The Unitary Executive Congress

On Wednesday July 9, the Senate voted to pass the FISA Amendments Act. This was a new law the Democratic majority in Congress had opposed in principle for the last five months in defiance of President Bush. They had suffered no political harm for taking the stand. Indeed, they defied him with as much success here as in opposing the privatization of social security. The collapse of the Democratic leadership on FISA was thus a sheer political calculation; yet the panic of the reversal ran ahead of any visible threat. It betrayed an embarrassment at the leadership's complicity with the president -- but in a manner that only increases the embarrassment and only tightens the complicity.

The collapse also reflected a weakness of collective character. The fourth amendment sets up a law no executive may stand above: a law that forbids the trawling by the government for information against citizens without probable cause. It says every warrant must be supported by an oath or affirmation which particularly describes the place to be searched, and the things to be seized. Under pressure (but a very general not a particular pressure), the Democrats showed that, for them, the fourth amendment is dispensable in a way in which social security is not dispensable.

The new law has these important effects: (1) It reaffirms the president's right to order individual taps as well as massive data mining, on foreign targets and on American citizens with foreign contacts whom the president finds suspicious. (2) It extends from three days to a week the period during which he can spy on a person or many people, abroad or in this country, without telling anyone. (3) It contracts the authority of the FISA court from approval of individual warrants to approval of the general procedures used in surveillance. (4) It replaces the FISA court, as the single approver of individual warrants, with the inspectors general at the government agencies and departments; most of all (it would seem) the inspector general of the NSA. (5) It narrows the investigation around the telecom immunity lawsuits from a sifting for possible violations of the law by the president in seeking warrantless wiretaps -- and by the telecoms in supplying those wiretaps -- to the bare question whether the president had attached a note from a legal authority in requesting help with his searches and seizures. Not "Was it illegal and did the president and telecoms know it was illegal?", but rather, "Did he get a lawyer to sign for it?" has become the question for a court to decide. (6) Not the FISA court but a district court will answer that question for all the lawsuits covering the years 2001-2005.

The public controversy has centered on the campaign by libertarian groups against immunity for the telecoms. But the catastrophe of this legislation resides in title I: the content of items (3) and (4). The power of approval, inspection, and denial of warrants has, under the terms of the new law, swung over almost entirely from the FISA court to the various inspectors general.

There are good and less good inspectors general. But taken as a body, and compared to a special intelligence court, they make a precarious, accidental, and arbitrary means of oversight, a nugatory check (devised for its impotence) on operations as massive as those we have seen this president commandeer. Last year the inspector general at the department of justice, Glenn Fine, brought to light some failures of FBI compliance with the law on National Security Letters: an appropriate service to the public good by an inspector general which nobody else could have performed. It may also be remembered that Stuart Bowen, the IG for Iraqi Reconstruction, has spoken of some abuses of the easily manipulated system of contracting in Iraq; but here we come to another pitfall. For Bowen, when appointed, was an old personal associate of George W. Bush, an adviser in Texas who became counsel to the Bush transition in 2000. Would an Iraq IG less closely tied to the president have made different and larger discoveries about American reconstruction? Again, an IG may come under illicit pressure within his own department, as John Helgerson at the CIA recently found. In October 2007, in an astonishing arrogation of power, Michael Hayden, the director of the CIA, launched an investigation of Helgerson. Would the effect of such discipline not be to intimidate all but the boldest inspectors? Consider, finally, the current inspector general at the Pentagon, Gordon Heddell. He splits his time there with the other job he holds as inspector general of the department of labor. What double after-hours will Heddell be working at the Pentagon, to ferret out the truth in recent charges of fraudulent contracts and corruption? Or was he chosen and then permitted the double position with precisely the hope that he would not work too hard at the Pentagon?

The slide in oversight from a court with many judges to the determinations of inspectors generals is no small part of the new FISA law. It is the central structure of an enfeebled system of checks. This was not what the American founders had in mind when they passed the fourth amendment after having framed article I of the Constitution.

