Presidential power and partisan affiliation.

As I watch Attorney General Alberto Gonzales testify before the Senate Judiciary Committee on the matter of President Bush’s domestic wiretapping program, I’m struck by a particularly bizarre aspect of this.

I cannot imagine many of these senators supporting such a surveillance program if it were created by President Bill Clinton or a hypothetical President Al Gore or John Kerry. (Or, for that matter, a hypothetical President Hillary Clinton.) They’d be outraged. They would rightly point to Congress’ restriction on wiretapping, post -Nixon, via the Foreign Intelligence Surveillance Act, barring the president from engaging in any such acts. They would say that the president does not have unlimited power, in times of war or otherwise, and that when the president violates a law, that is a crime.

But it’s not the hypothetical that interests me. It’s that Republicans who defend these actions on the part of the president are making it possible for a future Democratic president to have the same powers. The question isn’t whether President Bush may ignore law when it finds it useful, it’s when any president may ignore law when he finds it useful. If we turn President Bush into a king, we will turn a future President Warner into a king. I’d find that every bit as objectionable as what President Bush is doing now, with the possible exception that I’d find President Warner’s overreaching more in line with my own interests.

I have to wonder how many Republicans who support President Bush’s newly-claimed powers would have supported those same powers for President Clinton, or for future Democratic presidents. I suspect not very many.

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

12 replies on “Presidential power and partisan affiliation.”

  1. Personally, in a similar situation, I would be all for Bill Clinton or another Democratic president doing such an action. President Bush was not just pulling random numbers from the phone book, but authorizing the ability to watch people who have shown an overt hostility towards the United States and connections to terrorist organizations. Similar action by a Democrat in the White House would be responsible leadership, just as it is for President Bush.

  2. CR, I think that perhaps I didn’t make an important point clear here. I don’t mean to speculate what Republicans may do if a Democratic president were in the exact same situation. Instead I’m speculating on what response that Republicans would have if a Democratic president said that he was above the law under any other circumstances.

    If President Hillary Clinton wanted to order the murder of Christian terrorists and their supporters (such as Eric Rudolph or anybody who advocates the murder of OB/GYNs who perform abortions), she could do so, under that logic. Or if President Al Gore thought that Republican protesters were “providing aid and comfort to the enemy” by opposing his war on terrorism, he could order them detained indefinitely, saying that he is above congress and the judiciary in his effort to keep the nation safe.

    You might recall that President Clinton ordered that Tomahawk missiles be launched against a factory in Khartoum and that cruise missiles be launched against parts of Afghanistan and Pakistan in an effort to kill Osama bin Laden. That was on August 20, 1998. That was three days after his grand jury testimony in which he came clean about his relationship with Monica Lewinsky, and just as the impeachment proceedings began to ramp up. Under President Bush’s logic, President Clinton could have declared that he had a right to lie under oath in order to maintain a unified front in a time of war against Osama bin Laden and al-Qaeda, and that Congress had no ability to remove him from office under those circumstances. In fact, I think he could have even declared that there would be no presidential election in 2000 because, again, we were at war with terrorists, and he should simply remain on until the war on terrorism had been completed.

    When we allow the executive to obtain as much power as he sees fit, eliminate the ability of the congress to balance the executive, and pretend that national security concerns constitute a “war,” that’s what you call a monarch.

  3. Waldo wrote:

    I cannot imagine many of these senators supporting such a surveillance program if it were created by President Bill Clinton or a hypothetical President Al Gore or John Kerry. (Or, for that matter, a hypothetical President Hillary Clinton.)

    They wouldn’t. And for me that it’s one of the supremely irritating part of politics (on both sides of the isle). If everything were reversed it would be the Dem’s supporting and the Repub’s objecting.

  4. No one seems to be asking whether it was actually only “people who have shown an overt hostility towards the United States” who were wiretapped. The other missing question is what the NSA used as criteria to select people for wiretapping. Using the example above, what is “shown” or “overt” or “hostility”? Without legislation or the courts to determine the standards for each qualifying element, the potential for abuse is high (I will spare you SCOTUS citations identifying this problem).

    From the statements I have seen, thousands of numbers were tapped but no useful data came of it. This would suggest either that there are thousands of terrorist operatives making phone calls in the US or that in fact many innocent citizens were “suspects” under this program. Can anyone point me toward any credible information on this? Has the attorney general or DOJ given any indication of how citizens’ rights were balanced with the need for national security?

