Michael Kinsley has a brilliant column about the Bush administration's astonishing legal position that the inherent authority to do whatever they want in the name of pursuing terrorism cannot even be considered by a court to determine their constitutionality.
For years, all the intelligence agencies have been tussling with the American Civil Liberties Union over documents about the innovative Bush administration policy of locking people up in foreign countries where they can be tortured without the inconvenience of anyone knowing about it or bringing up, you know, like, the Constitution. It is not yet clear -- though there is little reason for optimism -- whether the courts will let them get away with it, but the official position of the executive branch under President Bush is that the U.S. government can lock you up anywhere in the world, torture you and tell no one about it. And if someone does find out and starts talking trash like "habeas corpus" or "Fourth Amendment," too bad: It's all okay under the president's inherent powers as commander in chief. Congress -- unbeknownst to Congress -- approved it all in its resolution shortly after Sept. 11, 2001, urging the president to fight terrorism. And the president deputized the CIA and other agencies to go forth and use this authority, in documents that you can't have and that may or may not exist.
I love the line "unbeknownst to Congress" in there. The AUMF authorized the President to go to war in Afghanistan; it did not authorize him to do anything he wanted without regard to the Constitution. If they had a plausible constitutional argument to make for such authority, they wouldn't have to resort to this nifty little catch-22:
Meanwhile, in another federal court, the ACLU has been arguing with the National Security Agency about the wiretapping of international phone calls to and from the United States. The 1978 intelligence reform law made clear as cellophane that these agencies had no authority to wiretap citizens of this country and in this country without permission from a judge. So clear, in fact, that the president doesn't deny that his wiretapping program violates the 1978 law. Instead, he says that Congress overruled that law in its 2001 resolution to oppose terrorism. That, plus the usual inherent powers of the presidency.What's more, government lawyers say, they can prove all this. Or at least they could, but they can't, because the evidence must remain secret for national security reasons. And what are those reasons? Well, the reasons why the reasons why the program is okay are also secret. And without this evidence, there cannot be a trial. Sorry.
Kinsley also nails perfectly the answer to the familiar refrain from the President's defenders that "they're not after you, they're after the terrorists, if you haven't done anything wrong you don't have anything to worry about."
It's true that you and I are not being grabbed on the streets and sent to a former secret police torture-training camp in Godforsakistan. Nor is the government eavesdropping on your international phone calls or mine. Probably. Because I like you, I'll forgo the usual ominous warning about how they came after him and then they came after her and then they came after you. I'll even skip the liberal sermonette about how even bad guys have rights.
But your rights and mine are not supposed to be at the whim of the government, let alone the president. They are based in the Constitution and the willingness of those we put in power to obey it -- even as interpreted by judges they may disagree with. The most distressing aspect of this story is the apparent attitude of our current rulers that the Constitution is an obstacle to be overcome -- by conducting dirty business abroad or by wildly disingenuous interpretations of laws and the Constitution.
Just look at what these supposed worshipers at the shrine of "strict constructionism" and "original meaning" have done to the 2001 anti-terrorism resolution. Did any senator who voted for this resolution have any idea that he or she was, in essence, voting to repeal all the protections for individuals against government agency abuse that Congress enacted in 1978?
Precisely right.
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Of course this may be just wishful thinking, but what are the Republicans going to say about all these secret powers when a Democrat moves into the White House?
Presumably we will only have Fair and Balanced elections conducted by the Fox News polling department from now on. Does anyone really think we will have an election in the middle of a nuclear crisis with Iran?
They'll shriek like a sack full of angry bobcats that the Democrats are attempting to overthrow our government and install a new socialist dictatorship (the sad thing is they will probably be right and have only themselves to blame).
Scott H: "Of course this may be just wishful thinking, but what are the Republicans going to say about all these secret powers when a Democrat moves into the White House?"
The exact words, of course, are hard to predict, but I imagine that they'll involve some combinations of 'the crisis is over; Bush has defeated terror'; 'President [Dem Pres Name Here] can't even win in Iraq - why should she have powers here'; 'I love my country, it's my government I fear'.
Basically, take the 1990's, and update as needed.
I suspect they will say the same thing they said in 93 and 94, when Clinton was pushing for many of the same powers that the Patriot Act gave to Bush - that it's an outrageous grab for political power that could be misused by the government against its enemies. Don't think for a moment that either party is the least bit reticent to exchange scripts and completely flip their position when circumstances render their previous position no longer beneficial to them politically. They've been doing this for a very long time and people continue to vote for them. They know damn well that they can at least fool enough of the people enough of the time.