On October 19, the Senate Select Committee on Intelligence voted to strengthen court oversight of government surveillance while protecting telecommunications companies from civil lawsuits for tapping Americans' phones and computers without court approval. The bill is the FISA [Foreign Intelligence Surveillance Act] Amendments Act of 2007 which essentially supports the use of modern technology to track and penetrate enemy communications. Intelligence Committee chairman Sen. Jay Rockefeller, D-WV, has reviewed some secret White House documents on the surveillance program. He told the Washington Post that nothing he has seen so far makes him believe the use of the program has been illegal.
The Intelligence panel's bipartisan approval of the bill, 13-2, does not guarantee that the legislation will move forward. Sen. Christopher Dodd (D-CT), has placed a hold on the bill and has threatened a filibuster. In a statement issued Oct. 18, Dodd said, “the FISA reform bill sets a dangerous precedent by giving the President sweeping authorization to neglect the right to privacy that Americans are entitled to under the Constitution...I will do everything in my power to stop Congress from shielding this President’s agenda of secrecy, deception, and blatant unlawfulness.” The Senator’s opposition to strong presidential powers in the field of national security goes back to his opposition to President Ronald Reagan’s attempts to stop the spread of communism in Central America in the 1980s.
It may seem odd for liberals like Dodd to champion a strict “limited government” interpretation of the Constitution. On so many other issues, he favors a flexible, “living” constitution that can justify the growth of government programs and the undermining of traditional moral values. The unifying theme, however, is to simply reference the Constitution as needed to support partisan or ideological arguments. In the case of Constitutional restraints on what can be done to ensure public safety and national security, liberals are just as “flexible” and wrong headed in their interpretation here as elsewhere.
Case in point, Dodd’s own Restoring the Constitution Act of 2007 (S. 576). This bill is aimed at granting constitutional rights to foreign terrorists and enemy combatants captured by U.S. forces. The bill would authorize military judges to order trial counsel to disclose the “sources, methods, or activities in which witnesses or evidence against the accused was obtained” thus compromising intelligence gathering operations. It would also make it a “War Crime” for U.S. authorities to deny trial rights to terrorists or impose “cruel, inhuman, or degrading treatment or punishment” to captured enemy combatants. Dodd would also allow the Geneva Convention to be invoked by defense counsel, even though terrorists and insurgents are not party to the convention and their irregular form of warfare (particularly against civilians) does not conform to its norms.
Unfortunately, arguments based on appeals to “strict” Constitutional principles can seduce unwary conservatives who have anchored their beliefs in the concept of original intent. Bruce Fein, for example, is a regular columnist for The Washington Times and chairs the American Freedom Agenda which bills itself as “a group of conservative constitutional scholars and activists aiming to stop excessive presidential usurpation of power, torture, [and] warrantless spying.” The AFA has likened President Bush to King George III, and Fein has referred to Vice President Dick Cheney as “Emperor.” Their extremism is almost comic, as when it is claimed Bush “has insisted that the entire United States is a battlefield -- even pizza parlors -- where lethal military force may be employed to kill al Qaeda suspects with bombs or missiles.” The rhetoric of these putative “conservatives” is indistinguishable from that of the radical left. This is not surprising, since the road from right to left always runs across the libertarian ferry that transits the fever swamp.
The most important thing to understand is that the Founding Fathers were not naive academics debating abstract issues in a faculty lounge. They were experienced men of the world, who knew it was a rough place. Most of the delegates at the Constitutional convention were military veterans who had fought to create the new country. Everyone knew that George Washington, who had commanded the Continental Army, would be the first President, establishing the role as commander-in-chief as that office’s prime duty.
Dodd and the AFA believe that the purpose of the Constitution was to cripple the government, which is nonsense. It was the lack of a strong executive that had doomed the first attempt at forming a national government, the Articles of Confederation, and required the creation of a new, stronger institution. The United States was hemmed in by the British, French and Spanish empires. American merchants were vulnerable to plunder on the high seas. Congress had proven itself incompetent in the conduct of diplomacy, and was unable to fund the military. A centralized executive power was needed to manage foreign relations, westward settlement, international trade and national defense.
The creation of the Presidency was the most important accomplishment of the Constitution. In The Federalist Papers, where the original intent of the Founders is presented by John Jay, James Madison and Alexander Hamilton, twenty-five of the first thirty-six papers are devoted to topics related to national security. As Hamilton complained in Federalist #15, “There is scarcely any thing that can wound the pride or degrade the character of an independent nation which we do not experience” as the result of weak government. Before the convention, Jay, a veteran diplomat who had served as Secretary for Foreign Affairs, argued “to be respectable abroad, it is necessary to be so at home: and that will not be the case until our public faith requires more strength.” In Federalist #74, Hamilton argued, “Of all the cares and concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.”
