"We are in danger of scrapping our checks and balances—not just for a few years (as was done during the Civil War), but for good.---What if we faced a constitutional crisis and hardly anyone noticed? As he quietly mastered the tiresome cat-and-mouse game inside the Senate Judiciary Committee last week, Judge Samuel Alito gave few hints of where he stood on a matter that goes to the heart of what it means to live in a republic. With a few exceptions, the media coverage didn't help. It's so much easier to talk about Joe Biden's big mouth or a right-wing Princeton alumni group or Mrs. Alito's tears than to figure out how the country should prevent a president of the United States from castrating the United States Congress.
I wasn't expecting Alito to say whether he thought that President Bush broke the law when he admitted authorizing warrantless wiretaps on American citizens, which is a clear violation of the 1978 Foreign Intelligence Surveillance Act (FISA). Alito is right not to comment on a specific case that, with any luck, will soon go rocketing toward the Supreme Court. I can even understand why he failed to offer an opinion on why Bush didn't simply seek to amend FISA (which Congress would have eagerly done after 9/11) if he believed his tools for catching terrorists were insufficient.
Even so, the nominee's "no person is above the law" platitudes did not suffice. Alito endorsed a famous 1952 concurring opinion from Justice Robert H. Jackson that the president's power is at its "lowest ebb" when he operates without congressional authority (the case involved whether President Truman could seize steel mills during the Korean War). But we never heard whether the brainy New Jersey jurist believes (like Bush) that the Constitution entitles the president to break the law in wartime.
Remember, this is not about whether it's right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The "momentous" issue (Alito's words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.
Sens. Dianne Feinstein and Russ Feingold ably raised some of these questions last week; Al Gore is about to weigh in, too. But the Democratic Party as a whole cannot stay focused on the issue. Some activists keep jumping ahead to the remedy for the president's power grab, which they say is impeachment. But that's a pipe dream and a distraction from the task at hand, which is figuring out how to reassert Congress's institutional role. This must by necessity involve Republicans, who control Congress. Unfortunately, most have so far shown little concern about being defenestrated by their president.
But "Snoopgate" is already creating new fissures on the right. The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority. Alito is in the latter category. His judicial opinions suggest a deference to executive power, and he once pioneered presidential "signing statements" that are meant to help judges come down on the president's side. Just recently, Bush attached such a statement to John McCain's bill banning torture in which the president reserved the right to ignore the law if he wants to.
Alito embodies the inherent contradiction of the conservative movement. The nominee is an "originalist," which means, as he said last week, that "we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." But at that time, the 18th century, the Founders could not have been clearer about the role of Congress in wartime. As James Madison put it, "In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislative and not to the executive branch."
Congress, for its part, is in no shape to assert its constitutional prerogatives. Gabby senators came across poorly in the Alito hearings. And the House side looks like someone just lifted a rock on a colony of slithering worms. The race to succeed Rep. Tom DeLay as majority leader, for instance, is currently between "Tobacco John" Boehner, who once passed out checks from the tobacco industry on the House floor, and "Tobacco Roy" Blunt, who inserted an amendment to favor cigarette makers in, of all things, the homeland-security bill. Fortunately, Sen. Arlen Specter will hold hearings in early February on presidential power. Watch them, please, even if you're tired of this cast of Judiciary Committee characters. Our whole system is on the line."-Jonathan Alter in Newsweek.
I think I am detecting signs of life in this organ of the "traditional media."
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