Power That Bush Can't Just Take
Since the holiday season is a time of generosity and goodwill toward all -- even those who torture the Constitution and hoodwink the nation into ill-advised wars -- let's do a little thought experiment.
Let's assume that George W. Bush's claim of virtually unfettered presidential power is not just an exercise in reclaiming executive perks that Dick Cheney believes were wrongly surrendered after Watergate. Let's assume that Bush genuinely believes he needs the right to blanket the nation with electronic surveillance, detain indefinitely anyone he considers a terrorist suspect, make those detainees disappear into secret, CIA-run prisons, and subject them to "waterboarding" and other degradations. Let's assume for the moment that the president's only desperate motivation is to prevent another day like Sept. 11, 2001.
Let's go even further and assume he decided to invade Iraq for the same reason. Even in a thought experiment, we can't forgive the way he snowed the country into believing there was some connection between Iraq and the Sept. 11 attacks; nor can we forget the way he hyped the flawed intelligence about weapons of mass destruction -- we're being generous here, not stupid. But let's assume that however calculated and cynical the machinations, and however wrongheaded the decision to go to war, the underlying motive was purely to avoid another catastrophic terrorist attack.
All right: Given these overly kind assumptions, can this administration's usurpation of power somehow be justified?
Every time I work it through, the answer I come up with is no. The president has no right to ignore the rule of law as if it were a mere nuisance.
The problem is that if the president really were determined to do anything it takes to prevent another terrorist strike, why not suspend habeas corpus, as Lincoln did during the Civil War? That way you could arrest everyone who could possibly be a terrorist, or who once lived next door to a suspected terrorist's uncle, and you could hold those people as long as you wanted. Why stop at surveillance of international telephone calls and e-mails? Why not listen in on, say, all interstate calls as well? Or just go for it and scarf up all the domestic communications the National Security Agency's copious computers can hold?
Why stop at waterboarding? Why not go all the way and pull out some fingernails, if that would give Americans another tiny increment of security? Wouldn't electric shocks make us safer still? Just order the White House lawyers to draw up yet another thumb-on-the-scale legal opinion explaining how torture isn't really torture, and have at it.
If potential terrorists may be walking among us, why not have police officers stand on street corners all day and subject anyone who looks "suspicious" to questioning and a search? That's what Fidel Castro does in Cuba, and believe me, Cuba is an extremely safe country.
In Vietnam we destroyed villages in order to save them. In this war on terrorism, why not go ahead and destroy our freedoms in order to save them?
The reason we don't do these absurd things, of course, is that we see a line between the acceptable and the unacceptable. That bright line is the law, drawn by Congress and regularly surveyed by the judiciary. It can be shifted, but the president has no right to shift it on his own authority. His constitutional war powers give him wide latitude, but those powers are not unlimited.
If you go along with my experiment and assume that the president has the best of motives, then the problem is that he wants to protect the American people but doesn't trust us.
There can be no freedom without some measure of risk. We guarantee freedom of the press, which means that newspapers sometimes print things the government doesn't want printed. We guarantee that defendants cannot be forced to incriminate themselves, which means that sometimes bad guys go free. We accept these risks as the price of liberty.
The president would probably respond that in an era of loose-knit terrorist groups and suitcase nukes, the risks are exponentially greater than those his predecessors faced. Even if you agree, the answer is not to act unilaterally but to go to Congress and the courts and ask them to redraw that line between state power and individual freedom.
These are not tactical decisions about where a tank division should cross the Rhone. They are fundamental questions that go to the nature of this union, and the president is required to trust the American people to decide them.
End of experiment. Please return your rose-colored safety glasses to the front of the class.