It cannot be repeated too often that there was no deficiency in the existing FISA procedure. Over 30 years, the FISA court had authorized more than 19,000 wiretaps, and had refused only five. The use of FISA warrants was as a formal check more than an active restraint; but it was a check the president risked many honorable careers to overthrow. Why? What drove the president's men with such persistent and hidden resolve? Only one motive that can possibly explain the actions. They were interested in a kind and a scope of mining and trawling which they knew would be greeted with alarm by the FISA court. They thought it would be certainly disapproved and perhaps brought to light. Why were they so sure they would not pass the test 19,000 earlier warrants had passed? Because particular descriptions and probable cause were missing, in even the broadest understanding of those terms. That is what the lawsuits would have discovered.

All this Barack Obama knew well. He vowed many times that he would filibuster against the FISA Amendments Act. He had FISA in mind when he said in the most stirring words of his campaign: "I have taught the Constitution, I understand the Constitution, and I will obey the Constitution when I am President of the United States." But on Wednesday, given the opportunity to filibuster, he voted to close off filibuster. Given the chance to compel another president to obey the Constitution, he joined his party and gave the president a retroactive excuse. All together, they asked George W. Bush please not to break the law again.

Here are those who voted to resist the enlargement of powers and the institution of legal immunity for the president:

Akaka (D-HI)

Biden (D-DE)

Bingaman (D-NM)

Boxer (D-CA)

Brown (D-OH)

Byrd (D-WV)

Cantwell (D-WA)

Cardin (D-MD)

Clinton (D-NY)

Dodd (D-CT)

Dorgan (D-ND)

Durbin (D-IL)

Feingold (D-WI)

Harkin (D-IA)

Kerry (D-MA)

Klobuchar (D-MN)

Lautenberg (D-NJ)

Leahy (D-VT)

Levin (D-MI)

Menendez (D-NJ)

Murray (D-WA)

Reed (D-RI)

Reid (D-NV)

Sanders (I-VT)

Schumer (D-NY)

Stabenow (D-MI)

Tester (D-MT)

Wyden (D-OR)

Of course, Obama was making a political calculation. And he did not pretend to be happy with his vanishing from that list. Still, on two important points he contributed unnecessarily to misinform the public regarding the nature of the new law. He pretended it was a compromise. In fact, as Senator Feingold plainly said and as Christopher Bond gloated, it was a capitulation. Obama also shaded the truth without making a false statement when he assigned as a reason for his vote that the law was needed to renew warrants that would expire in August. The false inference was that the U.S. would be left in some degree defenseless if the law did not pass in its present form. But other ways could have been found of renewing the warrants; a president who did not use them would be to blame for the consequences.

The value of defending a principle in politics is that, even if you lose the contest, a truth has been told. Some people have heard and been moved, and in that way something has been gained. The swindle, on the other hand, of purely political calculation is that all its value depends on winning. Lose, and you have lost more than a contest; you have weakened your attachment to the best reasons you ever claimed for fighting.

Calculation also may miscalculate. Obama's switch to the majority against the fourth amendment buys him credit for prudence and reliable moderation among the people who reward such virtues in the mainstream media (and in the corporations that back them). But this bill was in no danger of not passing; enough Democrats had safely gone over without Obama's help. But it also seems possible that there were voters in places like Ohio and Michigan who were slow to trust him and were waiting to see. Some of those voters surely felt, as many Americans everywhere feel, a strong revulsion from the president's aggrandizement of power. They were looking for a candidate to speak and act against an administration that governs by fear.

A candidate who hopes to change a wrong policy that has sunk deep roots in the political establishment must educate public opinion to support the change. That education is a long process; if you begin it on the day you take office, you have begun too late. Lincoln, throughout the 1850s, told the voters he was a moderate and that the Compromise of 1850 was worth abiding by. We have to obey the Fugitive Slave Law, he said, even though we know that slavery is wrong. But when the Dred Scott decision was handed down in 1857, he made the speech of a great educator, saying that every inference from that decision was wrong; and though he did not counsel disobedience, he chose the occasion to assert his disbelief in the premise that the rights of the slave holder to his property superseded the rights of a black man under the Constitution. He drew a line, then and there, and showed the character of the decisions he would support.

Obama appeared to have drawn his constitutional line at FISA (as he appears to have drawn his foreign-policy line at the war in Iraq). With his shift on FISA, he has kicked up dirt, this way and that around the line. It is impossible to see where he drew it any more.

