Via numerous sources (War and Piece and Kevin Drum), this Newsweek story about the internal fights in the Bush Whitehouse, Vice President's office, and Department of Justice about what the limits of Presidential authority are. Surprisingly, it turns out that there were a few people who put roadblocks up in front of the President.
These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.
Of course, most of them have now left the administration. Aren't we lucky.
By the way, read that last sentence in the quoted paragraph again ("These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.") Uh, no. If we were a nation of laws, then the proper system of checks and balances (courts and/or Congress) would have stepped in. Instead, it took men to risk their careers to step into the breach left by the failure of the institutions. The reporter is an idiot.
Still, very much worth a read.
Posted by baltar at January 30, 2006 01:23 PM | TrackBack | Posted to The Ever Shrinking ConstitutionWell, the checks and balances are stepping in, sorta, albeit a day late and a dollar short. The press is on the case and the nonexecutive branches of government are starting to follow, even if kicking and screaming.
If there were no checks and balances at all, we wouldn't even know about any of this.
The reporter is still an idiot, though. This is yet another example of someone invoking a cliche they don't fully understand (or at least haven't thought through) just because it sounds good. (The principle has long since been "vindicated"; a few administration lawyers resigning in a collective huff -- however righteous their cause -- doesn't say doodley-squat about the principle, only about the behavior of men who might have forgotten it.)
Posted by: jacflash at January 30, 2006 02:31 PM | PERMALINKGood point. This story wouldn't have been written if the whole issue hadn't been in the spotlight.
That said, I still don't see any actual check or balance operating (at least, nothing from the other branches; the press is doing it's usual check/balance thing). I'll believe the Congressional hearings are a check when they pan out to something substantial.
Posted by: baltar at January 30, 2006 02:34 PM | PERMALINKI'm not holding my breath on Congress. But sooner or later, some "liberal interest group" will file a suit and it will work its way through the system. It'll probably take too long to do much good in this particular instance, but it might be a worthwhile precedent.
Posted by: jacflash at January 30, 2006 02:45 PM | PERMALINKWell, I wouldn't expect the Courts to be your savior. They are becoming more and more federal government power and secrecy-friendly with each passing day (and with each passing Bush judicial nominee).
Like it or not, we're likely to have to wait for Congress to grow a spine - which hopefully they'll manage before things spin so far into the land of an imperial presidency that there's no going back.
Posted by: Armand at January 30, 2006 02:55 PM | PERMALINKyeah, i've said it before somewhere: the real defenders of the principles of checks and balances a propos any branch are located in other branches. hence its pernicious when bush claims that his warrantless surveillance has adequate protections in the form of various asserted layers of review within the executive. the framers, and hence the constitution, didn't trust any one branch to objectively restrain itself in its use of its constitutionally delineated authority. any honest originalist can tell you that. why bush's administration should be different is something they can't say.
and the next time someone in the admin refers to it being a new world with new demands, remember how different their tune is when the subject is the death penalty, physician-assisted suicide, medicinal marijuana, or abortion, all of which get the originalism response.
which is it? is the constitution a living adaptive document or a document fixed-in-time and immutable? listening to the bush mouthpieces, it's pretty hard to tell.
as for the courts, they deserve more credit. on hamdi, indefinite detention, and on the fourth amendment generally, the supreme court has been pretty good where it counts.
Posted by: moon at January 30, 2006 04:32 PM | PERMALINKYeah, but the Supremes only take up a handful of things of their choosing. The DC Circuit ends up being the final place a lot of these things get decided - and of late, well, I don't have much faith in them constraining the power of the executive branch.
Posted by: Armand at January 30, 2006 04:59 PM | PERMALINKI'd bet on the DC Circuit acting before this Congress, but I admit that's not much of a choice.
Posted by: jacflash at January 30, 2006 08:28 PM | PERMALINK