Strengthening Constitutional Self-Government

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GWB on USA Patriot Act and NSA

President Bush gave a speech this morning in which he vigorously defended the NSA program that intercepts communications between suspected international terrorists abroad and their interlocutors within our borders. He noted the carefully delineated program and the frequency with which it is reviewed and with which members of Congress have been briefed about it. He contrasted the Constitutional basis for his authority to conduct the program and the illegality of the behavior of those who leaked information about it.

He also criticized those in the Senate who seem to be playing politics with the reauthorization of the USA Patriot Act.

Good job, Mr. President!

Now I’d like to see some of the legislators who were briefed about it step up to the plate.

Hat tip: Power Line.

Update: The estimable Herr Professor Doktor Schramm beat me to it (below). I’ll add a little to the mix, from Abraham Lincoln, who deserves even more space on this issue than I’m going to give him:

I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

The real root of the debate is how serious the threat posed by al Qaeda and its allies is. President Bush takes the threat seriously. Do his critics?

Discussions - 24 Comments

"The real root of the debate is how serious the threat posed by al Qaeda and its allies is. President Bush takes the threat seriously. Do his critics?"

And have you stopped beating your wife yet?

Martin:

Your comment doesn’t make any sense to me. Your cited example is a complex question -- an informal logical fallacy -- because it contains more than one question and one answer will be applied to both questions. The first question is, "Do you beat your wife?" The second question is, "Have you stopped?"

Prof. Knippenberg writes, "The real root of the debate is how serious the threat posed by al Qaeda and its allies is. President Bush takes the threat seriously. Do his critics?"

There is only one question here: Do the critics of President Bush take the al Qaeda threat seriously?

My first reaction when hearing the news today is how would the democrats react if there were another terror attack and President Bush had done nothing to gather the necessary information required to halt such a disaster? It seems like they would be up in arms regardless which course of action the President took.

Joseph:


It’s odd to imply that Bush’s critics - including, I presume, those in his own party - don’t sufficiently understand the threat of al Qaeda. The real root of the debate is how wide the zone of unlimited executive powers is. There are institutional reasons why Presidents tend to seek to expand that zone, and this administration has done so even more than the previous one.

But even if Presidents do so with the best of intentions, their efforts need to be vetted and resisted vigorously if necessary. That’s the real problem with the Yoo analysis on this and other matters: it’s not attentive to the separation of powers concerns as seen from the other branches or from the standpoint of the system as a whole. The old problem of who guards the guardians doesn’t disappear during wartime.

Brett

bona fides on national security. That’s why I said that there is a threshold question the Democrats have to address.

At the same time, I think that Lincoln’s arguments are hard to dismiss, and, indeed, to answer.

JR - Thanks for the tutorial. I’ve been reading this blog long enough to know that "the President’s critics" regarding the Global War on Terror/Violent Extremism are frequently accused, explicitly and implicitly, with aiding and abetting the enemy. And Bush himself lobbed this one today himself, as well. The question is really akin to "Do those who aid and abet terrorists really take the threat from Al Qaeda seriously?" Maybe from a certain pedantic standpoint the question wasn’t a perfect match, logically, with the wife-beating query, but it was equally absurd.

Martin:
I am one of the many who accuse the President’s critics, aka Jane Fonda, John Kerry, Ted (hic) Kennedy, Nancy Pelosi, Howard Dean, the New York Times, etc, etc, ad nauseum, ad infinitum, of aiding and abetting the enemy. I stand by that. The question is do they do so knowingly or unknowingly?
BTW, when did you stop beating your wife?

What is all the fuss about this domestic spying? Look people, especially you liberals, it works like this. If you are’nt chatting on the phone with Akbar planning to blow up a building or kill some "infidels’ then you you have nothing to worry about. Pretty simple.

Joseph - As with most metaphors, Lincoln’s is most instructive where it fails. He is right that medicine for a sick person is irrelevant to the well person. But, that works when the sick person and the healthy person are separated physically or temporally.

