Posted on 12/28/2005 9:31:48 AM PST by Valin
As I write this a few days before Christmas, reports about the Bush Administration’s electronic surveillance of communications between suspected terrorists and people within our borders has substantially raised the level of political rhetoric. Talk about impeaching President Bush has made its way from the fever swamps of the left blogosphere to the somewhat more respectable precincts of Capitol Hill, where Senator Barbara Boxer has dipped her toe in the murky water, Congressman John Lewis (D-GA) has dived in, and Senator John Kerry has announced that he voted for swimming before he voted against it. Congressman John Conyers (D-MI) has covered all the bases, introducing a resolution calling for the creation of a committee to investigate whether the President has committed impeachable offenses, as well as one calling for the President’s censure, on the grounds that he hasn’t responded to Congressional demands for information regarding his alleged manipulation of pre-war intelligence. These politicians have been joined by a few serious commentators, including Newsweek’s Jonathan Alter, who has said that President Bush is acting “like a dictator” and called him a “lawbreaker,” and the University of Chicago’s Geoffrey Stone, who asserts that the President’s actions are “a blatant and arrogant violation of American law.”
Whatever happened to “peace on earth, goodwill toward men”?
This particular skirmish between the Bush Administration and its domestic critics pits those who assert the “inherent power” of the Presidency against those who call for respecting every jot and tittle of the Foreign Intelligence Surveillance Act. In the final analysis, it will not, I think, be settled in a court of law, but rather in the court of public opinion.
What the President and his supporters are ultimately asserting is executive prerogative, given its classic definition by the seventeenth-century English political philosopher John Locke in his Second Treatise of Government:
[The] power to act according to discretion, for the public good, without the prescription of law, and sometimes even against it, is that which is called prerogative. (My emphasis.)
For Locke, executive prerogative was necessary to respond to three failings inherent in the nature of law itself. First, the general categories in any law are never fully adequate to the particularities of the situations in which we find ourselves. There are always exceptions to the general rule. When those exceptions present themselves, if justice is to prevail, if the public good is to be secured, someone must act against the law. The executive power to grant reprieves and pardons (as many recently demanded for Tookie Williams, whatever the particular merits of his situation) is one example of this kind of prerogative.
Second, since human beings lack perfect foresight, law will never provide for all the situations that might arise, however amenable they might eventually be to general legislation. If the executive can’t act in the absence of legal authority, then he can’t adequately handle the novel situation he confronts. President Bush’s assertions that 9/11 changed everything suggest thinking along these lines.
Finally, Locke notes, in language echoed by Alexander Hamilton in The Federalist Papers, that legal mechanisms are sometimes too slow “for the dispatch requisite to execution.” This, too, is reminiscent of arguments made by the President’s defenders regarding the functioning of the Foreign Intelligence Surveillance Court.
Hamilton also insists upon the importance of secrecy as an essential element in executive power. The more people involved in making and carrying out a decision, the less likely it can be kept secret. The less likely it can be kept secret—in certain crucial instances—the less likely it will be successful. President Bush has already made the case that untimely leaks have hindered our ability to track and apprehend al Qaeda operatives.
President Bush is not the first to assert this prerogative, and he will not be the last. Some of his defenders argue that, with respect to the electronic surveillance at issue here, the courts have never questioned Presidential authority and have, indeed, expressly affirmed it. That may be so, but the courts have, from time to time, repudiated other assertions of executive prerogative. In Ex parte Milligan, for example, the Supreme Court overturned a military tribunal’s verdict against a notorious Southern sympathizer, arguing that the fact that civilian courts were functioning (albeit perhaps inefficiently and ineffectively from the government’s point of view) precluded the imposition of martial law. In Youngstown Sheet and Tube Co. v. Sawyer, the Court overturned President Truman’s effort, in the name of national security, to impose a settlement in a labor dispute, arguing that Congress had already provided a mechanism for settling the dispute, thereby precluding any “extralegal” Presidential action.
That many courts are deferential to assertions of executive authority in wartime does not mean that they all will be, nor does it mean that when they defer, the President is right, and when they resist, the President is wrong. One of the facts about our system of separation of powers that is all too frequently overlooked is that, if the branches are in fact separated and equal, checking and balancing one another, there is no reason why the judiciary should simply and always have the final word when it disputes the authority of a co-equal branch of government. To affirm that proposition would be to acquiesce in judicial tyranny.
