I posted some new books on the side panel, which were referenced in earlier posts. Privacy was touched upon in some of my reading as was executive power and such, so it raised a red flag when Charles Fried (from the Reagan Administration) was on Bill Moyers with some Democrat opposite member and FISA came up. FISA, which requires a warrant from a special secret court, and even there can be obtained after the fact (this without touching recent amendments and such), was deemed as one of the unfortunate things that Nixon (whom Fried didn't vote for) wrought.
Oh? Why exactly? Apparently, it is really a silly law, and impersonal trolling of personal information (as compared to the individualized targeting that surely arises in some cases ... arising from such trolling!) is in no real way a threat to privacy. An argument disputed in the article John Dean cited.* But, what really pissed me off was the implication that because it was a silly, perhaps nefarious, law, the President could just ignore it. In fact, though he emphasized torture was very different, Fried appeared loathe to say as a matter of law (as compared to morality) the President could not do it.
This sort of thing from libertarian sorts (Fried respects a right to privacy etc.) suggests why some might take them seriously -- suddenly, executives can be trusted with power. Suddenly, we can trust a single person with power that Congress as a whole should not have in various cases. Suddenly, the rule that stupid or even harsh laws that Congress has the power to pass cannot be ignored or declared unconstitutional just because we do not like them becomes not part of a general principle. Now, utility or such matters. Sorry, doesn't wash.
An ongoing theme in the Cato Supreme Court Review is the difference between "politics" and "the law." One depends on the vagaries of the political process, the other is consistent and fairly set, upheld in part by judicial review that uses techniques that are specially tailored to judges (in the federal sphere, life time appointments). In practice, judging tends to be a bit more messy than some of the essayists there would like to admit (surely on panels where inconsistent swing votes were around long before Justice O'Connor). And, the trust in original understanding isn't any panacea. And, there too, some are too in love with the executive (John Yoo is on the board).
Such a lackadaisical concern for following the law should be deemed improper behavior, basically beyond the realm of serious discourse. See also [particularly, comments], the putative new attorney general, and his problems with saying no to waterboarding. The guy simply has no business being confirmed. The fact an apparently serious sort is quietly saying it on a national medium does not change matters. Fried btw disagrees apparently with John Dean, who wrote a book on the Bush years entitled Worse Than Watergate. He thinks various things Bush did are reasonable, if not all proper. Nixon said -- after he was President -- that when the President does it, it does not break the law. Bad bad.
But, Bush is different ... he speaks of constitutional power. A higher law. Well, didn't Nixon mean that too? Fried's opposite number on the show, who has yet another "just how bad things have gotten" book out (it's a cottage industry), underlines the various problems with Bush, including the secrecy ... he made outrageous claims, but often did not have the guts to make them out in the open. In fact, it was not noted that the only reason the whole breach of FISA etc. was made clear -- and the President raising constitutional and AUMF based justifications -- only because of leaks and media reports!
Finally, reference was made to FDR and Lincoln, who arguably also broke the law for ends history deemed justified. A core difference, as the other side noted, was that they were much more open about things and in various cases went to Congress for authorization ... without being forced. The examples that fit current events suddenly become few, especially when we note that the Civil War and ongoing war in Europe were more clear and present dangers than the current situations. With more at stake, they played more fair. And, in some cases, still crossed the line.
After all, President Truman's move to seize the steel mills led to the famous decision, and Justice Jackson concurrence, that is now cited to set limits on presidential power. Justice Douglas also made an essential point:
There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act.
And, in various cases, it does not mean either can do whatever is deemed in the nation's interest. This might not be something a Republican candidate for President can admit, but it's the truth in a limited government.
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* Torture is a unique violation of human dignity, but this does not mean lesser violations suddenly can be deemed acceptable. Privacy, especially in this intrusive age, is a prime liberty for us peons. As the essay referenced suggests, breaching the law and expected/understood rules of the game, lack of oversight, aggregation of lots of bits of data, and so on also leads to serious concerns.
Many deem fundamental core principles here that are very important to them, but like those who deem lack of belief in certain things an equivalent to lack of belief at all, apparently the wrong ones. Thus, they are the "unprincipled" ones, while right thinking sorts are the true "patriots." Or, so they tell themselves.