In our current case, the sick person and the well person are the same, and a better metaphor might be the risks and benefits of chemotherapy, in which the sick cells and the healthy ones inhabit the same person at the same time. Because we are interdependent, as the behaviors of a soldier at Abu Ghraib reflect on, and impact on life in our homes and businesses. So do the behaviors of CIA agents, Presidents, and Chiefs of Staff.

Second, I have taken this from your quote of Lincoln:

" Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus,"

According to my understanding, it is not this most recent revelation regarding our President that threatens these rights, but rather various portions of the "Patriot Act" that directly and explicitly threaten just those freedoms.

As is often the case, we are encouraged to look molecularly at this one measure in order to blind ourselves to the gestalt which is one that has me very concerned for our civil liberties.

I agree with Brett. The beauty and durability of our system is the continued existence of checks and balances. When those are no longer possible, then we are headed directly into real trouble.

Fung,

You omitted the last part of Lincoln’s sentence:

throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

What’s crucial is that, for Lincoln, harsh measures may be necessary during wartime to preserve the regime that wouldn’t, and indeed shouldn’t, tolerate them during peacetime. We can debate about what measures this war requires, but first we have to agree that there’s a war.

As far as we can tell, there will always be a war on terrorism. Only if we are serious about that fact can we begin to understand what it means to make arguments about the plenary nature of executive power during wartime. Plenary power is tolerated in a constitutional regime only because it is not truly plenary; it is limited in some fashion by time, political accountability, or the operations of other institutions. If there will always be a war on terrorism, then one previously available limit on plenary executive power - the end of the conflict - will be unavailing.

Brett,

You have put your finger on a crucial issue, though I’d have framed it a little differently.

I’m not sure that the current terror threat will "always" be present, but we’re likely in for a long struggle. Under the circumstances, we are faced with some difficult choices. How much executive power do we tolerate, given the best assessment of our security situation and the threat we face? Do we attempt to place strict legislative limits on the president (which I think are constitutionally dubious, given the Article II grant of executive power)? Do we rely on the fact that there are elections every four years to curb presidential abuses and every two years to send Congress a message about how to use its appropriations and oversight powers, and on the fact that the people we elect are the products of our political culture? Abuse of office in this country typically produces peculation, not tyranny. I’m far from excusing the former, but in the short-to-medium term, I’m not much worried about the latter.

For me, the bottom line is that our political leaders have internalized limits. The NSA case is a good example. There was review and consultation with Congress. The domestic surveillance was apparently restricted to international contacts. And it was quite limited.

Joseph - I would disagree (imagine!).

Certainly, there is some kind of war going on, but I would argue that there is an important difference between Lincoln’s war, which, despite the modern southern view, was more or less forced upon him, and Bush’s war, which he more or less forced on the world. It is the perception of this difference that leads many of us to suspect Bush’s use of the war to justify and otherwise achieve expanded powers for the presidency, and reduced liberties for the people.

Fung said:

According to my understanding, it is not this most recent revelation regarding our President that threatens these rights, but rather various portions of the "Patriot Act" that directly and explicitly threaten just those freedoms.

As is often the case, we are encouraged to look molecularly at this one measure in order to blind ourselves to the gestalt which is one that has me very concerned for our civil liberties.

Great points. The Right is going into its usual hysterics here, and going through all kinds of verbal and legal gymnastics and contortions to make it look as though it is the Dems and liberals who are "politicizing" this, that they don’t care about preventing further terrorist attacks, etc. So, all of the focus goes into whether Bush has broken the law here. There is considerable bipartisan concern that he has, but all of that is dismissed as petty details (!!!). In the meantime we have Quaker peace groups being deemed a "threat" by the Pentagon and students who want to examine primary sources to write research papers on Communism (isn’t this something that the respectable Right should actually encourage?) are being questioned by Dept. of Homeland Security officers. But when those stories are reported anywhere other than FoxNews, NewsMax or Powerline, then it’s all dismissed as liberal media lies, by guys like these here at NLT. I don’t like the direction this country is going, frankly.

