Strengthening Constitutional Self-Government

No Left Turns

How to Lose Friends and Influence People

I had meant to blog on this piece by Victor David Hanson when it first appeared, but was on the Grand Family Christmas Tour. Anyway, it’s worth our attention now, since last week’s discussions of wiretaps brought repeated reference to the precedent of Abraham Lincoln.

The entire op-ed is worth reading (and it’s brief), but his point is that wartime presidents like Lincoln and FDR were able to build consensus by appointing some of their political opponents to important positions. He notes that three recent critics--John Murtha, Richard Clarke, and Wesley Clark--could all have remained friends of the administration had they been given a respectful hearing:

There are lessons here in managing a difficult war. We must never forget age-old considerations such as pride, honor and status. Washington is a Darwinian place where the ambitious arrive, leaving friends, family and birthplace behind to calibrate their new self-worth by the degree to which they are considered important — and needed.

Discussions - 4 Comments

I honestly don’t think Murtha was due a "respectful hearing" from the White House. The idea that he just recently turned from hawk to dove is just DNC talking points spun like a top.


by appointing Colin Powell to head state, or letting Kennedy write the No Child Left Behind Act, or signing the hideous McCain/Feingold CFR, or being the first president since Zach Taylor to leave his veto pen in his shirt pocket during his first term? And what did it get him? Friends across the aisle?

I recall how Bush 41 extended his hand to the Democrats, reneging on his "Read my lips" pledge. A few years, a bitter Bush would moan in his nomination speech:

At my first Inauguration, I said that people didn’t send us to bicker. I extended my hand, and I think the American people know this, I extended my hand to the congressional leaders, the Democratic leaders, and they bit it.

"New tone" Dubya gave it a shot with Democrats and now all we hear in the "I" word. Maybe FDR lived in a different America (he grabbed his veto pen some six hundred times), when reaching across the political lines was a gentlemanly thing to do. But I would no more counsel Bush to reach out more to these fools than I would have him play with a rattlesnake.

Bush’s dalliances with the wiretap are getting attention far and wide. Even Barron’s financial news has mentioned the "i" word. If you have a subscription, you can read the whole thing here

Otherwise, here are some highlights

Unwarranted Executive Power
The pursuit of terrorism does not authorize the president to make up new laws

"....Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed. Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him."

"Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There’s not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

....If we don’t discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror. "

Presidents before Bush--including Carter and Clinton--have claimed that the executive has inherent constitutional power to order warrantless searches when national-security concerns make these reasonable (vide the "detect and prevent" demands of counterterrorism).

Even if we set aside Bush’s argument (endorsed by Democrats such as Cass Sunstein) that the AUMF provides authority for the surveillance, there’s the more basic principle that an ordinary piece of legislation such as FISA should be interpreted so that it’s in conformity with the Constitution (meaning in this case, that the ordinary law doesn’t attempt to deny the president his inherent constitutional authority derived from our basic law). This principle of interpretation will rule, and is why the impeachment buzz is an ideological fantasy of the ill-informed.

About the Donlan column, notice how he leaps from the language of "stretch" (suggesting a policy dispute between Bush and his critics) to the language of "willful disregard." This leap is a giveaway that he has a weak case and is trying to spin his way out of the problem, but it won’t fly, because as Colin Powell just noted the other day, Bush isn’t even stretching his authority. Powell said: "I see absolutely nothing wrong with the president authorizing these kinds of actions. . . . He was trying to protect the nation. And we have done things like this in the past."

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