We often hear is said that there is a pre and post-9/11 world. Sometimes it is suggested that certain people exist in only the pre-9/11 world. Setting aside that this is an absurd construction that violates the time/space continuum, I would admit that there is some meaning in the distinction. But if we are going to add new worlds to the one we know to exist, I would like to add a near-post 9/11 world. In the immediate aftermath of 9/11 we were uncertain about whether sleeper cells had been put in place to carry out follow-on attacks.
In those circumstances, Bush was within his rights, and he had a responsibility, to take extraordinary steps (perhaps technically unconstitutional steps) to safeguard the nation. In particular, he was justified to call together his national security team and ask them what steps we could take to try to identify, track-down, and neutralize any internal sleeper cells.
It was in a meeting a few days after 9/11 that Michael Hayden agreed to initiate a program that would violate FISA and spy on domestic phone calls. There has been some confusion about whether Hayden began this program prior to getting authorization for it, and that could become an issue in his confirmation hearings. I would argue, however, that in the immediate post-9/11 environment such a unilateral decision by Hayden could be forgiven and was justifiable.
Constitutional Crisis
However, just as with the Patriot Act, what was appropriate in the fall of 2001…namely, an overabundance of caution…is not appropriate nearly five years later. This is what makes the Bush administration’s politicization of the Patriot Act and their reaction to the unfolding disclosures about their warrantless wiretapping and sweeping use of data mining so dispiriting.
When the disclosures came out, the administration could have made an argument that would have satisfied all but the most ardent opponents of the Bush presidency. They could have made the argument that they had acted in an overabundance of caution, that they recognized that orders had been illegal in some circumstances, that five years on it was now appropriate to cease certain operations, and that others should be put on a legal footing through negotiations with the Intelligence Committees. This would have been a recognition that the near-post-9/11 world is not the same as the post-9/11 world. We have moved on to the next stage.
Instead of doing this, the administration decided to create a constitutional crisis. It can be characterized as an argument that the near-post-9/11 world will never end until the threat of terrorism is wiped off the face of the planet. This would be an unsatisfying argument even if terrorism were decreasing…which is it not. To find a legal footing for conducting operations that were only appropriate in a near-post-9/11 environment, they have embraced the unitary executive theory. In essence, the administration has said that executive can ignore laws passed by Congress if those laws interfere with the President’s duties as commander-in-chief. Thus, the President can ignore ratified treaties, prohibitions on torture, the FISA law, and who knows what else.
In a time of real national emergency it might be appropriate to cede these powers to the Executive for a limited time. However, no matter the seriousness of the threat we face from terrorists, we cannot exist in a state of permanent national emergency. The War on Terrorism is more appropriately a campaign to identify known terrorists and terror cells and neutralize them, while working on changing the conditions that breed terrorism. Leaving aside the poor job the administration is doing on the latter part of this, it is not a job that can ever be completed. We will always have to worry about terrorists. Therefore, the President’s assertions of special powers represents a permanent change in the traditional separation of powers. Under their theory, and taking into account practical realities, there will never come a day when the War on Terror is over and the President will again be subject to the binding laws of Congress.
This puts the whole government in an awkward and untenable position. There are institutional problems and there are political problems. Institutionally, it throws every sector of government into confusion. Intelligence agencies are asked to commit acts that are clearly illegal under traditional interpretations of the law. The Justice Department has one branch writing guidelines that justify these illegal acts, while another branch is charged with prosecuting them. Congress in unsure what the limits of their legislation and powers are. The Courts are given the unwelcome task of sorting it all out.
Meanwhile, Congressional Republicans, as the party in power, are asked to cede their powers and are given marching orders to politicize any opposition to the loss of Congressional powers as weakness on national security. This is surely a fool’s errand that would end badly even if their leader were not polling at 29%.
All of this chaos could have been avoided if the administration had admitted what they had done, justified it as an excess of caution in a near-post-9/11 world, and agreed to cease certain activities and put the rest on a legal footing.
By throwing the entire government into confusion and by pursuing a path of maximum partisanship, the administration is imperiling our national security and ripping at the fabric of our civil society.
When you add to this:
The number one and three men at the CIA have just resigned. The number two man at the NIA is embroiled in this controversy and focused on his confirmation for DCI, the NSA is leaking like a sieve, the Secretary of Defense is opposed by a huge portion of his military, our National Security Adviser is under investigation in the Plame affair, the Vice-President’s office is under investigation, the President’s chief advisor is about to be indicted, and the House Intelligence and Armed Services committees are suspected of massive corruption…one can’t help but fear for the state of our national security.
Add to all of this the weakened condition of our Armed Forces and the rumblings about expanding the conflict in the Middle East into Iran…and we truly in dangerous territory.
It is my hope that the saner voices in Washington can step back, take a breath and break from the back and forth of political sniping, and realize that we must all call for the Bush administration to stand down from the efforts to continue to violate the law, exert extraordinary powers, confirm a divisive DCI, and try to score political points off it in the process.
This cannot continue. The sane people must step up and put an end to this constitutional crisis. It need not come to an impeachment. But the threat of impeachment from Republicans with the backing of the responsible press would go a long way towards restoring sanity to our country and letting our national security apparatus go back to focusing on national security.
