The Bully Presidency

JB

I want to second Marty's excellent post on the Administration's apparent reversal on judicial review of the NSA domestic surveillance program and make only a few additional comments.

First, there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.

Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.

When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

If that is so, the best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.

Second, the Administration's credibility is thoroughly compromised by this about-face, that is, if it had any credibility left to compromise. It has long suggested that the NSA program was incompatible with FISA because FISA itself was inadequate to the challenges presented by international terrorism. The NSA program could not be limited to particular targets based on reasonable grounds of individualized suspicion, as FISA requires. That was the chief reason why the Administration-- and defenders like Judge Richard Posner, to name only one-- insisted that FISA was outmoded. Now it turns out, apparently, not so much. By submitting the NSA program to the FISA courts,the Administration seems to be saying that its program is directed at particular targets of suspicion, and is therefore consistent with the FISA framework.

It is possible that the Administration is being deliberately obscure on this point, and that it is, in fact, engaged in broad spectrum data mining of the kind hinted at earlier. But for the moment, we must take it at its word-- at least, that is, until we find, once again, that it has not spoken the truth.

The NSA-- and indeed, the government in general-- is full of patriots who are trying to protect our country from new threats and continuing dangers. But they, and the intelligence community in general, are being very badly served by this Administration. This Administration's primary goal seems to be the accumulation of Presidential power for its own sake; it has used the intelligence services and their programs as a device to promote this end. If the President had been seriously interested in working with Congress-- instead of protecting ever possible assertion of executive power-- the federal government might easily have adjusted FISA to deal new needs for data collection and surveillance, especially in the days following the 9/11 attacks. Instead, the Administration used perceived deficiencies in FISA (some of which, it turns out, were not deficiencies at all) as an excuse to disregard the law, so that it could make claims of unbridled Presidential authority to ignore FISA. Those claims were unreasonable at the outset, and, more to the point, they were wholly unnecessary to achieving sound reform.

Someday, historians will look back on this Administration and regard it as the worst friend the Presidency ever had. It was so eager to amass power that it threw claims of power into disrepute. It stretched the truth and backtracked on its most vigorously asserted claims so often that few believed it any more when it talked about national security. It tried so hard to assert its legal authority that it squandered much of its moral authority. George W. Bush and his cronies did the Executive branch no favors; we can only hope that the next President actually does what Bush said he would do in 2000-- restore honor and dignity to the Presidency.
Posted 2:42 AM by JB [link]