Many have framed this issue as a tradeoff between civil liberties and national security. It is not. There are many venues to have that debate. One of them happens to be Congress. In fact, this debate happened about 30 years ago, when the FISA courts were created as a response to Nixon. The FISA court was created specifically so that the president could take appropriate actions to protect national security. In it’s history, it has approved over 99.9% of requests, so it’s not exactly a bastion of treehugging liberal civil liberties crybabies. It even approves tapping retroactively (within 72 hours), in case the need is truly urgent.
Further, if the president truly felt that FISA was tying his hands too much, he had an obvious option. It’s called Congress. At any time, he could have asked Congress to rewrite the rules. Data mining provisions could have been added, adjustments to modern technologies and the particular enemy we face could have been made. Although the president has loyal majorities in both houses of Congress, he chose not to do that. He chose to simply ignore Congress and do what he wanted.
This is what the Democrats/Liberals/Left/Libetarians are up in arms about. In point of fact, there has been remarkably little criticism for the idea that some domestic monitoring may be needed. The primary criticism is that the president knowingly, willfully, broke the law. When confronted, he has been unrepentant. Bush’s position is that he has the authority to ignore Congress’s explicit wishes. His position is that if Congress passes any law which he disagrees with, that law is unconstitutional. You don’t need to be much of a constitutional scholar to understand why this is a bad thing. It’s equivalent to saying that he does not recognize that Congress has any authority. In fact, this has been demonstrated. In his signing statement for McCain’s recent torture law, Bush claimed he has the right to ignore the law whenever he wants. He and his cabinet have been asked if the Patriot Act were not renewed, would he recognize that authority, and they have said they would simply work around it as needed.
This is not a president. This is a king. America got rid of them over 200 years ago, and we went to create the best society in the history of the world. It’s a shame to see the monarchy making such a comeback.
As a postscript, one of the primary authors of the legal theory underlying Bush’s actions happens to be Sam Alito.
Andrew Sullivan, whose essay on torture I referenced earlier, wrote an excellent article about the issue at stake here. I gotta admit, I’m starting to like the cut of his jib.