Political Cortex: Brain Food for the Body Politic

Both Bush and Attorney General Gonzalez have been very straightforward, even proud, in describing the decisions they made -- though they are still being deliberately vague about how the searches are being conducted, who is being affected, and how many people have fallen into their nets.  They've also failed to show any results from this activity, but then, we are talking the Bush administration, so results are far down on the list of goals.

On the face of it, what Bush and his AG have said is simple: following the attacks on 9/11, Bush ordered the NSA to expand their efforts to listen in on phone calls coming from suspected terrorists overseas.  They also made the decision that compiling with FISA, despite that legislation's offer of a 72 hour window in advance of obtaining a warrant, presented too great a burden.  Why?  It took them some time to address this part of the issue, but lately they've been very up front about that, as well.

1. In some cases, they were afraid they didn't have enough evidence to satisfy even the notoriously NSA-friendly FISA court.
   
2. On other occasions, they didn't think they could put together their case within three day window.  Apparently, the paperwork was just too much for them.
   
3. Congress didn't look like they would go along with it, so they didn't ask.

So they just did what they wanted anyway.  After all, Gonzalez and his staff have looked at the problem, and they think this is "fully within the president's powers."

In the media, they've managed to muddy the issue into one of "allowing the president to protect the country," and done a good enough job of it that between 40% and 60% of those asked are on their side, depending on the weasel-wording using in the poll.

But the spying is a side issue.  Suppose Bush is right, and that the FISA law really does impinge on presidential authority.  Give him every inch that he's asking for and assume that the authorization of force also puts this law in question.  Even then, his actions represent a massive schism with the past.  In many ways, this is the most enormous rethinking of the nation since the constitution was enacted.  

To  follow Bush down this path, you have to accept that:

1. The executive, acting on its own authority, can determine the constitutionality of law.
   
2. Having determined that a law violates the constitution, the executive can then disregard that law and act as if it does not exist.
   
3. The executive can make these rulings in secret, without being subject to public notification or approval by any other branch.  Citizens can find themselves in violation not of law, but of an unwritten executive edict, and be subject to any level of scrutiny the executive deems necessary.

Forget the details of what Bush has done.  To accept how it was done is an acceptance of unlimited executive authority.  Under this interpretation, the executive is free to carry out his role as he sees fit, completely unbound by any judgement of the other branches.  So long as the executive alone is convinced that he is within his constitutional role, he can not be gainsaid by either congress or the judiciary.

That is what's at stake here, not a protection from illegal searches, but the replacement of the presidency with what can only be considered a unbridled dictatorship.  It's the movement of both congress and the courts to figurehead roles.  It is rule by executive fiat.

The power given the executive under this view is far greater than that expressed by the courts under Marbury v. Madison.  It's a world away from the extremely limited role of the executive envisaged by the original authors of the constitution.

But then, I'm not authorized to determine what is or isn't constitutional. That's Bush's job now.