Breathtaking Power Grab

Just when you thought this administration couldn't get any more blatant in its effrontery about claiming and wielding power, along comes the surveillance blitz. I've talked to people who think it's because even the administration people know their legal case is shaky and want to get ahead of public opinion. What's fascinating and distressing is how quickly and completely so many people fall into lockstep behind the arguments, perhaps the shakier the better.

What emerges with clarity from the weeks since the National Security Agency domestic surveillance program was made public is that this administration is single-mindedly devoted to increasing the power of the government, and more specifically of the executive branch, and has used the 9/11 attack and the subsequent "war on terror" to justify this goal. It is worth remembering that Dick Cheney, Don Rumsfeld and a few others were veterans of the Nixon administration who saw Watergate not as a loathsome abuse of power, but as an unfortunate event that discredited and downgraded the prestige and power of the executive branch and made it more difficult to exercise, in Hamilton's words, "energy in the executive." The terrorist attacks provided a perfect opportunity.

Truly, as Randolph Bourne explained during World War I (which people in what in retrospect seems a touch of foolish optimism called the Great War), "war is the health of the state." We had reason to be warned and wary early on when Vice President Cheney explained, I think with a certain detectable gleefulness in his dour demeanor, that this war might go on for generations. It's almost enough to make one think that the health of the state – the opportunity to build government power – is the reason and the terrorists a handy justification. I'm not so paranoid as to think they have purposely avoided capturing Osama bin Laden so as to keep the potential threat always out there. But it was certainly convenient for the U.S. government that bin Laden showed up on audiotape last week making new threats, giving president Bush an opportunity to invoke him once again in his speech at the NSA.

I would argue, on the other hand, that almost everything the administration has done since 9/11 suggests a fundamentally unserious approach to bin Laden and al-Qaeda. Intelligence was poor, to be sure, but it was not nonexistent. After 9/11 the administration didn't use what was available about Afghanistan but went in cold and blundered about, failing to capture either Mullah Omar or bin Laden. Then it attacked Iraq, which had not been involved in the 9/11 attacks (and didn't have WMDs either), which stretched U.S. military forces to the breaking point and served as a recruiting ground for terrorists.

All these activities had the effect of building up the state without posing any more than trivial inconveniences – in some cases bolstering – the terrorists who pose the most concrete threat to the United States. Is it too fanciful to suggest that building the state rather than destroying or even seriously weakening al-Qaeda was the primary goal?

ASSERTIONS OF POWER

At any rate, administration spokespeople including Vice President Dick Cheney, Attorney General Alberto Gonzales and the president himself have been conducting a full-court offensive to persuade Americans that the program of surveillance of Americans without a warrant from the special secret court created by the Foreign Intelligence Surveillance Act (FISA) by the National Security Agency (NSA) was not only legal but virtually obligatory following the terrorist attacks of 9/11. The campaign is no doubt intended to soften up public opinion in advance of hearings scheduled for Feb. 6 by the Senate Judiciary Committee.

The trouble is, every argument the administration makes rests on shaky legal ground.

The administration argument, in line with the 42-page document released last Friday by the Department of Justice last Friday, has essentially three components. First is that the U.S. Constitution gives the president, as Commander in Chief, what the advocates have chosen to call inherent "plenary" power to do pretty much whatever he deems necessary or desirable if it can be said to have been done as part of defending the country from foreign attack or the threat of foreign attack.

Second, administration people argue that the congressional resolution passed after September 11 for Authorization for Use of Military Force (AUMF) authorized the president to begin the warrantless NSA domestic monitoring program. As the DOJ document last week put it, in the AUMF Congress "gave its express approval to the military conflict against al-Qaeda and its allies and thereby to the president's use of all traditional and accepted incidents of force in this current military conflict – including warrantless electronic surveillance to intercept enemy communications both at home and abroad."

Third, administration spokespeople argue that the administration consulted with Congress on this program, so what's the problem? If Congress had objections, it could have and should have raised them. Since it didn't do so when informed of the program, all this second-guessing now only helps the terrorists

INHERENT NONSENSE

The argument that the president has virtually unlimited inherent "plenary" power to decide what constitutes a threat and do whatever he deems necessary, perhaps including breaking or ignoring existing laws, to counter it, is a virtually complete misreading of U.S. constitutional history.

Read on . . . .