Comments

[Binea]

http://www.youtube.com/watch?v=m4byv2D_JOU&feature=user
Why aren't more Liberals Joining Naomi Wolf and Ron Paul among other speakers in these rally's.
We need to demand that the government obey the constitution.
the address above is from video of the Ron Paul March on Washington, yesterdayin front of the Capitol building.it features Naomi Wolf,Ron Paul,chuck Bawlwin ,and others.

[repearwo]

Me, I am an American Globalist. The fact is that this will not be an American Century. Has little to do with what we say or do in this country. There is just one fact that tells the story. Americans make up about 5% of the worlds population and consumes 30% of the worlds resources. When those figures begin to come into porportion we will be luck to fight for 5% of the worlds resources.

Add to that fact that the lowest 99% of Americans has only 47% of the wealth, look around you and figure what 1/12th of you life style you want when the rest of the world takes its fair share. And it will. It is already happening. (cite:http://www.slideshare.net/cmulbrandon/income-distribution-in-the-united-states)

Either we learn to compete in the World Economy (Globalism) or learn to live with a lot less of everything, or both.

We have lived the life style we have lived for the last 60 years off the backs of the rest of the world. We will now have to earn our own way. I know it i shard to hear and believe, but you can check it out. Why did gas prices rise in the mid-70's?

[Bonobo]

This is sort of brain dead on Obama's part. When your only selling points (other than speechifying) are judgement and moral courage, caving into the Worst President Ever doesn't really help.

[Leosun]

No, it doesn't seem so. Is it better to elect John McCain?

[Bonobo]

This is a big problem with a two party system. It quickly becomes a contest of least worst. What we really need is a system that allows several choices, so we would have something else besides dumb and dumber. I suggest proportional representation.

[KidSampson]

It's time to admit that the neocons have won. They have convinced the American people that a vast horde of swarthy muslims are bent on destroying our country and are pose a more dire threat than the communists of old who were bent on corrupting our "precious bodily fluids." That is why the congressional Democrats cave in time and time again: exchanging constitutional freedoms for a degree of imagined security is popular with the electorate.

Nonetheless, the actions of Obama, Pelosi, et. al. cannot be excused. In a democracy, bad leaders flout the will of the people, mediocre leaders obediently follow the will of the people, and great leaders fashion the will of the people into something noble. The Democrats have proven their mediocrity when the country needed great leadership to revive the American will for universal human rights.

[cadbury]

Few people have commented on the fact that, unlike Obama, Hillary voted to protect/repair the constitution. Interesting, eh? "Nays" also included Dodd, Kerry, Byrd, Feingold, Biden, Reid -- hardly flaming radicals! I think Obama had plenty of cover to vote (if not to filibuster) as he had promised. After his recent mad dash to the center-right, does anyone seriously think Obama wouldn't have voted to authorize the prez to go into Iraq if he'd been in the Senate? If so, I've got this really neat bridge to sell you in Brooklyn...LOL

[AuntSally]

There is no doubt in my mind that Clinton's vote was also sheer poltical calculation. I suspect that she's still got fantasies running around her mind of somehow wresting the nomination; she saw a vigorous progressive uprising against Obama on this, and threw her lot the other way. I doubt she's even read the bill.

[cadbury]

HRC talked repeatedly about getting the Constitution out of the "deep freeze" of the Bush years on the campaign trail. So a kinder, more AUDACIOUSLY HOPEFUL interpretation would be that she kept her campaign promise. Besides, contrary to how she was often portrayed on HuffPo through the primaries, there is no doubt that she is a fairly liberal senator.

[repearwo]

The comments you refer to were on the first set of comments. There were too many so they started over. Hillary voted against FISA becasue she is not the candidate. Maybe she is free to vote her conscience, or maybe she is still hoping for a convention switch.

[leftLibertarian]

My liberty will NOT be Compromised!

Impeach the criminals Bush and Cheney you spineless DemocRATS!!!

[repearwo]

Why? All it does is remove them from Office, which happens in about seven months anyway.

