The Power-Madness of King George

Is Bush turning America into an elective dictatorship?
By Jacob Weisberg in Slate
Posted Wednesday, Jan. 25, 2006, at 3:44 PM ET

It's tempting to dismiss the debate about the National Security Agency spying on Americans as a technical conflict about procedural rights. President Bush believes he has the legal authority to order electronic snooping without asking anyone's permission. Civil libertarians and privacy-fretters think Bush needs a warrant from the special court created to authorize wiretapping in cases of national security. But in practice, the so-called FISA court that issues such warrants functions as a virtual rubber stamp for the executive branch anyhow, so what's the great difference in the end?

Would that so little were at stake. In fact, the Senate hearings on NSA domestic espionage set to begin next month will confront fundamental questions about the balance of power within our system. Even if one assumes that every unknown instance of warrant-less spying by the NSA were justified on security grounds, the arguments issuing from the White House threaten the concept of checks and balances as it has been understood in America for the last 218 years. 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.

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In other news, MoveOn is requesting wide public support in blocking Mister Bush's power grab:

Yesterday, the Senate Judiciary Committee approved the nomination of Samuel Alito. Every Democrat voted against— the first nomination to lose every minority party vote in 90 years.1 The nomination now goes to the full Senate for a final vote, which could happen in less than a week.

Many of the committee Democrats based their historic opposition on what the New York Times called Alito's "extreme views on presidential authority."2 President Bush claims the power to detain American citizens without trial, torture at will, and spy, apparently illegally, on our private conversations. Confirming Alito to the Supreme Court would threaten the last real check against presidential abuse of power.

The next few days are the last chance we have to influence the Senate before the final vote. So, today, we're aiming to send in 10,000 letters to the editor to newspapers around the country, opposing the nomination of Samuel Alito and Bush's plan to put himself above the law.

You can write and submit your letter online right now, at:

http://www.moveon.org/lte/index.html?lte_campaign_id=44&id=6713-137503-TzJp5.69fYWMrXqR_9bOcA&t=2

Filling the nation's editorial pages with citizens' letters connecting Alito and the Bush power grab is one of the most effective ways we can show the Senate that we understand the stakes and are counting on them to stand up. And it's important to act now, because the Democrats and moderate Republicans who oppose Alito have still not decided if they will mount a filibuster to block his nomination—but they must decide soon.

Senator Leahy, the top Democratic senator on the Judiciary Committee, put it well yesterday: "The president is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans...this nomination is part of that plan."3

Here are some key areas where Alito's record makes him a sure bet to back Bush's grab for unchecked power:


The spying scandal: Bush likely breaking the law


As a lawyer in the Reagan White House, Samuel Alito wrote that he personally believed administration officials should have complete immunity if they break the law and spy on American citizens—and worked to protect Nixon's Attorney General who was convicted of exactly that crime.4 President Bush now stands accused of illegally spying on Americans, and the issue is likely to go to the Supreme Court.


The torture scandal: Bush above the law


Alito helped create the radical argument that the president can override Congress and dominate the courts by issuing a "signing statement" to "get in the last word" about what a new law means.5 Last year, Congress passed a ban on torture and Bush, who opposed the law, issued a signing statement claiming that it simply wouldn't apply to him if he didn't want it to.6 This, too, is likely to come before the Supreme Court in near future. 


The detention scandal: Bush inventing the law


After 9/11 Bush claimed the power to indefinitely detain American citizens, without trial, formal charges, or access to a lawyer. In Hamdi v. Rumsfeld, the Supreme Court rejected his argument.7 Sandra Day O'Connor wrote for the majority, "a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens."8 Clarence Thomas dissented, basing his argument on the theory of the "unitary executive"9—the same theory Judge Samuel Alito refers to as "gospel."10


Samuel Alito even railed against Morrison v. Olson, which granted Congress the power to create an independent counsel to investigate presidential scandals whom the president could not simply fire at will. Alito called the decision, "stunning" and praised Justice Scalia's "brilliant but very lonely dissent."11

Bush's ploy to increase his own power with Alito on the Court will not only throw off checks and balances for the rest of this term, but for decades to come. Vice-President Al Gore spoke on this topic last week and summed it up well when he asked:


Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?12


With Samuel Alito on the Supreme Court, the answer may be very little indeed.

Please take a minute to write a letter to the editor asking your senators to reject Bush's grab for unchecked power and Alito's nomination to the Supreme Court.





Sources:

1. "Senate Panel Backs Alito on Party-Line Vote," Los Angeles Times, January 25, 2006 http://www.latimes.com/news/nationworld/nation/la-na-alito25jan25,0,1707725.story?coll=la-home-nation

2. "Judge Alito's Radical Views," New York Times, January 23, 2006
http://www.moveon.org/r?r=1407

3. Transcript of the Senate Judiciary Committee, January 24, 2006
http://www.moveon.org/r?r=1408

4. "Alito said Attourneys General Can't be Sued for Illegal Wiretaps," Bloomberg, December 23, 2006
http://www.moveon.org/r?r=1409

5. "Alito once made case for Presidential power," Washington Post, January 2, 2006
http://www.moveon.org/r?r=1410

6. "Bush could bypass new torture ban," Boston Globe, January 4, 2006
http://www.moveon.org/r?r=1411

7. "Timeline: Sandra Day O'Connor's Key Decisions," Washington Post, July 1, 2005
http://www.moveon.org/r?r=1412

8. "A Supreme Court nominee in wartime," Kansas City Star, July 09, 2005
http://www.moveon.org/r?r=1413

9. "The Limits of Power: Questions for Alito," The Nation, January 6, 2006
http://www.thenation.com/doc/20060123/questions_for_alito

10. Sen. Patrick Leahy'Statement on the Confirmation Vote of Judge Samuel Alito, January 19, 2006
http://www.moveon.org/r?r=1414

11. "The Record and Philosophy of Samuel Alito," People for the American Way, January 2006, p.22
http://media.pfaw.org/stc/alito-final.pdf

12. "Restoring the Rule of Law," Prepared Remarks of Vice-President Al Gore, January 16th, 2006
http://www.libertyspeeches.org/speechtext.html