Sunday, January 15, 2006

Jonathan Alter: Dictatorship in the Making...

...or something like that. Newsweek's Jonathan Alter wrote this week that since Samuel Alito is deferential to Executive power, we are perliously close to Bush asserting more authority than the U.S. Constitution grants and he will effectively "castrate Congress" While I have come to expect this sort of panic inducing logic from the fringe Left, I was a little shocked to see it had made the mainstream media. Alter basically asserts that the President, in wartime, has sought to expand the role of the Executive on the basis of his role as Commander-in-Chief. He contends that Alito would be the kind of Justice to basically tell Congress to take a hike and follow the assertion that the President may break the law, if the circumstances of war neccesitate it. Here is my breakdown:

1. I am still not entirely convinced the Bush broke the law when he ordered the NSA to wiretap. I have read numerous opinions on the subject and cannot find one definitive work which address it succinctly. That being said, let us assume that Bush did break the law in ordering the wiretaps. Based on all the information, the wiretaps were of limited scope and dealt with known connections to terrorist phone numbers. The wiretaps were not used to win an election or destroy dissidents but rather it would appear that they were employed to gather intelligence against a group of people who decided a long time ago they were not going to play by any sort of rules much less laws. In light of this was Bush correct to order the wiretaps? Yes, and if it prevented attacks, then a moral imperative has also come home to roost as well. The question then becomes one of whether or not breaking the law is acceptable in some cases where the law is insufficient or circumstances dictate it to save the nation. Abraham Lincoln had no qualms about suspending habeus corpus to keep Maryland out of the Confederacy, but history has judged he was correct to do so because the Republic mattered more than the laws of the Republic. Now, those on the Left will cry foul on this logic saying that no one is above the law and for them I would point no further than the fervent defense of those individuals who leaked the NSA program in the first place. The New York Time has so much as said that those who broke the story were patriots and protecting the country from Presidential power run amok. Just so we are clear on the issue, the President used his Constitutional authority as Commander-in-Chief to order the wiretaps and in doing so may have stepped on a law which was not in the Constitution and that is a problem. However, a former NSA employee goes to see a NY Times reporter and gives up the details on how we might be tracking terrorist and he gets hailed as a patriot for having the courage to stand up the Orwellian dictators in waiting. I am not sure how that logic works other than it is based on the intent of the individual and in arguing that a whistleblower is exempt from the law, you have made the case the President is exempt as well because in both cases they both were intending to save the country. The problem is the whistleblower, abetted by the media, announced to every terrorist how we were listening to them so it is possible they all went out and bought disposable cell phones in order to beat the system. Nice going guys.

And on a side note, if Bush had opted to not do the wiretaps and we were hit again, how many times over would the media and the Left bash Bush for not protecting America? How many times would the NSA program be heralded as something that could have been implemented to save Americans but was not? And is there anyone who actually believes that if Bush were to say he was following the law as a defense to that criticism it would hold any water at all? No one, but I digress.

2. Alter's second contention is that this whole process is about stripping Congress of its Constitutional authorities. I think is a stretch in the sense that if Congress would actually step up and use its Constitutional authority, the President would not need to step up and do it for them. Congress is painfully slow to do anything and in the words of Chancellor Palpatine from Star Wars: Revenge of the Sith "The Senate is much too unfocused to fight a war" Now while I have no desire to see the rest of the movie played out here in America, Palpatine's point applies here: 535 people split into two major parties with their own factions are incapable of moving with any speed or consensus. Alter suggests that FISA could have been amended and I think that to be a pipe dream in itself, especially considering you would have to tell 535 Congresspeople and their aides what you were doing it and who really believes they would keep a lid on it. The Patriot Act, whether you agree with or not, is a fine example of how Congress cannot get their act together on anything meaningful to the war on terror. Of course I am not advocating castrating Congress, but in light of the events which occured on 9/11 and based on what we saw this week in the Alito hearings, I am not sure anyone with common sense can expect the Congress to manage the hunting down of terrorists in any productive manner. Aside from that, Congress has a lower approval rating than the President by about 20% at this point and though I do not think following polls is an adequate defense it does illustrate what little faith the public has in the institution. Part of the Congress' problem seems to lie not so much with what the President is doing but with their own incomptetence and the lack of public trust in their abilities to handle any crisis.