[Retrofuturistic]

The American people presently have no recourse for their dissatisfactions. They cannot turn to their representatives because their representatives are corrupt. They cannot turn to the courts, because the courts are politicized. They cannot turn to the media because the media is owned by special interests. And they certainly cannot turn to their imperial president because he does not represent them. When you have no recourse, you no longer live in a democracy, because you are then RULED.

Obama has a law degree. He should know this. His decision on FISA contributes to our being RULED.

[repearwo]

We have always been ruled, I think you mean ruled without our consent. Maybe just your consent.

We are a democracy we have the Government we choose. We have recourse. You can get involved in local politcs and work your way up. Most people who reach Washington start at the local level. Obama did.

Find local candidates for State offices taht can them move up. Keep tabs on them.

Work for decentralization of power from Washington. We are far to large a Nation to have the Federal Government involved in Local and State Issues. The Federal Government should be there to Protect All citizens from abuse of rights and life by all enemies foreign or domestic.

We ahve a lot to figure out in this new century. We have large Challenges ahead. You are power less only if you allow yourself to be. If you want change, become that change. That was said by a tiny Indian man who threw the British Government out of India.

[jazzman]

Maybe I'm naive but what exactly was the political calculation? The Congress is enjoying a 9% approval rating. I suspect that much of that comes from their refusal to stand up to a rogue administration. People admire courage and abhor gutlessness. The Congress has caved time and time again on all sorts of matters that the American people wanted them to stand firm on. FISA and the telecom immunity is one of them. So, I don't get it. The only thing I can figure is that its not about the votes but about the perks and the money they get from lobbyists who buy and sell them like companies on the stock exchange. Because if they stood up to the President they would win re-election by a landslide.

[ResistanceisFutile]

What?, no Republicans voted against this?

[williamwilliam]

Enough 'two party' amateur hour theater.

Lets be frank.

The nation state is dead, with America making pious speeches
and footing the bill for drinks at the wake with the repeal of
The Fourth Amendment.

When Bush confidently proclaims that history will remember him
kindly, and compares himself to Washington despite the
obvious damage he continues to wreak, it is because
he's been talked into the idea that he is the founder of
a new kind of corporate global political order that supersedes
quaint ideas like 'America'.

That's what the trust fund frat boy smirk is all about.

Your rights and mine do not figure into the equation when it comes to the
the labor pains of this new corporate empire without boarders.

In this empire, you and I just shut up and pay the rent... or else.

As for Obama, well pretty words are pretty, but last week we've seen
where he 'stands' with regards that old piece of paper, The Constitution.
Evidently, he's decided to be Adams to Bush's Washington.

Enjoy your new country.

P.S.:

Dear Mr. Nixon where ever you are- come back. It looks like all is forgiven!

[repearwo]

Gee buddy when did the Congress pass an Ammendment to repeal the 4th Ammendment? When did the State Legislatures vote for it? A bill from congress has no power to repeal any part of the congress.

Get a Civics books and learn how your government works.

[janep576]

After reading most of the post here,I'm starting to believe that some here are just republican trolls.Before the convention is was all Hillary hate,now it's all Obama hate,are there any loyal party members here at all.You put Obama on a pedestal,now now that he's shown that he's human after all,you decide you don't like your choice after all.Fickle,very fickle.

[buckygreen]

Loyal party members? How about loyalty to the Constitution? I certainly don't hate Obama, but his dishonest position on this issue, and his condescension to his supporters in defense of his pragmatic=unprincipled vote, has raised major questions about his judgment, his credibility, and yes, where exactly his loyalties lie.

I'll vote for Obama now simply because the alternative is ridiculous, but to me, he has shown himself to be just another politician.

[repearwo]

I am glad you are going to vote for Obama, but don't just wait till election date. Get involved. If you do not beleive in Obama find a local candidate that you can work for.

Remember that bad things do not happen becasue of bad men, they happen becasue good men do nothing. It is your country, there are state elections and local elections. The President is jsut one man at the top of a huge pyramid of elected officials. Tomorrows leaders are running at the local levels today.

[PensacolaTiger]

It's not hate, it's disappointment.

[repearwo]

Then you placed too much faith in man. Obama told you it was not about him it was about us. He can not change the Country, we have to. He told you that after the North Carolina Primary.

