Friday, July 14, 2006

Unchecked Power = Tyranny

A while ago I learned that if you want to see what evil lurks in the heart of any administration, wait for a major news story to dominate Page 1 of the news -- then turn to Page 2. Administrations use these opportunities to say things that they fear the people will not like at a time when the people are distracted by other events.

Hurricane season is a perfect time to practice this sport. The approaching storm gives the Administration time to plan what it needs to report but what it hopes nobody will notice. That information goes out the day the hurricane hits shore. With the news media filled with scenes of destruction, few people notice this story.

With the news these days filled with explosions and other exciting images out of Lebanon, this is a perfect time for the Administration to slip items into the news that might generate some expressions of concern, if people had not been so conveniently distracted by other events.

One story recently reported is that Senator Specter, the head of the Senate Judiciary Committee, and the Bush Administration announced a deal regarding oversight of NSA's warrantless wiretaps. Justice Committee chairman Arlen Specter announced the results of "negotiations" with the administration that has been going on since mid June. These negotiations resulted in Specter amending his own proposed legislation dealing with the warrantless wiretap issue.

Some of the major terms of this compromise are that Bush agrees to voluntarily submit the NSA wiretap program to the FISA court for review, all lawsuits against the program will be combined into one lawsuit that will be presented to the FISA court, and no future program needs to be submitted to the FISA court.

For all practical purposes, it is possible to imagine the results of these negotiations in terms of a parent negotiating with a child about eating his vegetables. The parent in this case, being played by Senator Specter, has offered the child (the Bush Administration) a deal. "I promise that from now on I will agree that you do not have to eat your vegetables if you do not want to. You don't even need to eat your vegetables tonight if you don't want to. However, in exchange, you promise to eat your vegetables tonight even though you don't have to do it."

This is certainly a deal that any vegetable-hating child would love. Its legal analogue is a deal that any Constitution-hating President would love, for the same reasons.

One of the key components of this political bargain is that the Senate bill states that neither this nor any future President needs to submit any program to the Courts for review if they do not want to. According to Media Matters, "Specter's revisions would make it optional for the White House to submit such intelligence programs to FISA review and to reject FISA as the exclusive means by which domestic surveillance for foreign-intelligence purposes could be legally approved."

This, it makes eating one's vegetables voluntary. It gives the President the sole authority to determine if he is obeying the Constitution or not, with the power to seek a second opinion only if he wants to do so.

This causes me to ask, "What about the other secret programs that the Bush Administration is running -- the ones we have not learned about yet?" This wording suggests that Specter is willing to give a free pass to any intelligence-gathering program we do not yet know about, for the sake of a non-binding promise to submit one we do know about to review.

I want to remind the reader that the purpose of judicial review is not to prevent the President from seeking information on the enemies of the United States and protecting its people. It is there to make sure that the President of the United States is using these powers to seek information on the true enemies of the United States and protecting its people – as opposed to collecting information on personal and political enemies for the purpose of hoarding political power.

History tells us that political leaders too often confuse their political well-being with that of the state, adopting the attitude, "I am the state!" Far too often they simply cannot tell the difference between political criticism and sedition, or between political opposition and treason.

So, who is going to make sure that the procedures that the nations' spies are following are actually targeting terrorists and other threats to the country? Who is to prevent somebody like Karl Rove and Vice President Cheney from slipping the names of people like Joe Wilson and other critics into the list of "suspected terrorists" just to see what comes out?

This is what we need judicial review to do for us -- to make sure that things like this do not happen.

The Secret Constitution

In addition, the Specter compromise says that FISA will determine the constitutionality of the program and could announce its decision in a secret opinion.

What does this give us?

It gives us a secret Constitution.

It means that teachers in the nation's law schools, when it comes to teaching constitutional law, will have to throw up their hands and say, "I can't teach you any of this. Constitutional interpretations are secret, so we cannot discuss them in the classroom."

"No, son. You are not permitted to know what the courts think the Constitution actually says. The specific iterpretation of the Constitution is a state secret. Revealing the meaning of the words in the Constitution is treason.

The effect of this procedure will be to give us secret laws. It means that the people will have no ability to know what their rights are, because their rights are determined in secret court and kept in sealed documents. No citizen will be given the right to read that, "The court has a right to do X," and figure that right into his plans, because the document finding such a right in the Constitution is sealed.

What happens if the FISA court should issue an opinion that is in contrast to the Supreme Court? One option is that the Supreme Court will have the right to review these decisions and to overturn them as it overturns other statutes. If it has the power to do this, then why not recognize that the Supreme Court has the authority to review these proceedings to start with, and cut out the middle man. If the Supreme Court has no power to review these decisions, then we have two separate Supreme Courts with what will eventually become two separate Constitutions.

The Simple Formula

The basic formula upon which this and similar proposals can be judged is this: "Unchecked power = Tyranny." There may have been benevolent dictators who have used their total and unchecked power in an attempt to do good. However, they inevitably fall victim to the idea that anything and everything they think is a good idea is ‘good’ and anybody who disagrees with them or gets in their way is ‘evil.’

Specter is conspiring with the President of the United States to create an executive branch of unchecked power. It has no judicial review. It has no legislative review. Inevitably we will get another Andrew Jackson or Richard Nixon who thinks that the powers of the President Office are for empowering themselves, enriching their friends, executing personal vendettas, and for sweeping aside any opposition to plans that their ego tells them cannot fail. Eventually, another would-be tyrant will sit in the Executive Office. We need to be asking ourselves questions about the powers that he will find waiting for him when he does so.

Sooner or later, in this generation or the next, there will be people who will have reason to condemn us in the harshest terms for destroying the system of checks and balances that previous generations were wise enough to establish, and which we threw away.


Anonymous said...

'Eventually'? Ha! I hope that's a joke. The idea that we would have to *wait* for a would-be tyrant is silly.

Other than that you make good points.

I was somewhat disturbed to find that Article III actually does allow this. The "judicial Power shall extend to all Cases, in Law or Equity, arising under this Constitution", which means that *some* court must have jurisdiction over them, but "the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.", which means that Congress actually can allow an inferior court to have unreviewable jurisdiction over a particular area (aside from "cases involving Ambassadors, other public Ministers and Consuls", which could be argued to include the President and cabinet secretaries).

That's a serious mistake - they should have given the Supreme Court final appellate jurisdiction over all constitutional issues. Granting appellate jurisdiction doesn't force the Court to exercise it if it would be inadvisable, but preserves its authority to do so in the event of its being necessary.

I guess the Founders didn't envision the creation of puppet courts like FISC - or thought Congress wouldn't allow them. The fact that something is called a court does not make it genuinely independent of the executive and legislative branches.

Alonzo Fyfe said...


Let us just say that I am giving those who might think favorably of the current administration whatever smidgen of doubt that might still exist.

Other than that, this is not yet true tyranny. I have not yet been arrested.

I do not doubt that our government now is under the control of a Christian Taliban. They certainly do chaffe under the cultural restrictions that "too many people" in their eyes still respect in this country. Without them, they would establish a theocratic tyranny that would shame and humble the Muslim theocracies (ultimately to the same social and economic effect).

But, they have not done so yet.

(Still, there is an urgent need to use what freedoms we have left to push back.)