3. Alter further explores the issue of Congress' lost power by quoting James Madison to make the point that Congress should handle matters of war not the executive. I think Alter needs to research his history a little. According to this article by The Independent Institute, Congress could do far worse for themselves and declare war as the Constitution perscribes. Of course in doing so, it was give the President almost unfettered power to do whatever he likes to the economy and to civil liberties. According to the article the notion of declaring war was toyed with during the Kosovo crisis and ultimately shot down because of the power it places in the hands of President. If Alter and the Left think what President Bush is doing is bad now, take a look at this:

President Wilson created the War Industries Board, which spawned scores of committees that took control of various industries. He also created the Committee on Public Information, better known as the Creel Committee, after its chairman, advertising executive George Creel.

The Creel Committee subjected Americans to a massive campaign of pro-war propaganda. It recruited scholars to write pro-war articles and entertainers to make pro-war statements. It even recruited religious leaders to preach pro-war sermons.

At the same time, Wilson suppressed dissent by having the Post Office deny the privilege of the post to hundreds of newspapers and magazines. Many went out of business.

Thousands of resident aliens were summarily arrested and deported. These included not just Germans, but suspected Communists from many countries.
Some who were arrested but not deported languished in jail until President Harding freed them in 1921—three years after the war ended.

Article I of the U.S. Constitution permits the federal government to suspend the writ of habeas corpus “when in cases of rebellion or invasion the public safety may require it.” This permits the president to arrest and detain anyone without trial for indefinite periods.
The U.S. faced little threat of invasion in World War I, but the clause has been interpreted to apply during time of war.

In World War II, President Franklin Roosevelt held captive more than 110,000 Japanese-Americans, whose loyalty was suspect solely because of their Japanese heritage. Many were U.S. citizens.

FDR also took even fuller control over the nation's economy. He instituted the same controls Wilson did in World War I and added to them comprehensive wage and price controls, nationwide rent control, rationing of many consumer goods and central planning of production.

Here you have two Democrats exercising even greater power and more egregious infringements upon personal privacy than Bush has ever thought about. Can you imagine the uproar if Bush had a board recruiting pastors to preach war sermons? They went ballistic over padding Iraqi newspapers with good news. What is even more chilling is the wholesale interference with the free market and the economy which is no doubt every Democrats dream to take the corporations and have them shift their wealth down to the poor, but I digress.

The bottom line is I think the any expansion of Presidential power has been measured and reasonable, especially in light of past Presidents in a time of war. I have seen very little credible evidence that Bush or any other member of the Administration has abused any expanded powers. If the intent is the measure by which we judge the validity of law breaking(and the NY Times in their defense of whistleblowers suggests that it is) then there is very little wrong with the President's use of certain weapons to further the fight against terrorism. Ideally we would like the President to work with Congress, make the proper adjustments to the law, and use that to keep Americans safe. However, the present state of Congress negates any reasonable possibility that these kinds of compromises can be achieved and even if they were, it could not be done in secret. As for the assessment of intent, I think it is important to monitor such expansions of power to make sure they truly remained aimed at the bad guys and at no point do they unduly infringe upon the very people they intend to protect. I ultimately think Alter is practicing journalistic alarmism. I happen to think the Bush Administration has acted with good intent in whatever powers they have taken on. It is not like anyone in Congress, especially those on the other side of the aisle were actually offering anything other than cricticism with intent to destroy. I think the American people can accurately ascerain intent and in any event, the Bush term effectively ends in 2008 with absolutely no evidence he intends on overthrowing the Consitution.

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