Thought Theater

The Cold War Revisited - The NSA Scandal genre: Polispeak

With the exposure of an alleged program of domestic surveillance by the National Security Administration (NSA), the Bush White House has found itself in its repetitive pattern of deflect, defend and redefine. At the core of the issue is determining what are the authorities granted to the President and the NSA by virtue of the FISA law, the Constitution, the Congressional authorization for military action following 9/11, and some loosely related rulings by the Supreme Court. While the initial response has generally followed party lines, several key Republicans have raised concerns as to the legality of the activity. There seems to be several trends of thought as to how to best address the matter. A number of Republicans who have voiced concern, have called upon the President to request that Congress change the law in order to grant him the flexibility and leniency needed to prosecute the war on terror.

The administration has rejected this call while putting forth numerous legal defenses from various departments asserting the legality of the activity as well as the need and intention to proceed. It’s obvious that the Bush administration quickly dismissed the suggested strategy. The calculations made in rejecting the strategy are relatively simple and have been followed by the all too familiar high stakes tactics that characterize this administration. If one imagines the Bush administration going to Congress to change the law, it would likely be seen by many as tantamount to an admission that they broke the law. Efforts to reframe the issue as part of the war on terror as opposed to a domestic surveillance scandal are in full spin. Hardly a surprise that 9/11 is again the mantra. While the chosen approach is a gamble with significant constitutional implications that may well carry forward to future administrations, the alternative is to arm the opposition with a reasoned argument for censure or impeachment. Simply stated, if you change a law to accommodate your activities, one could logically conclude you broke the law to conduct those activities. Handing the Democrats such a belated Christmas present is unfathomable.

What is most interesting about this strategy is that it allows one to assume that a tacit understanding exists that the law has been violated. To simply argue that such activities are necessary to the war on terror lacks validity when it isn’t taken to its appropriately logical, reasonable, and necessary conclusion…we must change the law. If one accepts this premise then changing the law to better accommodate the President in prosecuting the war on terror in light of the changing terrain presented by this type of battle is prudent and warranted. But it’s also politically dangerous. Had the administration initially used a ratchet approach whereby one presents the logical argument in order to change the outcome, this dilemma wouldn’t likely exist. Unfortunately, this administration is in the habit of wholesale power grabbing whereby they change the rules first and then present the argument to provide the authority for the already existing outcome. When opponents of this administration assert that this backdoor approach is a pattern and practice, in light of numerous examples, it becomes increasingly difficult to ignore their argument. With this constant chiseling away at the delicate yet deliberate balance intended by the founders of our governmental system, one is left in doubt as to either the degree of Constitutional understanding or its disregard driven by the desire to dictate predetermined deviations.

The rationale for any necessary expansion of executive authority is undermined by the means by which this administration proceeds to obtain it. Such practice has the potential to make all future exchanges between the Congress and the President rife with skepticism. For these reasons, this is a failed policy strategy wholly entrenched in the Bush style of act first, defend vigorously, discuss when forced, and lastly compromise and co-opt the solution when defeated. For a President who fashioned himself as a protégé of Ronald Reagan, he has ironically become the purveyor of policies that Ronald Reagan characterized as requiring a strategy of ‘trust but verify’. Sadly, the cold war that pitted America against the Soviet Union has been replaced by an increasingly divisive internal cold war. History will ultimately determine if the America envisioned by our forefathers prevailed.