Column

One bomb away from losing rights

By ROBYN BLUMNER
Published September 9, 2007

For months, Democrats in Congress had resisted White House demands that they pass a bill to approve warrantless domestic wiretapping. Democratic leaders were willing to make small technical fixes to the Foreign Intelligence Surveillance Act, but not give the president a swath of new, unchecked powers to eavesdrop on Americans.

Then a funny thing happened. Just before Congress took its August recess, President Bush and Republican leaders in Congress started suggesting that an al-Qaida attack was imminent in the nation's capital.

Bush told the nation in his weekly radio address on July 28 that "America is in a heightened threat environment," and "our national security depends on" passage of his version of the wiretap bill.

At about the same time, Senate Minority Whip Trent Lott, R-Miss., shared that he had been warned that "disaster could be on our doorstep." He said people should leave Washington until Sept. 12 to be safe.

The Democrats, nervous that any domestic attack would be blamed on their failure to let the president ignore the Constitution, predictably caved. At least temporarily, they handed Bush the power to intercept Americans' international communications without court oversight, swatting away the explicit protections of the Fourth Amendment like an annoying gnat.

Then, with mission accomplished, the imminent threat disappeared. We didn't hear another thing about it.

Accusing opponents of inviting the next attack on American soil if they don't acquiesce is one of the administration's favorite tactics. That is how it passed the USA Patriot Act and later its reauthorization, as well as the disgraceful Military Commissions Act of 2006. It is also how the administration beats down those on its own team who deign to raise civil liberties concerns.

A fascinating piece in today's New York Times Magazine features extended interviews with Harvard law professor Jack Goldsmith, a conservative lawyer who for nine months headed the Justice Department's Office of Legal Counsel. In vivid detail, Goldsmith describes how the administration used the specter of terrorism as a means to expand the power of the presidency.

This was especially true, according to Goldsmith, of Dick Cheney's top aide, David Addington, who once told Goldsmith that if the OLC ruled against an administration policy, "the blood of the hundred thousand people who die in the next attack will be on your hands."

Addington seemed to relish the coming of another big one and what powers loyal Bushies could arrogate in the aftermath. Goldsmith recalls him saying: "We're one bomb away from getting rid of that obnoxious (FISA) court."

In other words, after one more terrorist attack, the administration could get Congress to wipe away any kind of warrant requirement for domestic spying.

These fly-on-the-wall insights are contained in Goldsmith's soon-to-be-released book, The Terror Presidency. He is donating the profits to charity, Goldsmith told the New York Times, so no one will think that he is doing this for the money.

Goldsmith came on board at the OLC in October 2003 as a true believer in broad executive power and the need for exigencies in the face of dire threats, he told the New York Times. But he couldn't countenance the many constitutional excesses of the White House, particularly its open contempt for the other branches of government.

Goldsmith said he regularly clashed with White House insiders, Addington especially, who was always the "biggest presence in the room" and Cheney's proxy.

Goldsmith said he infuriated Addington by determining that the Fourth Geneva Convention applied to all Iraqi civilians, including terrorists and insurgents. The administration was used to picking and choosing to whom the Conventions applied.

And Addington was again enraged, Goldsmith said, when the OLC head withdrew two legal opinions that came to be known as the torture memos. One had been used to give the CIA legal cover to engage in abusive prisoner interrogations.

Goldsmith - flashing his right-wing stripes - expressed in the New York Times interviews lingering regard for some of his former colleagues. But with the same breath he explained how they demonstrated an almost pathological disregard for the law.

In his book, according to the New York Times, Goldsmith wrote that they did to FISA what they did to other objectionable laws: "They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations."

Team Bush and its "one bomb away" agenda would use the next attack to finish the job of consolidating the nation's power in one man. And since Congress is demonstrably cowed into submission by the mere prospect of the next bomb, imagine how it will fold when the next one actually falls.

The resiliency of our constitutional system is only as strong as the will of the leaders we have defending it. Which is to say, not very - not very, at all.

[Last modified September 8, 2007, 23:20:00]