No Executive Blank Checks Without Balances
I must vigorously dissent from the views expressed by my friend The Moose about the president's NSA domestic surveillance adventure. I'm proud that we can have this kind of useful debate within the big-tent confines of the DLC. And I hope this post won't be misused and abused to bash my antlered colleague, whose defense of Bush on this one subject is but a small tree in the forest of his condemnations of W.
The heart of The Moose's argument is that freewheeling executive power is essential to the prosecution of the War on Terror, and that those of us--not just Democrats, but many Republicans--who would fence in that power by requiring observance of the rule of law are either mindless of the threat we face from Jihadism, obsessed with civil liberties absolutism, and/or blinded by Bush-hatred to the need for extraordinary national security measures.
I plead innocent to all three counts of this indictment, and suggest The Moose is missing three characteristics of the War on Terror that make some limits on executive power not only advisable but essential: (1) this is a protracted, Cold War, that cannot be successfully waged in an atmosphere of permanent emergency; (2) congressional and judicial oversight of executive counter-terrorism activities is the only way we can ensure an effective war on terror; and (3) conspicuous respect for the rule of law is the only way we can sustain domestic support for the war on terror, and the only way we can successfully offer our own institutions and values as an alternative to Jihadism in what is preeminently an ideological battleground.
There is one, and only one, exception I would make to these three principles: the possibility of nuclear terrorist acts. As of yet, no one in the administration has claimed the NSA surveillance program was in any way targeted on that possiblity (indeed, it wasn't targeted at much of anything, best we can tell), and moreover, this administration seems determined to do as little as it can to actually deal with the nuclear terrorist threat, if it requires multilateral action or spending money on things like port security.
More generally, the administration has been painfully slow--despite warnings from the 9/11 commission and congressional mandates to get moving--to deal with reforms in how intelligence agencies compare, analyze, and act upon raw intelligence data. U.S. law enforcement agencies had plenty of data on the 9/11 conspirators before they acted; more data swept up by the kind of program Bush later authorized wouldn't have addressed the inability of the system to understand and act on that data.
In addition, any consideration of emergency executive powers has to involve a close look at the alternatives to scofflaw behavior. If FISA was deemed inadequate by the administration, it could have and should have gone to the Congress controlled by its own party in 2003 and asked for amendments, which most Democrats would have supported as well. The habit of demanding unlimited executive power when it's unnecessary is one of the most unsavory aspects of this administration's behavior, as illustrated most recently by the president's statement that he would not feel constrained by the prisoner treatment rules sponsored by Sen. McCain, and duly enacted by Congress.
And that, in the end, is probably the heart of my difference of opinion with my friend The Moose. The legal case for the president's NSA ukase is shabby at best; the editors of The New Republic, hardly wimps when it comes to the War on Terror, demolished it in an editorial last week. You can be hard-core on the War on Terror and still be hard-edged in criticizing the administration's we'll-do-what-we-see-fit position, and even those who agree with Bush on this particular subject need to begin with the presumption that his critics have a legitimate and patriotic case to make. (After all, even Joe Lieberman joined the Democratic filibuster against the Republican effort to make the Patriot Act permanent with little debate).
The Moose concluded his latest post by proudly calling himself a "Hamiltonian mammal" who favors a strong executive. Well, I'm a Jeffersonian mammal by temperament and tradition, and though both strains of the American political dialogue have much merit, Jeffersonians tend to understand that while Lincoln, TR, and FDR, among others, have vindicated faith in a strong executive, we also have to have a system that deals with presidents like Harding, Nixon and George W. Bush. That means no executive blank checks without balances, especially when those balances are entirely consistent with a robust defense of our country. --