Warrantless Wiretapping: a nonpartisan frame

Warrantless wiretapping shouldn't be a partisan issue. It's about the rule of law, checks and balances, and all that other wonderful stuff we were supposed to learn in Civics class.

It not only shouldn't be a partisan issue, we can't let it be one. Because there are only three happy endings for this story:

(1) Bush is impeached by a bipartisan coalition in Congress;
(2) he backs down because a bipartisan coalition is forming; or
(3) a bipartisan coalition of voters tosses out the lawmakers who let him get away with it.

So all those "Bush is a fascist" articles on the Internet won't get it done. But I think I've figured out the right pitch. The short version is in the letter that I got published in the January 23 issue of Newsweek.

These days I send off so many letters that I can't be bothered to check on them all. So I found out this one was in print because I got a call from one of the editors of our local free newspaper The Broadcaster. He wanted to know if I'd be interested in writing a longer piece on the same theme for their editorial page.

Now, if you don't count all the people who clip out the 2-for-1 restaurant coupons without looking at a single article, The Broadcaster probably has about ten readers. So I was not being offered fame and stardom. But it was another opportunity to practice my craft, so I jumped on it. My article came out Friday.

'Temporary' Presidential Powers May Become Permanent Problem
It will be unfortunate for America if the controversy over warrantless wiretapping turns into yet another partisan wrangle, with Republicans closing ranks behind the president and Democrats rushing to the attack.

The question at the root of this issue goes beyond personalities, and should concern Republicans and Democrats equally: How much power can we let one person have before we undermine our democracy?

To justify a wiretapping program that appears to violate the Foreign Intelligence Surveillance Act, the administration has put forward a sweeping claim of presidential power: In wartime the president can ignore a law if he feels it interferes with his ability to defeat the enemy.

On the surface this makes a certain amount of sense, because nobody wants Congress micro-managing the battlefield. But the administration's position has two dangerous flaws. First, the power the president claims is unchecked. He and he alone gets to decide which laws he will obey or disobey. Second, the war on terror is not like other wars. Almost by definition, it will never end. Capturing Kabul or Baghdad or Saddam Hussein didn't end it. Capturing Bin Laden wouldn't end it, either. It's hard to imagine what would.

Consequently, any "temporary" powers that we give the president to fight this war are actually permanent changes in our system of government. The issue isn't whether or not you trust President Bush. If his claims are upheld, all future presidents will have the power to ignore laws.

Republicans and Democrats alike should be able to agree on this: We have had unscrupulous presidents in the past, and some day we will have another one. If that president can ignore laws, what won't he (or she) be able to do? Perhaps he will decide that democracy itself interferes with his ability to defeat the enemy.

The Founders gave us a government of laws and not of men. If we want to keep it, we must insist that even the president obey the law.

As we discuss this issue, here's the reality we have to deal with: A large number of people in this country trust President Bush and will come out swinging against anyone who says he isn't a good guy. Like me, you may think these people are living in a fantasy world. But we need their help, and I think we can get at least some of them on our side. The more we get, the less this looks like another convention of Bush-haters -- and so we can get even more of them.

Another large group of people thinks that politics is just a bunch of nasty people calling each other names, and they want no part of it. We need them too.

So there's a line to walk, and I offer my articles above as examples of how to walk it. I did not pretend to be a Republican or pander to them or say anything I didn't believe. But I framed things in such a way that "the issue isn't whether or not you trust President Bush."

I started off by using a number of phrases to draw in the anti-political folks: I denounced "partisan wrangles" and debates about "personalities." And I implied that politics-as-usual has been bad for America.

I also used a red-state framing trick, which I recommend: I didn't talk about "constitutional rights," which sounds all ACLUish. I talked about "the Founders." Right-wing dogma says that the Founders never intended most of the "rights" that "liberal judges" have "read into" the Constitution. Leave that battle for another day. The Founders surely intended that the President obey the law. We can say that boldly, and conservatives will be much more impressed than if we had made some legalistic argument about rights, no matter how accurate or well reasoned.

Finally, we don't have to agree on the identity of "unscrupulous presidents" to agree that there have been some. Maybe you think Bush and Nixon; maybe they think Clinton and LBJ. Doesn't matter, as long as everybody sees the point: Powers like this are a time bomb that will eventually go off.

Someday, I hope that large numbers of well-meaning conservatives will realize that George W. Bush betrayed their cause by increasing both the power and the wastefulness of government. But as long as we're all locked into the pattern of attack and defense, they can't get enough distance from Bush to take a good look at him. Changing your mind is hard; we need to make it as easy for them as we can.

And in the meantime, even people who don't want to bring Bush down might want to make him obey the law.

What Can't Bush Do?

Over at Intel Dump, J. D. Henderson is doing very good analysis of the warrantless wiretapping issue. He's careful to make the distinction between wiretapping the bad guys (which he's for) and warrantless wiretapping (which he's against, partly because nobody's verifying that the targets really are bad guys). And he actually read the administration's 42-page justification of warrantless wiretapping.

Intel Dump draws a fairly intelligent crowd, so the comments and trackbacks are worth looking at too, just to see how well-informed Bush supporters try to defend him. (As opposed to the usual terrorists-will-kill-us-all defense.)

But there's one question that the Bush defenders just won't answer. Responding to the Bush-defending comments Cranky Observer asked:

Would the people who hold this view please give me 3 examples of things the President cannot do under this authority? Specifically, can the President (1) issue Bills of Attainder (2) wiretap, harass, jail, and/or torture (a) his political opponents (e.g. the Kerry Campaign) (b) his critics?
If not, why not?

No takers. He repeated the question further down the thread. No takers. I chimed in with:

I'm still waiting for an answer to Cranky Observer's question.

Nada.

This tells me it's a pretty good question. I think we should throw it into any discussion we can. Under the administration's interpretation of the Constitution, what can't Bush do?

As I see it, the Constitution was written to balance two purposes: First, the Founders wanted to create a government strong enough to pursue the common good effectively. But second, they wanted to restrain that government from turning into a tyranny.

As students of history, they knew that democracy by itself doesn't provide enough protection against tyranny. Most of the time the voters try to elect trustworthy leaders, but sooner or later a popular demagogue comes along and sweeps democracy into the trash. (Hitler and the Weimar Republic provide a more contemporary example.)

That's why they constructed (in John Adams' words) "a government of laws and not of men". The system is supposed to have enough checks and balances to survive the occasional unscrupulous president. (Everyone recognizes the existence of unscrupulous presidents, even if we disagree about which ones they were/are.)

The big problem with Bush's interpretation of the president's "inherent power" as commander-in-chief is that it dismantles these checks and balances. In wartime -- and given the vagueness of the War on Terror it's going to be wartime from now on -- the President can ignore any law that he determines infringes on his war-making ability.

So what can't he do? How does this re-interpreted Constitution fulfill the Founders' intention to protect us against tyranny? And don't tell me that you trust President Bush -- that's a government of men, not of laws.

We need to keep coming back to this question, because I don't think they have an answer. Keep asking it. Again. Again. And again.