Great American Hypocrites: Toppling the Big Myths of Republican Politics (30 page)

As but one illustrative example, consider the 2007 debate over legislation demanded by the Bush administration to expand drastically the scope of the President’s power under FISA to eavesdrop on the conversations and read the e-mails of Americans
with no warrants of any kind.
In October,
National Review
published an editorial on FISA and eavesdropping that described perfectly the conservative movement’s view of America today (at least with one of their own in power):

A sensible FISA fix would set a low threshold for the executive branch to commence monitoring. There should be
no restrictions
when targets are non-citizens outside the United States, even if they contact people
inside the United States.

So: The President and those under his command should be completely free to eavesdrop on every one of the international calls you make to, or receive from, any foreign “target”—with no oversight or restrictions of any kind. And since the designation of foreign “target” is within the discretion of the executive,
National Review—
following along with the official position of the Republican Party—is advocating that the President possess virtually absolute and unchecked power to eavesdrop on any international calls made or received by Americans. And that’s not all:

Reasonable suspicion should be the standard
when an American citizen or permanent resident alien is targeted….
As federal judge Richard Posner has observed, probable cause allows us to monitor known dangers, whereas the security challenge today is to figure out who is a danger.

So even when the President wants to eavesdrop on calls and other communications (such as e-mails) of
American citizens inside the United States,
there should be no more “probable cause” requirement. That standard, imposed by the Founders as a central check on federal power, is now too burdensome—so sayeth the conservative advocates of restrained government power and adherents to the original intent of the Founders. And they all but admit that their vision is barred by the Constitution—not that they care, as they proceed to argue:

It is irrational to give non-Americans within our borders probable-cause protection: The Fourth Amendment does not require it, and experience shows that most foreign terrorists who infiltrate the U.S. are either illegal aliens or temporary legal immigrants.

They argue for the elimination of “probable-cause protection” for
“non-Americans”
by asserting that the “Fourth Amendment does not require it.” Presumably, then, based on their own argument, the Fourth Amendment
does
guarantee “probable-cause protection” for eavesdropping on American citizens—yet
National Review
nonetheless expressly argues that this protection, even for Americans, ought to be abolished (“Reasonable suspicion should be the standard when an American citizen…is targeted”). Even by the premises of their own argument, then, they are expressly advocating the abolition of the core Fourth Amendment protection for American citizens—the right to be free from government searches in the absence of probable cause.

In fact, the United States has managed under every president from Carter to Clinton to defend itself in compliance with the probable-cause burden under FISA. Every U.S. president was able
simultaneously
to defend the national security of the United States and honor the requirement that American citizens not be spied on by their government in the absence of probable cause. That was true even as Ronald Reagan—as the
National Review
folklore goes—heroically vanquished the Soviet Empire.

But according to
NR,
that all happened before the Greatest and Most Sophisticated Threat Ever Known to Mankind—small roving bands of stateless and army-less Islamic Terrorists—Changed the World Forever:

International terrorist networks are different from the Communist threat that FISA’s Cold War–era authors had in mind. They are less predictable, more likely to strike, and more adept at exploiting new technologies which allow them to remain in contact with their operatives.

When Communists were the Enemy du Jour—when we faced the grave threat posed by what Reagan called the “Evil Empire”—they were the root of all Evil, the Soul-less, God-less Machiavellian Warriors with designs on World Domination who posed a grave, imminent, and existential threat to our nation, to everything we held dear. Back then, in the Era of the Communist Enemy, even to suggest that there was anything restrained or unthreatening or at least rational about the Evil Communists would subject one to all sorts of invective—involving allegations of anti-Americanism and treason and moral relativism and the like—from the
National Review
s of the worlds.

But no longer. Now that the Communist supervillains of yesteryear have been replaced by Islamic Terrorists as today’s Prime Enemy, Communists have undergone a radical, retroactive makeover. According to
National Review,
back then we could afford laws like FISA and we could expect our government to abide by annoying constitutional guarantees (such as the Fourth Amendment) because those Communist simpletons were rational, sensible, even honorable enemies—and not very sophisticated. By contrast the Enemies we now face are so cunning, so Evil, so fanatical, so scary that we must change the very nature of our country. Constitutional and other restrictions on government power are literally obsolete, argues
National Review,
because the people who insisted on those safeguards were unaware of the unprecedented Evil posed by the Islamic Terrorist.

Hence, the modern conservative movement embodied by
National Review
expressly calls for the complete abolition of restrictions on the President’s power to eavesdrop on virtually all of our international calls, and the abolition of probable-cause protections for when the federal government can monitor our communications. After all, if we don’t submit to all of this, we might lose our freedoms.

A belief in endless expansions of government power is—along with endless wars—now the defining feature of today’s Republican Party, at least its dominant right-wing faction. In April 2007,
The Weekly Standard
’s Michael Goldfarb participated in a conference call with former senator George Mitchell, during which Mitchell advocated a timetable for withdrawal from Iraq. The following day, this is what Goldfarb wrote about that call:

Pam Hess, the UPI reporter who gave us this extremely moving and persuasive glimpse of the liberal case for the war in Iraq, asked if timetables for withdrawal “somehow infringe on the president’s powers as commander in chief?” Mitchell’s less than persuasive answer: “Congress is a coequal branch of government…the framers did not want to have one branch in charge of the government.”