[JennyJay]

"weakness of collective character" - in Congress?
Are you kidding me? . . . So what else is new?

[memphispaul]

Barack Obama(r)-Il

[rasthedestroyer]

Explain to this to me "He shaded the truth without making a false statement". Look if the guy lied then call him on it, but don't imply that he did, when your actually saying he did'nt. Not everyone will be happy with the Sen. opinions and no one should feel like their not supporting him if they don't. If we lose sight of the big picture Demo's might suffer a defeat that will set the country back at least 20 yrs. The next president might sit at least (3) S.C. judges. Have a little faith in the choice, remember we did have a choice. It's a good thing that more Americans are finally becoming involved in the process, but in typical American fashion we feel because we say it's right then it's right, King Dubya B. and Co. went as far as saying God told them to do it. Opinions like people come in all shapes and sizes and colors, sorta like a$$hole's and we all got one. I guess that's democracy at it's best, we get the right to be completely wrong. It's all B.S. but that's Amerikkka, love it or leave it.

[Leosun]

People, people! Like you, I am unbelievably disappointed in Obama's vote on FISA. I have read through the comments posted to various blogs for hours, and I'm quite dismayed. Many are written thoughtfully, presenting good information and opinion. However, a disturbing number sound like children having temper tantrums.
I want us all to take a deep breath, and imagine we are waking up the morning of November 5th with John McCain as our President. Really, REALLY think about it. Do you have the same sick feeling in your stomach as I do!?
We have to focus our continued fight for Constitutional freedoms, and Government accountability, both of which have been long gone. How will we have any kind of chance for success with McCain in office!? Rather than lie on your backs kicking and screaming because Daddy didn't do what you wanted, think to the future. I will continue to support Obama for President. This month, however, my contribution to Senator Obama went to the ACLU. As a statement of my focus.
Besides voting for FISA (GEEZ!), I continue to have a great deal of respect and admiration for Barak Obama. He thrives in a good marriage with a strong and accomplished woman by his side. He's an excellent Father with young children who he wants the best future for. He's innovative and diplomatic. He wants us out of the war. That's what I want. I will still be proud to have him as the leader of our country.

[leftLibertarian]

Leosun - Is it child like to love liberty? Is it child like to call the DemocRATS spineless for not impeaching the criminals Bush and Cheney????

[terramartom]

Collectively, all the politicians of the USA are crooks!!! Their only absolute is greed and power, the rest be damned.
Just when Senator Obama had a opportunity to stand for a cause to protect the American people and to possibly bring Bush and his croonies to justice, he caved!
The Democrats have demonstrated how powerless they are. Nancy Pelosi, and Harry Reid will down in History as just another two weak political stooges. All talk and zero action!!!

[Deaninphilly]

The delusion of many here is just mind boggling. With phrases such as "he can fix it once in office" is just absurd. He will not be able to fix it once in office. In order to do so he will need republican support to pass it through Congress, he will never get it. Do you honestly think in your head that the Republicans are going to allow immunity to be lifted? No. To say the least once immunity is given it can not be retracted. The only immunity that can be retracted would be for crimes after that particular bill would be passed.

I seriously doubt that many know how Government operates. Are you under some spell that once Obama is in office all he has do is say something and it is so. Just because we've had a Democratic leadership (Peolosi & Reid) who bow down to Bush at every turn does not mean for one instance that we are going to have Republicans do the like with Obama in office.

Fact is Obama had a choice and his chance to stand on principle rather than "hope". Hope that he would win office, Hope he could change this later. Those are not principles those are delusions to sell to those that do not see past the facade.

[foolchild0]

Well said. I agree completely.

[Alexandro]

I am not sure that he really hopes he can change this later - after all he has the constitutional background to understand that it won't be easy to reverse this, if not impossible. In addition he never said he would reverse it - he will review it. He didn't take a stand now so why would he later?
This, as many already said it, is a matter of character, principles and belief in the Constitution - I am deeply disappointed by his move and i agree with you and the author that it was a huge mistake what he did - NO MATTER WHY he did it!
I am aware, as so many others, that there is no "better" alternative to him though - but that doesn't make his decision any better or more palatable.
He is going to be better than Bush and McCain - but he is most likely not as good as many of us have hoped for.