1 Boring Old Man

David Ignatius has a very interesting oped piece in today’s Washington Post, The Wrong Wiretap Debate. Here’s a long quote:

The surveillance issue will test whether America really is a nation of laws. Sen. Lindsey Graham, a Republican who is one of a handful of legislators refusing to play the partisan game, argues that the NSA debate cries out for a modern equivalent of Marbury v. Madison , the 1803 case that established the parameters of judicial review of Congress and the executive branch. He and Sen. Arlen Specter are urging the administration to seek legal review of the NSA program, through the FISA court or some other means. Rep. Jane Harman, the ranking Democrat on the House intelligence committee and one of the few people who know what the NSA program is, argues that it can be accommodated under existing FISA rules. Others favor amendments to FISA to better embed the program in law. Any of these approaches would be better than the administration’s insistence that there isn’t any legal problem at all.

The air was thick with historical analogies at Monday’s session of the Judiciary Committee, but there’s one that is actually worth studying. When the Southern states seceded in 1861, President Lincoln took radical — and almost certainly unconstitutional — steps to preserve the Union. He raised an army without legislative authority, blockaded Southern ports, arrested a Baltimore militia commander without charges in an effort to intimidate Maryland against seceding and, when the Supreme Court tried to block him, suspended habeas corpus.

But soon after taking these emergency steps, Lincoln went to Congress to seek explicit legislative authority for what he had done. "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity," Lincoln wrote in his July 4, 1861, message to Congress seeking retroactive legal authority. Lincoln told Congress he had done what he thought was his duty in using his war powers. "You will now, according to your own judgment, perform yours."

Lincoln did precisely what Bush has so far refused to do. He sought clear legislative authority for his actions, knowing that he could not win the Civil War except by building a national consensus under a sound legal canopy. "Lincoln never did anything to prove a point. He had one goal, which was to keep the Union together and win the war," says Garrett Epps, a visiting professor of constitutional law at American University. That unifying vision is one the Bush administration and its critics must embrace. Either there is a center line in the surveillance debate, or there is no line at all.

It’s a great point. Lincoln really was acting to save the Union. He overruled the Constitution, and he knew it. So he then took it to Congress. He didn’t want to change our country. He wanted to preserve it.

Has anyone before George W. Bush ever tried to use the fact that we are at war to fundamentally change the Constitution?  The answer is "No." Not Lincoln. Not even F.D.R. who temporarily radically altered how we do business. George W. Bush is using wartime to effect fundamental changes in our form of government. The changes he is trying to implement are the same changes advocated long before he was elected in the think-tanks that supplied his Administrative Staff. The war itself was also a war hatched in those same think-tanks [long before he was elected], and deliberately started by George W. Bush and his Administration by actively promoting false information. It would not be at all paranoid to suggest that one of the motives in starting the made-up war in the first place was to have a reason to make the changes he’s now promoting as perfectly legitimate parts of his executive powers.