The president will likely address his warrantless-search program in the State of the Union tonight, if for no other reason than to get his spin on the controversy out there in front of a very large television audience. Bush will want, of course, to try and establish the terms of the debate, which as Boston Globe columnist Peter Canellos noted today, seems to be the only part of the debate that matters politically.
While his recent predecessors — including his father — sold their programs in the usual pragmatic terms of benefits balanced against costs, Bush puts the focus on his underlying values. To hear him tell it at his press conference last week, he didn’t really weigh the costs and benefits of domestic spying at all.
”Right after Sept. 11 I said to people [in the administration], ‘What can we do? Can we do more . . . to protect the American people?’ ” Bush said. The spying program was devised by the NSA, reviewed by Bush’s lawyers, and put into action. Bush approved it, he said, because he wanted to do everything he could to fight terrorism. […]
By framing the issue in terms of values — by answering ”why” instead of ”what,” ”when,” or ”how”– Bush chokes off any serious discussion of policy choices and tradeoffs. He leaves his critics arguing on an entirely different plane, which is both infuriating to them and confusing to voters.
It’s a provocative point, but I think it’s also largely an accurate observation. The White House’s defense for the program is, at its core, about motivation.
The initial debate over domestic spying dealt with whether the program is illegal. In some circles, that shifted into a debate over whether the program is effective. But Canellos’ argument is that the White House wants to end the discussion by essentially saying, “Bush means well.” Of course, it has to end there for Bush, because anything further raises uncomfortable questions.
There’s no evidence, at least as of now, that Bush is using domestic spying for nefarious purposes (i.e., spying on political enemies, ala Nixon). Because Bush can say he’s engaged in warrantless searches for a good reason, he can maintain support from those who are otherwise uncomfortable with this kind of executive branch abuse.
That’s why it’s necessary to talk about limits on presidential power. Even if Bush critics are willing to concede that the president probably had noble intentions in launching this program, it’s not enough to mean well. If the president can ignore the law and defend his actions by pointing to his motivations, as Jacob Weisberg noted, it’s no longer a constitutional system.
Simply put, Bush and his lawyers contend that the president’s national security powers are unlimited. And since the war on terror is currently scheduled to run indefinitely, the executive supremacy they’re asserting won’t be a temporary condition.
This extremity of Bush’s position emerges most clearly in a 42-page document issued by the Department of Justice last week. As Andrew Cohen, a CBS legal analyst, wrote in an online commentary, “The first time you read the ‘White Paper,’ you feel like it is describing a foreign country guided by an unfamiliar constitution.” To develop this observation a bit further, the nation implied by the document would be an elective dictatorship, governed not by three counterpoised branches of government but by a secretive, possibly benign, awesomely powerful king.
As far as the White House is concerned, the “possibly benign” part of this should essentially end the conversation. As Canellos noted, it’s about “values,” and Bush’s values in this controversy are focusing on security.
But without limits, benevolent leaders can go awfully far in the name of protecting the citizenry.
The final problem with Gonzales’ theories of unfettered executive authority is that they, as the lawyers say, prove too much. The Article II plus AUMF justification for warrant-less spying is essentially the same one the administration has advanced to excuse torture; ignore the Geneva Conventions; and indefinitely hold even U.S. citizens without a hearing, charges, or trial. Torture and detention without due process are bad enough. But why does this all-purpose rationale not also extend to press censorship or arresting political opponents, were the president to deem such measures vital to the nation’s security?
It’s exactly why it’s troublesome if Bush answers ”why” instead of ”what,” ”when,” or ”how”– because he can use “why” to justify almost anything.