Wednesday, April 05, 2006

"Strategery" for seeking accountability for the warrantless domestic spying program

Anonymous Liberal has a great discussion at Unclaimed Territory on how best to go about seeking to hold the administration accountable for the illegal warrantless domestic spying program. He's got some terrific ideas, though I disagreed with him on a few points:

As for the question of retroactive effect of any new legislation baptizing the warrantless domestic spying, this would make a standing argument more difficult, but I don't think impossible. The administration would still have spent four and a half years continuously violating a criminal statute; those who were subject to it are still victims of a crime (and those who have reasonable suspicion of having been victims still have the same argument that the secrecy of the program necessitates compelled discovery); and while they arguably lose the ability to seek injunction as a remedy, they could still seek compensation and punitive damages for having been the victim in the past.

Even then, I think they would still have a reasonable argument to seek an injunction under the argument that the administration ignored the statute before and claimed the right to do so, so it is likely that they are continuing to violate the terms even of the new legislation, whatever form it takes.

And as for the political inability of Congress to discipline the executive, instead waiting to defer to the courts: I think Congress could and should do so without waiting for the courts. This assumes the Democrats take control of one or both houses this fall, as is likely. Politically it may polarize committed Republicans, but I think past experience with Clinton particularly has ingrained on us an overbroad understanding of political risk, when the facts were very different. Clinton was a very popular president who was impeached for an offense only obliquely related to his office. Stonewall Jackson also enjoyed far more popular support and committed a far less offensive act than Bush before Jackson was censured. Bush and Cheney are deeply unpopular with the general electorate, and their offense is against the core of the rule of law and the Constitutional separation of powers. Their situation is not comparable to those of the past. Never before has a president openly claimed the power to ignore the law.

The real problem is they have still successfully framed the NSA scandal as a debate on national security. We need to reframe the argument in the popular understanding: The law already provided an eminently effective way to gather intelligence on domestic telephone lines. The warrantless domestic spying program did nothing at all to add to, and is irrelevant to, our national security. Rather, this is strictly a debate about the rule of law and the Constitutional separation of powers: is the President bound to faithfully execute the law as the Constitution mandates, or has the Constitution been replaced by whatever secret legal memos the President orders up from the OLC from one month to the next.

If the public and Congress understand the debate in this, its true nature, there will be no political price at all outside of further alienating the fairly small immoveable core of GOP-according-to-Bush loyalists who are apparently going to be alienated anyway by any development away from Bush reigning as a dictator.

Beyond that, even the general understanding that Congress must wait for the courts to hold the president accountable is a reflection of the dangerous erosion of Congress's powers that has been in progress for decades. The Founders intended Congress to be the pre-eminent branch, authorized not coincidentally in the very first article of the Constitution. The Constitutional Convention discussed the possibility of Congress appointing and dismissing executives as they were needed to accomplish discrete tasks. One of their long-running debates was whether to have a single chief executive or a group of co-equal top executives, and the terms of the debate centered on which option would be weaker and more easily accountable to the Congress; it was because they decided a single chief executive that would meet these conditions that they went with that option (see e.g. the record for June 1 and June 4, 1787). Other democracies have little problem calling new elections and replacing their prime minister when they grow dissatisfied with the one in office. Our office of president is different, and is impeachable only for high crimes and misdemeanors. Still, the double condition implies that it is not only high crimes, but also misdemeanors, i.e. minor crimes, that should disqualify the president from remaining in power. We should get used to treating our chief executive as firmly accountable to the legislative branch as other democracies do and as the Founders intended for our own nation. Continuing to treat Congress as unable to check the authority of the President, even if for chiefly political reasons, can only further cement this precedent as a self-fulfilling prophecy.

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