Total Information Awareness

Stuart Taylor, Jr. has written a concise, balanced and thoughtful piece in the newest Atlantic which tracks nicely with my earlier musings on the unhealthy, unprecedented - and at times illegal - consolidation of power in the Executive branch as undertaken by the Bush administration over the past five-plus years. Says Taylor [emphasis mine throughout]:

Many of us mistook the steady expansion of civil liberties during the fifty-five years after World War II as a natural, inevitable, and essentially irreversible evolution. Then came 9/11, and with it the knowledge that suicidal infiltrators were eager and able to murder us by the thousands - unless we could catch them first.

So the battle was joined over whether and how to recalibrate the balance between liberty and security. The Patriot Act soon became its focal point, and a source of bitter debate. In fact the act's 156 sections were mostly reasonable, incremental, overdue enhancements of long-established investigative and surveillance powers. That's probably no accident: it was passed (and is being reauthorized with changes) by Congress after public debate, and in full public view. In short, it represents just the sort of rebalancing that should occur in a democracy struggling to reconcile competing, fundamental values.

But until recently, the scare rhetoric about that law has obscured a far more consequential development: the succession of claims by the Bush administration that the commander-in-chief has near-dictatorial powers to wage war against terrorists, at home as well as abroad - often in secret and certainly without public consent. Without consulting Congress, and in defiance of criminal laws, this administration has claimed (though not always used) powers that are arguably more sweeping than any since Lincoln's. [...]

But most [presidents since Lincoln] worked with Congress when feasible, as did Lincoln. George W. Bush prefers to act unilaterally - so much so, in fact, that avoidance of oversight seems at times to be his principal goal.

While Taylor catalogues the Bush administration's efforts on this front, the main target of his wrath is Congress - due to its almost total neglect of oversight responsibilities and sweeping abdication of power to the Executive branch. Without Congress stepping up to the plate, there is little hope that this imbalance will be corrected otherwise. Taylor argues that we would be wrong to hold out hope that the Supreme Court will be able to preserve Constitutional protections/institutional integrity on its own. Not unless it has Congressional action to fall back on.

Today, the Supreme Court is widely seen as the principal check on presidential overreaching. But courts can decide only a few narrow issues as cases come before them, and cannot legislate detailed rules to restrain the president. What's more, as the late Chief Justice William Rehnquist once wrote, the courts historically have shown "reluctance ... to decide a case against the government on an issue of national security during a war."

That is, unless the courts see the president and Congress as being at odds.

Taylor contends - rightfully so in my opinion - that the Bush administration has only reluctantly backed off in the face of court challenges and only as much as necessary (less so in some instances). Underlying this show of compliance, is the intention to regroup and push back with the same sanctioned policies once the dust settles - as has been evidenced by the subsequent ebb and flow of such controversial matters. Even when Congress has entered the fray (as with the McCain Amendment), the Bush administration has indicated that it has every intention of ignoring inconvenient laws - even ones the President is then signing. The best, and perhaps only, solution would be a resolute, determined and persistent assertion of power on the part of Congress.

Judging by the current makeup of both Houses, and the predictably craven tactics of folks like Senator Pat Roberts, I don't expect to see such a vigorous defense of the Constitution forthcoming. Nevertheless, Russ Feingold has certainly done his part to turn up the heat by introducing a resolution to censure the President for his illegal conduct in connection with the NSA warrantless surveillance scandal.

I think there are some legitimate complaints about the timing and method of Feingold's bold action, and if anyone is looking for some cogent 'for' and 'against' arguments, I would recommend the Carpetbagger and publius on one side, and Glenn Greenwald on the other. In my opinion, Feingold could have handled the execution with greater political deftness and a better sense of timing, but now that the gauntlet has been thrown down, Democrats would be extremely foolish to back away from supporting the measure. I hope more come to this realization in the ensuing weeks.

