Steven Taylor at PoliBlog has a post today asking “what is a wartime president?” and which I highly recommend.
About halfway through he notes:
To truly see the President, and all future Presidents until terrorism is quashed, as â€œwartime presidentsâ€ is basically to say that the presidency, henceforth, is an office we should consider as a war office.
If “wartime” has become so “normal” that it will persist without any clear definition of when and how we will know we have “won” and if, therefore, “‘extraordinary’ is the ‘new normal’,” then:
If that is true, letâ€™s amend the Constitution and rewrite the laws. â€œNormalâ€ requires regular rules. Only â€œExtraordinaryâ€ should allow for unusual, temporary powers.
This is indeed the proper perspective. If we fail as a nation to find domestic spying without any oversight even as much as “bothersome” (to take one expression I saw on a pro-Bush blog) then we are implicitly saying that what we find bothersome is checks and balances themselves. I would hope we would not want to go down that road, which has been well travelled in post-Cuban Revolution Latin America, post-Soviet Russia, and elsewhere.
We may indeed need some serious consideration of constitutional, as well as statutory, reform, for–as Steven noted in another post today–the Article II defense, which states that the President has the authority for such acts as domestic spying under the Constitution, clearly fails the basic premise of the Constitution: No leaders is above the law, and checks and balances must be in place to guard against arbitrary (or overly “energetic”) executive power. But the energy needed to combat real threats is not inconsistent with the checks and balances of democracy. What is inconsistent is the assertion that the authority already exists–an assertion that becomes a public post-hoc justification only when the arbitrary acts themselves become public.
It may be that our checks and balances, as we currently practice them, are inadequate. We may need to delegate certain additional authorities, but those can come only with additional checks and balances to prevent the inevitable over-reaching.
If it is indeed true that the checks and balances are, on the one hand inhibiting necessary “energy” in the executive, yet on the other hand are not deterring arbitrary executive acts, then the cure is checks and balances of a different sort, not dispensing with them in the name of “emergency” and “war.” (Modest steps towards “parliamentary” accountability of the executive, anyone?)
If the rules, statutory and constitutional, are indeed unsuitable for the era, then only public debate and–to the extent the debate leads to a consensus on needed changes–actual reform of the rules can be the proper means of coping with an allegedly transformed situation. Otherwise, we are at least implicitly acquiescing in a descent into an authoritarian “national security” state the implications of which we can only begin to comprehend and the damage from which we may never be able to correct. If we cannot have this debate openly, and accept wherever it might lead–even if that is defeat of the party in power and/or impeachment and judicial proceedings against violators of the law–then it seems to me the terrorists have already defeated our democracy, with an assist from the cabal that has ruled from within the executive branch since 9/11.
UPDATE: See Arms and Influence for a well reasoned take. Among Tom’s points are:
If you buy the argument, They can’t tell you any of those details–they’re secret, I commend you to look at how the Europeans and the Israelis handle terrorist threats. [...] What’s striking, perhaps, about the age in which we live is how poorly the political class in this country has risen to the defense of democracy and the rule of law as most effective measures against terrorists, not quaint relics of a bygone age.
[The emphasis in italics is his; the bold is mine]