Scott Rosenberg's Wordyard

In order to understand the nature of the strange constitutional crisis President Bush has dragged the country into through his bizarre extralegal domestic surveillance program, you have to dig into the vaults of your brain’s American history storehouse and drag out the word “nullification.” The doctrine of nullification, a legal concept that enjoyed a brief moment in the sun in the antebellum South, held that individual states had the power to disregard, or “nullify,” federal laws that they didn’t like. It led to various crises during the presidency of Andrew Jackson, and the conflicts between Washington and the Southern states did not get fully resolved until the Civil War settled them once and for all, establishing the force of the federal writ through the force of the federal arms.

Today, the Bush administration has been steered into dangerous waters by veterans of the Nixon/Ford era, like Dick Cheney and Donald Rumsfeld, who have pursued a decades-long quest to reassert the glories of the imperial presidency they cherished as young men and then saw shamed and dismantled in the aftermath of Watergate. Most Americans at the time concluded from that scandal of executive privilege that absolute power corrupts absolutely; Cheney and Rumsfeld believed instead that Watergate had crippled and emasculated the presidency. 9/11 gave them an opportunity to bring back the good old days of enemies’ lists, intelligence-doctoring and (now we know) domestic surveillance — and even to extend the tradition of the imperial presidency into hitherto unexplored regions of White House-sanctioned torture, indefinite imprisonment without trial, and war without end.

And so we find ourselves entering a period of conflict with peculiar overtones of that “nullification” period. Only now it’s not the states attempting to usurp the federal authority; in the Bush version of nullification, it’s the Executive Branch that has begun to claim for itself the arbitrary and absolute right to disregard the explicit will of the legislature — not through the exercise of constitutional veto but through secrecy, legal chicanery and sheer chutzpah.

In claiming that the president’s basic role as wartime leader and commander-in-chief gives him the broad authority to disregard any law that he (and he alone) decides is impeding his goal of protecting the nation, the Bush administration’s lawyers are granting the occupant of the Oval Office a unique authority to step outside of the constitutional process by which laws are passed by Congress and signed (or vetoed) by presidents and reviewed by Supreme Court justices. Forget checks and balances, we’re being told; in the age of terrorism, they no longer obtain.

Let’s understand the chronology here: throughout the 1950s and ’60s and well into Watergate, federal agencies spied on a vast population of American citizens — civil rights leaders, anti-war protesters, journalists who ran afoul of J. Edgar Hoover or the president, people who looked the wrong way at someone in position of authority. A handful of the thousands under surveillance might even have been real threats to the Republic. But there’s no evidence I know of that any actual threat was ever foiled by the mass wiretaps.

In reaction to revelations of these programs, and out of disgust at the wholesale violations of basic constitutional rights, Congress passed a whole slew of laws intending to make sure that such abuses never happened again. One important part of this legislation was the
Foreign Intelligence Surveillance Act of 1978. It is the main law in question in the current controversy, the one that the Bush spying program violated. FISA laid the groundwork for an orderly review process by which U.S. intelligence services could obtain permission to conduct wiretaps and otherwise spy on people it had reason to suspect were engaged in terrorism. FISA was amended through the years and extended by the USA Patriot Act in the days after 9/11.

The Bush administration says it has needed to ignore FISA’s requirements of judicial oversight because, in the war on terror, it needs to act fast, and the judicial bureaucracy is too slow. Only today FISA already allows U.S. authorities to go ahead and spy on anyone they want to and then retroactively go back and tell the oversight court. So that’s just a smokescreen; something else is going on here. Experts are speculating now that the Bush administration chose its constitutional end-run in order to open the way for some new technological approach to domestic spying — some sort of data-mining approach that involves casting a wide net through vast quantities of domestic communication in search of terrorist missives.

That’s entirely credible. And I’m even willing to accept the Bush team’s argument that such techniques might be a good way of foiling the next terrorist plot. But none of this excuses or justifies what appears to be a three-year-old spying program of huge proportions and gross illegality. If the president wanted the authority for such a program, all he had to do was ask for it — and in the post-9/11 atmosphere, when all sorts of dubious civil liberties compromises were being rolled into the Patriot Act, he’d surely have gotten it. Alternately, he could have turned to the FISA court itself, which has a long record of approving thousands of government surveillance requests and turning down a mere handful.

But our executives were unwilling to request authority from the Republican-controlled congress or to obtain it from the judiciary. Why? Because they don’t believe they have to ask. Doing it without asking is the very point of the exercise. Aggrandizing presidential authority is not a means toward the end of better protecting the nation; the threat to the nation is simply a convenient occasion to establish the principle that being president means never having to ask for authority.

If Bush and Cheney had been willing to pursue their surveillance plan within the constitutional system they’re sworn to uphold, they wouldn’t be facing the uproar and consternation that they confront today. They wouldn’t be in the position of distracting the capital and the nation from the real crises and threats we face by provoking an unnecessary and fruitless showdown between the branches of government. But as with Iraq, so with the surveillance scandal: When faced with a choice between effective pragmatism and grandstanding brinkmanship, the Bush team has always chosen the riskier path.

POSTSCRIPT: Brad DeLong asks why Bush and Cheney wouldn’t worry that their Doctrine of Presidential Infallibility, if allowed to stand, wouldn’t hand the same absolute power to some “future left-wing president.” “There are two possible answers: (a) They are really stupid. (b) They are really evil–they do not intend for there to be a left-wing president ever again. I vote for (a) myself. I wish I could suppress the still small voices in my head that are whispering (b).
I hate the way this administration has turned me into a nutbar conspiracy theorist.”

POST-POSTSCRIPT: David Cole dips into another era of American history, President Truman’s Korean-War era effort to nationalize steel plants, and finds clear Supreme Court precedent showing just how illegal the Bush program of warrantless domestic wiretapping really is. Expect to be reading more in coming weeks about Youngstown Sheet & Tube Co. v. Sawyer.