At its root, Feingold's maneuver represents one step in the march toward a Congressional assertion of power that Taylor suggests is needed to re-align the skewed separation of powers arrangement threatening our Constitutional structure. Now I don't expect the Republicans to fall all over themselves signing on to this measure, but some should bravely step forward and endorse it regardless - or a variation that they find more palatable. While it's easy to chalk up their reticence with respect to censuring the President to mere partisan politics, remember, many Democrats put forward censure proposals for Bill Clinton, or were willing to support ones floated by others. But hey, that was for something infinitely more important to our country - more basic and fundamental to our Constitutional system - than the assertion that the President can violate specific statutes at will in a time of never-ending war.

While I am not naive enough to be surprised by the GOP's lack of support for Feingold's resolution, I must admit that I was somewhat taken aback at some of the vitriol heaped on Feingold for his move nonetheless. It's not that the GOP simply disagreed with him, or ignored his ploy. Rather, they unleashed irresponsible and malicious attacks on Feingold's character and motives. Once again, echoing the concerns I raised in this post discussing the pernicious tendency to equate any and all dissent with treason.

For example, Senator Wayne Allard (R-CO) accused Feingold of "[siding] with terrorists." How patently absurd. Bill Frist followed a similar story-line in an interview with George Stephanopolous last week:

FRIST: ...I really am surprised about it because Russ is just wrong. He is flat wrong. He is dead wrong. And as I was listening to it, I was hoping deep inside that the leadership in Iran and other people who have the U.S. not in their best interest are not listening because of the terrible signal it sends.

STEPHANOPOULOS: You're saying that censure resolution weakens America abroad?

FRIST: Yes. Well, I think it does because we are right now in a war, in an unprecedented war, where we do have people who really want to take us down and we think back to 9/11 and that war on terror is out there. So the signal that it sends that there is in any way a lack of support for our Commander in Chief, who is leading us with a bold vision in a way that we know is making our homeland safer is wrong. And it sends a perception around the world and, again, that's why I'm saying as leader at least of the Republican side of this equation, that it's wrong, because leadership around the world of our sworn enemies are going to say, well, now we have a little crack there. There is no crack. The American people are solidly behind this president in conducting this war on terror.

How ridiculous. The United States holds itself out as an exemplar - the shining city on the hill - to which the rest of the world should aspire to emulate. We are the torch bearers of democracy and freedom, and we hope that by our example and actions we can help other peoples bring about democratic evolutions in their respective lands. But somehow, Frist and Allard suggest, if we were to allow one of the most basic forms of democratic expression - dissent and criticism of our leaders when they have acted improperly - to be made public, we will weaken our position abroad? Because our enemies will learn that we hold our leaders accountable, and that we are a democracy?

Silly me, I thought we were trying to emphasize these principles, not hide them away as if they were something to be ashamed of. Wasn't that the point that the Bush administration and it's supporters were trying to make in the aftermath of Abu Ghraib: that we would show the world how things work better in a democracy by holding the responsible parties accountable? Now what are we going to tell the Iraqis about democracy?

Further, what, pray tell, will the knowledge of such a censure resolution do for these enemies? How will Osama use Feingold's censure exactly? How will it modify his behavior? And why was the treatment of Clinton not an equally grievous national security breach?

Fill in this blank: Osama wasn't going to attack the US again, but Feingold's resolution made him change his mind because [insert here]. Or it made it easier for Osama because [insert here]. And what of Iran? What if Frist's deepest fears come to fruition and Iran catches wind of the fact that Congress is considering censuring Bush for certain of his actions relating to the warrantless surveillance program. As soon as they find out, they'll proceed to...do what exactly?

This line of reasoning from Frist and Allard is as preposterous as it is poisonous. If anything, the mullahs in Iran and Osama's al-Qaeda would take heart to learn that in the new version of America envisioned by such politicians, Constitutional protections are ignored at will by its leaders, dissent is not tolerated, leaders are not held accountable for serious misconduct and any criticism of the government would be considered treasonous - equivalent to siding with the enemy.

In fact, they would probably feel right at home.