Benjamin Rush campaigned to ratify the Constitution and later served as Treasurer of the Mint during the administrations of John Adams, Thomas Jefferson and James Madison. In regard to the lack of “kingly” authority in the Confederation, Rush argued in 1787 that immediately after the Revolution “we detested the British name; and unfortunately refused to copy some things in the administration of justice and power, in the British government, which have made it the admiration and envy of the world.” The Constitution would rectify this error.
One doesn’t have to go as far as the 19th century British scholar Walter Bagehot (author of The English Constitution, 1867) to understand the needs for strong leadership in a crisis. In his influential work Physics and Politics, he noted “so long as war is the main business of nations, temporary despotism – despotism during the campaign – is indispensable.” Bagehot was a lawyer, businessman and classical liberal (he edited The Economist for seventeen years) who thought “war has ceased to be the moving force in the world” because of the boom in commerce. Yet, during the writing of Physics and Politics (1867-1872), the Franco-Prussian War took place, uniting Germany with considerable impact on the future of power politics. There would be more regional wars in Europe and Asia, global waves of colonial expansion, two world wars, the Cold War, wars of liberation, and now today’s international, religious and ethnic conflicts. Thus, Bagehot’s assessment of how people have traditionally dealt with a violent world is of more use than his whiggish speculations about a harmonious future.
When news of Abraham Lincoln’s assassination reached him, Bagehot wrote, “We do not know in history such an example of the growth of a ruler in wisdom as was exhibited by Mr. Lincoln. Power and responsibility visibly widened his mind and elevated his character.”
Jennifer L. Weber, Assistant Professor of History at the University of Kansas, described the use of constitutional arguments by the Peace Democrats against President Abraham Lincoln in her excellent study Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (Oxford University Press, 2006). “Peace Democrats never recognized the magnitude of the emergency confronting the nation. They criticized Lincoln harshly and relentlessly. Blinkered by ideology, they remained insistent on a strict constructionist reading of the Constitution. Their interpretation would have banned Lincoln from employing most of the flexible and creative initiatives that helped the Union to win the war. Rather than offering realistic alternative solutions for the problems the war posed, Copperheads were obstructionists, doing little more than laying into Lincoln and his policies,” she writes.
While the wars in Iraq and Afghanistan are not on the same scale as the Civil War, neither has been the powers used by the Bush administration. During the Civil War, Lincoln suspended habeas corpus and declared martial law in some areas of the country. Antiwar newspaper editors were jailed, their publications closed and suspected propaganda was refused by the postal service. Military tribunals were frequently used, and Federal troops were called upon to suppress antiwar protests. And these were measures taken against American citizens on American soil to prevent dissidents from disrupting the war effort. The Bush administration has taken care to distinguish between citizens (who have legal rights) and foreigners (who do not). This is a vital distinction based on where a person’s presumed loyalty lies. There can be no presumption that a foreigner’s loyalty is to the United States. Unfortunately, it has become a tenet of liberalism that all people are to be treated the same regardless of national status, or the balance of rights and duties inherent in citizenship. This same blurring between citizen and non-citizen is central to how most Democrats and liberals approach the debate over illegal immigration.
Dr. Weber notes that the Copperheads were willing to “trade victory for peace” which would end pressures to expand governmental powers. They were willing to accept slavery in the Union and/or Confederate independence. Though Weber does not take the argument into the present, the Copperhead attitude is similar to those today who call for a “grand bargain” with rogue states (and possibly even terrorist groups) that would trade to them security and acceptance of their regimes for their pledge not to attack a retiring America.
Enemies always look for ways to exploit dissension on the home front. Gen. Robert E. Lee wrote Confederate President Jefferson Davis in 1863, “It is plain to my understanding that everything that will tend to repress the war feeling in the Federal States will enure to our benefit.” Al-Qaeda leader Osama bin-Laden, Iranian President Mahmoud Ahmadinejad, and many others understand this as well.
One favorable outcome of Lincoln’s eventual triumph over the Copperheads that Weber does note is “the politicization of Union soldiers. Their fury at the antiwar faction helped bring most of the army behind the Emancipation Proclamation...and turned many soldiers into lifelong Republicans.” And, of course, Lincoln is now considered by nearly all Americans as second only to Washington as the greatest of U.S. presidents, precisely because he made victory his central focus and was stubborn enough to accept nothing less. He is the example that should be consulted along with the Founders when it comes to assessing the nation’s need for strong executive authority in time of war.