If a high government official pleaded the authority of the Bible as reverentially as is now routine in citing the authority of the Constitution, he’d be had up for idolatry. One way to vest mystique into the Constitution is to plead its inscrutability, or else suggest that only the high priests of the legal profession are equipped to interpret it. The secretary of state informed Tim Russert no fewer than four times on Meet the Press that she was not a lawyer. The clear purpose of making that point, in that way, was to suggest that the non-anointed can’t responsibly interpret the Constitution’s provision describing executive duties and prerogatives. That’s nonsense, and since Condoleezza Rice is a very smart lady, one had to acknowledge that she simply did not want to argue the meaning of Article Two of the Constitution. She didn’t want to be the first secretary of state to pass down word that it’s okay for a president to bug your phone because that’s what the Constitution says!
Well. All that the Article (II) does say is that the president is to be the commander in chief of the armed forces, that he can order subordinates to account for themselves, and that he can pardon them if they trespass on the law. Conjugate that as you like, but we all know (Tim Russert certainly knows) that you will find lawyers arguing that what the president had most recently done is unconstitutional, and lawyers who will say the opposite. Derivative questions immediately came up. Why didn’t Mr. Bush, in exercising the authority he claims inheres in the office, go through the procedurally reassuring step of asking officials of other branches of government for their compliant approval of what he was doing?
The president handled those questions at his press conference on Monday. On the matter of consulting somebody in the court system, he said the reason he hadn’t done so was the need for total secrecy. The slightest hint of what he was up to, he said, could have had the effect of undermining the entire enterprise. He gave an example. Evidently, up until a certain point, we were intercepting telephone calls being made by Osama bin Laden. But our success in doing this was brought to Osama’s attention, whereupon he altered his routine, and we never got on to the new means by which, for instance, he was instructing his agents which buildings in New York and Washington to run their airplanes into.
Could the president give an example of how the new interceptions had worked in just such a way, to abort terrorist attacks?
No, the president said. To do any such thing would be immediately to compromise an operation, tipping off an incumbent Osama bin Laden to what we were doing.
But what about a constitutional responsibility to elicit congressional approval of extraordinary applications of the authority of commanders in chief?
Why didn’t he tell Congress?
The president loved that question, and several times told the press that he had in fact informed Congressional leaders no less than one dozen times since he began the disputed process. It is of course left for the press to inquire why the legislators who knew about the practice didn’t raise their voices to object. Their answer is easily predictable. They did not object for the same reason that the president would not disclose what he was up to publicly: to do so would have been to jeopardize the success of a continuing tactical operation.
Those senators in the know who may now confess themselves as embarrassed by their silence will surely also cite effective executive practice in matters that bear on national security and the prosecution of justice. Why didn’t the president call on a judge to stamp his approval on a proposed phone interception? During the day, historic and extraordinary figures were revealed. Since 1979, the Executive has petitioned the courts to authorize 19,000 telephone interceptions. Permission has been granted in all but five instances. Curiosity understandably turns on which five projected buggings the courts said no to, and how many trysts were saved for the day.
The president pronounced it shameful that the practice he had authorized had been publicly disclosed. Doing this, he said, diminished the kind of operational silence ultra secret operations profit from.
What is a reasonable verdict from a conservative/libertarian on what happened?
1) The president did his job of attempting to out-maneuver the enemy.
2) The press may have overdone its interceptive curiosity, but it performed the function of a free press.
3) The legislative arm yielded to the demands of national security.
4) The courts, acknowledging a natural division of responsibilities, stayed away.