  5. I don’t care if it was President Bush, President B. Clinton, President M. Warner, President H. Clinton or President Adam Sharp! The president does not and ought not have the authority to break laws specifically designed to contrain and channel executive authority.

    If you Republicans think I’m lying, get a Democrat in the White House and watch principles trump partisanship.

    I dare you.

  6. What no one, from the Attorney General to administration flacks to CR UVA has been able to explain is, if these were all truly terror suspects, why couldn’t the government go to the FISA court.

    But even that question misses the point, because the answer, if it existed, doesn’t even matter. Neither, really, does the actual truth.

    Once the president decides his vacillations are the law and gets away with it, the details (secret murders, spying on political enemies, illegal detentions, etc.) don’t really matter.

    A Congress that gave one damn about democracy or even preventing its own demise would move forward with the Constitutional remedy for high crimes.

  7. The best excuse that the AG could summon yesterday was that it’s really just very inconvenient to have to go to FISA within 72 hours. He couldn’t explain why he never asked Congress to change the process to make it simpler, he couldn’t explain why such modifications were never part of the PATRIOT Act, he couldn’t explain why he never bothered to mention the wiretapping program to a single member of the Judiciary Committee (those Senators who most need to know about it), and he couldn’t explain why the president felt that he needed permission for everything else in the PATRIOT Act, but not to violate eavesdropping laws.

    It was a bad scene.

  8. Lest anyone forget:
    “Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”–President Bush in 2004

    Whatever anyone has said about President Bush as a leader, many (most?) have considered him at one time to be a good, honest, decent guy. He may have “lied” about the evidence leading to the invasion of Iraq, but more likely, he simply saw what he wanted to see. But ain’t noone who can say that he didn’t stand up and LIE in a speech to the American people. And it’s not as if he were caught in a position where he had to say something in the interest of national security, where he was on the spot and was forced to cover something up. He volunteered it, unprovoked. I know many democrats who were pissed when Clinton lied about his sex life; they didn’t think it was an impeachable offense, but still. . .under scrutiny, he lied to the American people. Where is the Republican outrage when the President lied to the American people on an issue just a tad less trivial than Monica Lewinsky? What else is he doing with Article III? He compares himself to Lincoln–Lincoln didn’t stand up and say “That Martial Law thing y’all are hearing about–I didn’t invoke it. Just a rumor. Constitution is still in tact. Habeas corpus. . .it’s all good.” Reasonable minds may disagree as to whether Bush’s Article-III-on-Silly-Putty is in the best interest of the American people or in the realm of being close to resembling Constitutional. (I don’t actually believe that. It’s a rhetorical device.) I’m more worried about the fact that he stood up and told us all that he wasn’t doing that which he actually was doing. And this is a lie he volunteered. Imagine the lies he might tell/has told when put on the spot.

  9. CR UVa, do you know of any evidence other than public statements by administration officials that those were the only people who were wiretapped? Considering that they willfully violated the legal requirements for any oversight outside the Executive Branch, I think it’s a reasonable suspicion that they weren’t just doing things that everyone would support and that the FISA court would have quickly granted warrants for.

    I care enough about my country that it isn’t good enough for me for the president to stand up and say “trust me, I’m doing the right thing, but I can’t even let members of Congress with the highest security clearances or a secret court look at the details.”

  10. They wouldn’t. And for me that it’s one of the supremely irritating part of politics (on both sides of the isle). If everything were reversed it would be the Dem’s supporting and the Repub’s objecting.

    Really? Do you have any evidence of this? Any past comparable issues where this was the case?

    Just because Republicans have sacrificed all their principles in the pursuit of power doesn’t mean that everyone has.

  11. Jim E-H wrote:

    Really? Do you have any evidence of this? Any past comparable issues where this was the case?

    I don’t need any evidence. This is politics, and I’m responding to a hypothetical with another hypothetical. I don’t think I need to justify anything.

    Unlike state and local politicians (referring specifically to state and local in VA), I don’t think very many politicians elected to federal office, be they republicans or democrats, are very principled to begin with (and party loyalty, in my book, isn’t a definition of principled). And if they were to begin with, I don’t think it’s something they are able to hang on to for long.

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