State of Exception

The "freedom-loving," "small-government" Right's insistence that George W. Bush can amend or ignore American law at will is becoming increasingly shrill and defiant, and increasingly bizarre. William Kristol, for instance, concocts an outlandish terra-related scenario in which Bush's illegal actions would supposedly be justified:

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?

If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.

But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist.

As ever, Kristol is too cute for words. 9/11 changed everything; in its wake, the president may flout our laws at his discretion. But we're not to assume that any post-9/11 alarmism has percolated down to the FISC, despite the fact that in 2004, the FISC approved - as per usual - every single application that came its way. Instead, we're invited to believe that Bush might not be able to get a legal wiretap of phone numbers found in the possession of "a senior al Qaeda operative." As evidence for this absurd proposition, Kristol invokes the case of Zacarias Moussaoui, "the French Moroccan who came to the FBI's attention before Sept. 11."

In making this illogical claim, Kristol conscientiously ignores the fact that the mishandling of the Moussaoui case had to do primarily with mistakes - to take the most optimistic view - at the FBI and DoJ, not at the always-obliging FISC. According to the Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee:

Our review suggests that the same fundamental problems within the FBI that have plagued the agency in other contexts also prevented both the FBI and DOJ from aggressively pursuing FISA applications in the period before the 9/11 attacks. Such problems caused the submission of key FISA applications to the FISA Court to have been significantly delayed or not made.

This bipartisan report also addresses the question of domestic surveillance:

We are also conscious of the extraordinary power FISA confers on the Executive branch. FISA contains safeguards, including judicial review by the FISA Court and certain limited reporting requirements to congressional intelligence committees, to ensure that this power is not abused. Such safeguards are no substitute, however, for the watchful eye of the public and the Judiciary Committees, which have broader oversight responsibilities for DOJ and the FBI.

In an earlier post, I discussed the relevance of the German jurist Carl Schmitt's theories on the "state of exception" to the Right's current view of executive power:

In a "state of exception" - which might be caused by a terrorist attack, a pandemic, political unrest, or any number of other things - the sovereign must go beyond the legal system in order to preserve (one hopes) the preconstitutional spirit of the law; this dictatorial figure assesses the law from a point outside its boundaries, and modifies or annuls it as necessary....Schmitt argues that the possibility - or rather, inevitability - of the state of exception can best be addressed by a quasi-divine sovereign with broad extralegal powers, which must be available whenever the sovereign deems them necessary: "the law cannot protect itself."

Kristol makes an argument uncomfortably similar to Schmitt's:

[T]he Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

"Some powers" is conveniently vague, of course. To invoke the Founders in defense of George W. Bush's specific, unnecessary extralegal maneuverings requires considerable insolence, and a remarkable amount of contempt for the public. James Madison said, “The means of defense against foreign danger historically have become the instruments of tyranny at home." And Thomas Jefferson said, "It is more dangerous that even a guilty person should be punished without the forms of law than that he should escape." There's no intelligent reason to assume that these men, or any other Founders, would've applauded BushCo's assault on their own system of checks and balances. More likely, they would've recognized Bush as a larval despot (at best), and Kristol as his shameless, cynical courtier.

Meanwhile, Adventus informs me that Dana Rohrabacher (R-Taliban) has been elucidating his own idiosyncratic take on constitutional law:

I'll tell you something, if a nuclear weapon goes off in Washington, DC, or New York or Los Angeles, it'll burn the Constitution as it does.