These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.
Meanwhile, on the reckless executive power front. Judge Posner -- taking a break from NYT Book Review articles advancing such an end, decided to write a reckless (or perhaps just liberty ignoring) Washington Post editorial that has received some negative commentary. I particularly like a reference to his "ad hoc" actions of the President aka illegal.
But, the Constitution is an annoying document, isn't it? For instance, see Hilzoy's excellent (par for the course) piece on how ridiculous (and dangerous) the claim is that AUMF or maybe inherent executive power defense of the recent breach of the law really is. Her piece arguably gives it more respect (i.e., extended refutation) than it deserves, but it just goes to show how easy it is to refute this on principle.
[I here argue against the claim that judges are more above the law than reckless executives, even without touching upon the whole "neither force or will, only judgment" line, but sometimes judges do have their moments.]
Oh, the lede quote comes from a decision by Bush Supreme Court short lister, Judge Littig, in an opinion refusing to agree to shift Padilla to civilian control. As a comment in a post explaining the decision noted, it was surely not a libertarian opinion. In the scheme of things, Padilla did not really come out better here -- the nefarious enemy combatant ruling stands and he is still in military custody.
But, the opinion might indirectly have a libertarian effect given its distaste (from the Right) of the administration's apparently fast and loose use of power whenever it is deemed convenient. One might say the opinion is sort of like one of those Weekly Standard editorials annoyed that the administration is not acting in a principled conservative sort of way.
But, the lack of principle is something both sides -- when they are honest -- can agree upon. For instance, I listened to part of a debate on recent tax cuts with the pro side put forth by a representative of the Cato Institute. He agreed with his sparring partner that Clinton was more fiscally principled, raising taxes and cutting spending unlike the current bunch who cut a bit of spending (guess who is mainly hurt) while cutting taxes [and the two are done separately, so the lie is partially hidden] in such a way that the fiscal gain is negative.*
Such is why Cheney came back from his overseas trip (did he pass Al Franken along the way? he too visited the troops) to break a tie in a tax bill. [Mike Malloy of Air America has a simply hilarious sound effect of Cheney being revived with heart paddles (CLEAR!) as well as breathing oxygen ala Dennis Hopper in Blue Velvet while he enjoys watching people being tortured. It might be over the top, but damn it's funny.]
Anyway, was secrecy and going it alone the solution? I'm unclear, first, why it has to be totally secret -- do our enemies not know we are somehow keeping track of communications? Yeah, their actions suggest total stupidity. Furthermore:
Had the agency openly sought the increased power in the immediate aftermath of the Sept. 11, 2001, terrorist attacks, "I'm sure Congress would have approved," said Elizabeth Rindskopf Parker, a former general counsel of both the N.S.A. and the Central Intelligence Agency.
By concealing the new program, she said, the N.S.A. breathed new life into the worst imaginings about itself. "This makes it seem like the movies are right about N.S.A., and they're wrong," Ms. Parker said.
Apparently, it is unclear how far Congress would have been willing to go -- Gonzo suggested they didn't ask Congress to clarify that President had the power used because it would probably not give it to them, but the suspiciousness issue is true in spades. And, FISA judges are concerned too, though an article basically polling them seems troubling. The pool is poisoned ... what else is new with this bunch?
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* Slate yesterday had a piece on how Clinton also -- in a much smaller way -- tried to argue that Gitmo was a sort of law-free zone, this time to keep out Haiti refugees. As noted by those who refute the claim that Clinton (and Carter) acted similarly to Bush (wah! he did it too! no fair!) respecting national security wiretaps, Clinton is not on par with these people.
I would add that I bet he would accept the bipartisan Senate "Patriot Act" safeguards, realizing that the net result would be a clear addition to executive powers without too much being given up -- while respecting across the board liberty concerns, especially (if) when serious allegations of his own overreaching are out there. And, I would therefore think much more of him, even if I would oppose the bill in part anyway since it would probably still go somewhat too far. He might have been a cad, but this guy is an ass.
OTOH, BC was no saint either ... but, we need to have perspective. Remember the Gore/Kerry is the same as Bush, so let's fantasize and vote for Nader (and forget all his flaws) crowd? I think they were the crowd who believed that letter written to Virginia ... Ralph Nader aka Santa Claus with his band of Nader elves.