What If Janet Reno Had Said This?

Attorney General Alberto González gets half a point for candor, but only half a point - because while he's forthcoming enough to admit that the Administration now believes it has authority to wiretap purely domestic communications without court warrant, he's still playing games with the public about exactly what the National Security Agency is up to:

Gonzales: Bush Could Order Domestic Wiretaps: "'I'm not going to rule it out,' Gonzales said, referring to the possibility of monitoring purely domestic communications.

The comments mark a dramatic departure from previous statements by Gonzales, Bush and others within the Bush administration, who have repeatedly stressed that an NSA eavesdropping program ordered after the Sept. 11, 2001 attacks was focused only on international communications.

Gonzales previously testified in the Senate that Bush had initially considered including purely domestic communications in the NSA spying program, but said the idea was rejected in part because of fears of public outcry. He also testified at the time that the Justice Department had not fully analyzed the legal issues of such a move."

I'm counting down the days until this Administration leaves office. But the problems they've left us will take years to sort out - and I'm not just talking about the $3 trillion (and counting) in debt that Bush and the Republican Congress have run up, or the Iraq War, or the isolation and resentment we've encouraged even among our allies, or the erosion in independence and scientific credibility of agencies like EPA, NOAA, and NASA. To me, one of the darkest Pandora's boxes this Administration has opened up is the use of maximalist interpretations of Article II of the Constitution.

Not to bore anyone with Constitutional law, but this really does matter and the public has mostly ignored this, I think. The unifying legal concept behind the NSA spying scandal, the torture and other atrocities at Abu Ghraib, Bagram Air Force Base, Guantanamo and other facilities, and "extraordinary rendition" by the CIA to countries that torture on our behalf, the indefinite detention of Americans captured on American soil (i.e. Jose Padilla) is that in times of war and crisis the President can rely on his powers as "commander in chief" to set aside such pesky statutes as the Foreign Intelligence Surveillance Act or the laws on torture.

Article II of the US Constitution, the only section that elaborates on the powers of the President, is remarkably terse. It says that the President "shal receive Ambassadors and other public ministers," allows him to nominate ambassadors and ministers and supreme court justices "with the advice and consent of the Senate," commands him to "take care that the laws be faithfully executed," and names him "commander in chief of the Army and Navy of the United States."

On this last, slender reed hangs virtually the whole of the Administration's legal arguments. The typical mode of argument, exemplified in this DOJ white paper, is that the President has "inherent" powers to do virtually whatever he may deem necessary and appropriate to preserve the national security of the US. Any law that stands in his way is unconstitutional if not capable of a more generous interpretation.

This is an utterly pernicious line of argument, not to mention one utterly alien to our system of rule of law and checks and balances. It's also one that the Bush Administration has gone to great lengths to avoid putting to the test, as seen most recently in its attempt to render the Padilla case moot by transferring him to civilian custody. And it's one that future administrations - Democratic and Republican - will surely pick up and use for ends more nefarious even than Bush's. This simply has to be nipped in the bud, yet the institutions that should have done so long ago - Congress and the courts - have mostly played along. And as Bruce Ackerman points out in this brilliant piece for Slate, if they won't stand up to the President in this relatively peaceful time, how will they behave when the next September 11th occurs?