I would argue that there is an important difference between Lincoln’s war, which, despite the modern southern view, was more or less forced upon him, and Bush’s war, which he more or less forced on the world.

In what sense did Bush "force" this war? I don’t see how a president responding to an attack that killed 3,000 Americans can be accused of "forcing" a war on the world. By that logic FDR forced a war on Japan by daring to respond to the Pearl Harbor attack. For that matter, I suppose Lincoln could’ve turned a blind eye to Fort Sumter....

The difference being that FDR retaliated against the nation that attacked us, whereas Bush invaded a country that did not (and really, was not equipped to), a country that had no WMDs and no substantive connection to the perpetrators of the attacks on 9/11. The idea that invading Iraq was truly a "response" to 9/11 is highly questionable.

Fine, but this bit about surveillance had nothing to do with Iraq--it was a response to 9/11. Whatever one might think about the administration’s Iraq policy, it’s clear that Bush didn’t "force" the War on Terror on the world.

I should probably let Fung answer for him/herself, but considering that the main theatre, the "front line" if you will, in the war on terror, as it is being promoted by the Bush administration, is Iraq. And if we consider Bush’s dismissal of the UN, his minimal (and fading) coalition, it seems fair to say that the war on terror, as it is primarily being fought presently, was, largely, "forced on the world" by Bush.

Right, we get that you oppose the Iraq War. Fine. But the NSA surveillance began long before the invasion of Iraq. Believe it or not, there are some political discussions to which Iraq is irrelevant. This is one of them.

Thank you, Kelly. I agree with everything you wrote. In addition, I would reiterate that part of the Bush tactic is to encourage us to look microscopically, and not at the gestalt of the Bush agenda regarding the combination of "wartime" adjustments and the interdependent loss of civil liberty at home. How many times in Bush’s recent speeches did he mention 9/11? The more Americans are afraid, then the more they are likely to give up their freedoms in return for protection (another word that Bush repeated ad nauseum.

I have been saying this on this blog for a long time: People are more willing to give up their freedom when they are promised protection from a terrible enemy. Even more, when they look at the short-term, microscopic view, as opposed to the long-term, macro-level view. Hitler had his Jews and his depression, and his Brown-shirts. Koresh had his Federal government and the threat of Hell. Mao had the Japanese and the capitalistic West. All were presented as viable threats and reasons for people to hand over their freedom and their critical abilities.

Tim K. (comment 13) is right.

But Fung, let’s go back to your original point in Comment 13. You are apparently willing to defend Lincoln’s violations of civil liberties, but not Bush’s, on the grounds that Lincoln had a war "forced on him," while Bush forced his war on the world. I’m curious as to whether you mean the war in Iraq or the larger war on terror. The former is irrelevant to this discussion, inasmuch as the NSA wiretaps took place long before the invasion of Iraq occurred. If you mean the latter, I just want to know in what sense the war on terror (which began with 9/11) is something that Bush forced on the world.

As I think I’ve made clear elsewhere, I’m not crazy about the wiretaps either, but to say Bush forced the GWOT on the world sounds like the old "Blame America First" mantra.

John -- I see your point. I did mean the Iraq war, and I concede its irrelevance. I would suggest that Bush DOES use the GWOT in a similar way; to frighten us into handing over our freedom, but you are right that he inherited that situation. I would also argue that he has made it worse, but that is another discussion.

There’s no question that we’re being frightened into surrendering our liberty. I’d rather die a free man in a terrorist attack than live in a police state. (Props to David Tucker for that juicy quote.)

Perhaps a quote like that could serve as a rallying cry for some kind of collaboration between right and left?

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