Locke, who wrote before the American innovation regarding judicial review, offered another way of resolving disputes about the use and abuse of executive prerogative. If the issue is, as he says, the public good, the final arbiter can be none other than the public. He expected people to acquiesce in assertions of executive prerogative “whilst it is in any tolerable degree employed for the use it was meant.” That is, he expected people to be relatively forgiving of assertions of prerogative, responding only to the proverbial “long train of abuses” manifestly tending toward tyranny.
For all practical purposes, then, when we examine assertions of executive prerogative, we’re called upon to render a political judgment, making a political argument about the tendency of executive action. We have a number of avenues we can pursue here. We can conduct the kind of debate now being conducted in Congress, our newspapers, over the airwaves, and in the blogosphere. Congress can hold hearings, exposing what it regards as abuses or misuses of executive power. It can attempt legislatively to impose new limits and use its appropriations power to tie the executive’s hands. At the limit, the House can vote articles of impeachment and the Senate can try them.
And, lest we forget, “we the people” have the opportunity, every two years, to vote.
Let me repeat: All of these processes are political, not legal. Even a Senate trial of “high crimes and misdemeanors” is a political trial. I don’t mean to use the word in a pejorative sense. To render a political judgment, to conduct a political debate, is to focus on the public or common good. We attempt to answer the question whether we are safer, whether our rights are more or less secure, with or without electronic surveillance of the sort that the Bush Administration has apparently undertaken. We ask whether the provocations the President has asserted, and the safeguards he has outlined, are sufficient. We ask ourselves whether he and his colleagues can be trusted with this fateful authority.
We offer answers, and we attempt to persuade our fellow citizens. In so doing, we put our own reasons and our own characters on display, as well as the reasons and the characters we’re criticizing, because we can’t hide behind the impersonal law. So I invite Senators Boxer and Kerry, Representatives Lewis and Conyers, and anyone else to make their best case about what the real threats to our safety and security are, and about whether President Bush and his colleagues can be trusted with the authority they have asserted.
I know who’ll win the debate. I know who has earned the trust of the American people. Bring it on!
Joseph Knippenberg is a professor of politics and associate provost for student achievement at Oglethorpe University in Atlanta, Georgia. He is a weekly columnist for The American Enterprise Online and a contributing blogger at No Left Turns.
An impeachment will fail big. It's a big show where they try to tarnish you by "talking" about it.
It's a farce.
Red6
This is precisely why the Dems won't even try to put forward articles of impeachment.
They should do the same thing they did to the talk of withdrawing from Iraq... float a bill and force the Democrats to vote on it.
Won't be any impeachment in 2006. But wait until 2007. These elections are important for that factor alone. A shift in the House and momentum may build.
Some 'rat moonbat will take the bait and file Articles of Impeachment.
And you'd just love to see the President impeached, wouldn't you?
Thanks for putting wrong words in my mouth, as I notice you do frequently. To answer your silly post, absolutely not. President Bush is destroying conservatism enough as it is without adding that. It would be disastrous and the last thing I want to see.
Even if the Dems get a majority in the house, there are some DINO's who wont vote for it.
I have not checked, but I bet the boys & girls at DU are real excited about it.
That's a stretch.
If you (or anyone else for that matter) think the House is going Democrat next year, I got a bridge I can let you have real cheap.
Of course these are the same kooks who have hated President Bush since day one and think there is some great Bush-Fox-Clinton conspiracy afloat to destroy the U.S.
Another great find, Valin. And another spokesman to keep up with as well.
Bring it on, indeed. Come on out and get gored.
Guess the Democrat's still haven't read the polls that show 57% of DEMOCRATS agree with President Bush on NSA Wiretaps.
Bush-Fox-Clinton conspiracy afloat to destroy the U.S.
There's only one thing to be done about this conspiracy....HIDE UNDER THE BED.
As we are all doomed...DOOMED I say.
If the Democrats take the House -- and remember that they've aggressively recruited Iraq veterans to run in 2006 -- there are no questions whatsoever about it . . . they will hold impeachment hearings, dominate TV news coverage and probably win the vote.
That is what we have to look forward to in 2006 if we don't win.
Think about that when you read the screams from the immigration focused freepers who insist that the RNC must have a funding boycott.
Think about how much you'll enjoy watching those hearings and them winning such a vote. Don't think "DINOs" will save you. If there is ANYTHING that would galvanize the DNC leadership to whip every member into line, it would be this.
These people want to impeach the only President who has chosen to fight terrorism. Bring it on!!
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