"...the rule of law is more fundamental to our national success than democracy or freedom, since without it, neither could exist. You can't have democracy if the president, once elected, can change the rules. You can't have freedom if some people are allowed to break the law while others are not."
[SNIP]
"Like the Cold War, the war on terrorism is not merely a military conflict but a battle of ideas. And just as the Cold War was won when Eastern Europeans abandoned communism and joined the West, the war on terrorism will be over when moderate Muslims have transformed the Arab world -- abandoning the radicals to their tents and their caves -- and joined the global mainstream...Before they get there, they'll probably be subjected to a lot of State Department speeches about why it's important to abandon such practices as arbitrary arrest, torture and secret electronic surveillance. They'll probably be told over and over again why it's important for political leaders to subject themselves to the same laws as their citizens. They'll probably hear lectures about due process, and other rights available to people in civilized societies. But as things are going now -- why on earth should they listen?
- Anne Applebaum, Washington Post, 12.21.05
Those excerpts come from an
excellent column by the Applebaum. In it, she gets at what keeps me up at night as I watch the president arrogate to himself one "war-time power" after another. Between that, and an item posted on
The National Review's (NRO) The Corner, I'm finally getting the debate I want - and I think the country needs. A response of sorts to Applebaum's column starts with the lead to this post The Corner by Mark Levin (you're looking for the one bearing the title
"Leadership," which shows up in the middle of the page on my browser):
"I think we've been looking at this NSA thing the wrong way. I have a question for Specter, Snowe, Hagel, Boxer, Kerry, Dasher, Dancer, Prancer, and Vixen: Other than declaring war (which it did in two joint resolutions) and raising money to fund an army (which it also has done), what is the role of CONGRESS or the JUDICIARY in making decisions about the prosecution of a war?"[tbf - emphasis added]
To address the gap between these points, it's vital that I start with a key assumption:
we are not at war. Never mind that Congress never remotely declared war (something that has stopped virtually
no past president). Now, I know we've got troops overseas and that Americans are dying for a cause - or, rather, causes; no two Americans seem to agree on what said causes are or the extent to which they apply to the endeavor. But, to a degree disturbing to consider, a majority of Americans have not signed on to, or have since fallen away from, the belief that the effort in Iraq connects
directly to the effort against Al Qaeda. Think what you like about Iraq, but it's clear that all these
ad hoc legalistic reactions - whether it's "detainee/detainer relations" or the current National Security Agency wire-taps - we're not directing those efforts against Iraqi nationals...and we never have.
That leaves Al Qaeda and a bit of a puzzle in terms of calling this a war. When we confront Al Qaeda, we cannot do so on terms of regular warfare. Put another way, he do we get at these guys? I've never once received a satisfactory response to that question that didn't boil down to acknowledging that this is, in essence, an aggressive police action; again, from that, I'd argue that we are not at war.
I think this has acted as an unacknowledged backdrop to my thoughts for a couple months now; it's only dredged up to the surface with this latest example of executive over-reach (one of the
scarier end-goals of the Bush/Cheney administration; for these guys, a strong executive should be the norm). I think this for reasons that go well beyond what I've got above. Some of those, though, appear in
an article written by
Reason's Matt Welch (and it's a good article; I'd encourage people to read the rest 'cause it makes a good point). The key comes with the second of three bullet points in that piece:
"The opponent in the Cold War represented an ideology that governed dozens of countries, produced some material "successes" (Sputnik, Olympic gold medals, etc.), and held significant sway in the democratic West. Islamic fundamentalism has produced basically nothing of value, and is only present in the West as an isolated if sporadically explosive strain within immigrant communities."
That's not to argue that for something to meet my definition of war, it's got to have an enemy of Soviet proportions. For me, the key differences boil down to, 1) our options in coping with the threat; and, 2) how quickly and totally the enemy can harm us. I've covered the first one above (to some extent), but it's the second one that matters to the rest. We are living the time-line with Al Qaeda. As often as we're reminded that no attacks have occurred on American soil, there's virtually nothing out there to demonstrate that we've been saved from a credible, fully-formed plot to kill Americans - indeed, all the plots I've read about seemed closer to half-baked than anything else. In other words, the evidence suggests that Al Qaeda cannot easily attack the American homeland; that translates into to time - not limitless time, but real time - to actually address the deficiencies in our intelligence/spying apparatus (I'd also add that it's curious what we're not doing - think improving proficiency in Arabic).
It's possible, of course, that the Bushies have foiled one plot after another beneath the radar. On that subject, one of
NRO's other contributors, James Robbins (who replied very politely to one of my notes, as, in my experience, all
NRO columnists have), offered a suggestion to the president, in
a wider defense of his actions:
"It would also help if the White House released some information on how the surveillance has helped keep the country safe. What attacks were disrupted, what terrorists were taken down, how many people saved? A few declassified examples would be very useful to ground the discussion in reality rather than rhetoric."
Given the state of trust between the partisans - in the country in general - I think that's a great idea. I'm only assuming that someone, somewhere among the Democrats can independently verify the specific incidents, because, given the times, I also suspect that's a minimum requirement. Whether conservatives like it or not, the president has a
MASSIVE credibility problem - and that's not just with the Michael Moore wing of the Democratic Party; look at the polls and count the number of confessed liberals for an idea of the divide. Given that we are not "at war" - I would argue not at all, but I think most people would agree that even if one accepts we're at war, we're not at war in a way that looks familiar to most Americans - the burden to justify his various power grabs resides squarely with the president.
What I'm getting at here is, so long as you assume - as the
NRO crowd clearly does - that we are not only at war, but an active, "any-minute-now" kind of war, yielding these powers to the president makes sense. The problem comes when one does not; that's when Applebaum's caveats about the rule of law trump pretty well everything the president is arguing.