Wampum

Atrios writes:

Bush has declared that one man has the right to make the law whenever, in his determination, national security warrants it. While even I can understand the necessity of broad executive powers in emergency situations, we aren't anywhere close to being in one of those. If Bush decides that personally shooting dissident bloggers or pesky journalists in the head is in fact necessary for national security, then no one can object. The fact that he has not, as far as we know, done any such thing does not matter in the slightest.

By taking the power claimed by the President to the furthest extreme, Atrios tries to demonstrate that the claimed power is dangerous.

Given the power claimed by the current executive, it is not hard to construct nightmare scenarios to give the flavor of how such power might be used by a venal and unscrupulous president. Atrios provides the example of President Bush shooting "pesky journalists." I presented the Seven Days in May scenario, in which I noted that the combination of the 25th Amendment along with the power claimed by the current President might result in preventing a newly and duly elected President from ever taking office.

Neither my scenario nor Atrios' is even remotely likely to happen anytime soon. Is it fair to measure the wisdom of providing the war time President by using the most extreme and unlikely possibilities?

Super-investor Warren Buffett once commented about buying companies:

Buy businesses that an idiot could run, because one day one will.

Sometimes the idea is attributed to former Magellan Fund manager Peter Lynch:

Go for a business that any idiot can run - because sooner or later, any idiot probably is going to run it.

That idea is not only a good one for investing but its political translation is also wise:

If you provide powers to the executive, such powers will eventually be exercised by the most venal, opportunistic, and political president we ever elect. Those powers will someday be used by a President who makes Richard Nixon look like Jimmy Stewart in Mr. Smith Goes to Washington. If you do not wish a specific power to be used by the most venal possible president, put a limit on the power.

Consider where information gleaned from illegal warrant-less wiretaps has already been shared:

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.
Information from warrant-less wiretaps of Americans may well be misused by those agencies in furtherance of political or bureaucratic agendas.

The Pentagon has its own program of monitoring Americans (Quakers, for instance) as a result of the exercising of their First Amendment rights. Everyone of a certain age (mine for instance) remembers when the FBI used its powers against folks like Dr. King. In addition, it is not hard to imagine an FBI director using information gleaned from shared, illegal, warrant-less search eavesdropping on American citizens for its own (political and bureaucratic) ends in imitation of J. Edgar Hoover.

Sharing secret eavesdropping information gathered about American citizens with the Department of Homeland Security is also troubling. The agency has been used for political purposes before, most notably by Tom DeLay.

In addition, when the Department was founded, President Bush insisted that the Civil Service Act not apply to employees of the Department of Homeland Security. He got his way. As a result, the Homeland Security employees serve at the pleasure of the Executive branch and the President is free to fill the 170,000 or so positions with political allies:

A raise or promotion -- moving up in a pay range or rising to the next one -- will depend on receiving a satisfactory performance rating from a supervisor, said officials with homeland security and the Office of Personnel Management.

"We really have created a system that rewards performance, not longevity," OPM Director Kay Coles James said in a briefing for reporters.

If a future President considers "performance" to mean "unquestioning political allegiance" then the opportunity for abuse is obvious. What would Richard Nixon have done with the power claimed by the current President? What could a President far more venal than Nixon choose to do in the interests of acquiring every more power?

If unchecked power is given to the President, then such power will eventually be abused. If not by this President, then by another. The only way to avoid such abuse is to provide procedural protections that involve neutral decision-makers (such as judges), public disclosure (which very well might render the program ineffective for its intended purpose), vigorous oversight by other political bodies (e.g Congress) or some combination of the three.

Those who support the notion that a President in war time needs to be able to violate the law for an alleged higher purpose need to explain just how we will keep such power from being abused. So far, I have not seen any such suggestions being put forth.

Until then, the wisdom of Warren Buffett suggests that worrying about the use and abuse of unchecked power is completely appropriate, regardless of whether or not the current administration has abused the power. We should not have to wait until the President shoots a journalist (to use Atrios' extreme example) or a duly elected president is prevented from assuming office (to use mine) to look for ways prevent abuse.

Perhaps FISA is unduly restrictive. If so, let's pass a better law. If, instead, we just let the President break the law anytime he decides to do so, we should not be surprised when some President decides to use that power in ways we find abhorrent. At that point, it will be nearly impossible to fix. No statute will be able to bind the President and both impeachment and constitutional amendment are very blunt instruments with long time lags. It is far better to decide what checks are needed before the fact.

All of that suggests that the issue of whether or not the President can break the law should be litigated to the Supreme Court as quickly as possible. If the court finds that no checks on executive power exist during war, we need to know that before we choose our next President.