True enough, but they sought an energetic executive with
near dictatorial power
in pursuing foreign policy and war. So no, the Constitution does not put Congress on an equal footing with the executive in matters of national security.

So according to our nation’s right-wing liberty warriors, the American Founders risked their lives and fortunes in order to wage war against Great Britain and declare independence from the King, all in order to vest “near dictatorial power” in the American President in all matters of foreign policy and national security. And, of course, for the Michael Goldfarbs of the world, war and national security—and the near-dictatorial power vested in the President in those areas—now encompass virtually every government action, since scary and dangerous Muslims are lurking on every corner and the entire world, including American soil, is one big battlefield in the War on Terrorism.

Until the Bill Kristols, Dick Cheneys, John Yoos, and other authoritarians of that right-wing strain that define today’s Republican Party entered the political mainstream, one never heard of prominent Americans who describe the power that they
want
to vest in our political leaders as “near dictatorial.” Anyone with even a passing belief in American political values would consider the word “dictatorial”—at least rhetorically, if not substantively—to define that which we avoid at all costs, not something that we seek, embrace, and celebrate. If there is any political principle that was previously common to Americans regardless of partisan orientation, it was that belief.

One of the principal purposes of
The Federalist Papers
was to assuage widespread concerns that the President would be, in essence, a new British king. That fear was not eliminated or even diminished, but instead was
particularly pronounced,
with regard to the President’s role as Commander-in-Chief, which is why there are so many safeguards in the form of congressional powers designed to limit that role. All of this is excruciatingly basic and obvious, really not much beyond what seventh-grade civics students are taught about what distinguishes a republic from a dictatorship.

What the actual Americans who founded the country feared (as opposed to “hoped for and craved”) was that the President would wield “near-dictatorial power.” Anyone with doubts should simply read Article II—defining the powers of the President—and see how limited those powers are. Even the glorious-sounding Commander-in-Chief’s power is nothing more than the power,
when Congress decides to fund a military and when it authorizes the use of military force,
to act as top general directing troop movements and the like. In all other respects, those powers are checked, regulated, and limited by the people through their Congress.

In October 2007, Bill O’Reilly devoted the beginning of his
Fox News
show to warning Americans about the dangerous radicalism of John Edwards, proclaiming that “John Edwards has no chance to become president because he’s simply too Far-Left for most Americans.” After highlighting all the scary, fringe positions Edwards holds, O’Reilly summarized what Far Left America would look like once John Edwards got done with it:

Would you support President John Edwards? Remember, no coerced interrogation, civilian lawyers in courts for captured overseas terrorists, no branding the Iranian guards terrorists, and no phone surveillance without a specific warrant.

Just consider what this says about our modern conservative. In the current right-wing worldview, one cannot even fathom an America plagued by habeas corpus, search warrants, and a military that fails to torture its detainees.

O’Reilly has aptly highlighted here the new ideological divide in our political culture—one is now on the “Left,” even the “Far Left,” if one supports what were previously the defining attributes of basic American liberties. Conversely, one is Serious and Responsible and Centrist/Right only if one is too sophisticated and “tough” to actually think that such effete and abstract things matter. Under the cover of darkness, late at night, John Edwards must be reading filthy leftist tracts, like Federalist No. 84 by Alexander Hamilton:

The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he] or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation;
but confinement of the person, by
secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

And Edwards, along with the Far Left minions he leads, seems to be following in the footsteps of the subversive American-hater Thomas Jefferson, who wrote this:

The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume…. Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government.

What Republican stalwarts now call the “Far Left” was not, of course, the first “un-American” political faction trying to subvert freedom with their “un-American” warrant fixation. What today’s right wing now deems to be subversive radicalism was actually the centerpiece of America before it was even born.

In 1972, the U.S. Supreme Court unanimously ruled that the warrantless eavesdropping on American citizens perpetrated by Richard Nixon was unconstitutional. Nixon appointee Justice Lewis Powell wrote for the Court that the ideas which the Bill O’Reillys and Dick Cheneys today consider to be “left-wing radicalism”—namely, judicial warrants and strict oversight on government power—are the very ideas that lie at the core of American liberty dating back to British common law:

Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. “It is not fit,” said Mansfield, “that the receiving or judging of the information should be left to the discretion of the officer.
The magistrate ought to judge; and should give certain directions to the officer.
” Leach v. Three of the King’s Messengers, 19 How. St. Tr. 1001, 1027 (1765).

Lord Mansfield’s formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and
the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation.
Inherent in the concept of a warrant is its issuance by a “neutral and detached magistrate.” Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of “probable cause” instructs the magistrate that baseless searches shall not proceed.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.
Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359–360 (Douglas, J., concurring).

But those charged with this investigative and prose-cutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech….

The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised.
This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943–944 (1963). The independent check upon executive discretion is not [407 U.S. 297, 318] satisfied, as the Government argues, by “extremely limited” post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions.
Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.
Beck v. Ohio, 379 U.S. 89, 96 (1964).