes, it is time to ask Hillary about Echelon. And Hamas. After all, she was quite cozy with a number of Islamic fundys while she was First Lady, no?

Posted by: jim hamlen at January 26, 2006 11:02 PM

she locked lips with arafat's wife, at the occassion when that loathsome beast made the claim that the israelis were poisoning their water supplies .

Posted by: toe at January 27, 2006 7:48 PM