Endless War
By The warrantless wiretap issue has grown too complex for me to comment substantively on, but a few points in this Jeff Goldstein post leapt out at me.
The first is Goldstein’s advice to the Democratic Party. Channeling Bull Moose, he asserts that questioning executive power is a bad strategic move
The Dems are putting themselves in a position just now to argue that what will no doubt be seen as legal technicalities—and those points are in dispute, even!—should have prevented him from taking steps necessary to protect the homeland, steps that DID in fact protect us. And by extension, they will be arguing that as a group they would have worried more about a contentious legal battle over a now unworkable statute (getting warrants on automated phone chains—which it is not clear were even legally necessary, provided the AG gave notice—would have been impossible) than they would have about taking bold actions to protect the country, knowing that we are indeed at war.
I’ve said it before, but it bears repeating here: just because some Dem elites don’t believe we are actually “at war”—preferring instead to think of terrorism as essentially a law enforcement problem that can be well-handled within the purview of the criminal justice system—that doesn’t mean we are not, in fact, at war.² Otherwise, their authorization of the use of force against al Qaeda could be seen as cynical at best and disengenuous at worst.
First, even if such criticism were unpopular, it would be necessary; the role of an opposition party in a democracy IS to question the activities of the executive, especially when that executive seems to be pressing against (let alone leaping over), its legal boundaries. Second, and more important, I get the sense that Goldstein is whistling past the graveyard. A fair number of conservatives, all with more integrity than he, seem to have been very troubled by the creeping power of the executive. Goldstein (and Wittman’s) response to genuine concern on the part of the opposition seems to be a squeaky “You’ll be sorry!” without resort to any analysis of (and, really, having little interest in) the actual political situation. The long and short of it is that Goldstein can save his advice for someone who cares. The Democratic Party would be ill-served to take advice from those who would be delighted by its destruction.
Second, I hope that Goldstein and others understand that when they derive extended executive power from the authorization of force against Al Qaeda (and I cannot comment substantively on whether that is a legitimate interpretation), they quite literally (and I mean this in the intended sense) are endorsing increased executive power forever. The war against Al Qaeda cannot be won, such that there will be a surrender signed on the deck of a battleship (or a UAV) at its completion, bringing hostilities to an end. To launch a war against Al Qaeda and terror more genuinely, then treat it as an actual war rather than as a military/police action, is to create a permanent set of hostilities. To then go so far as saying that this state of hostilities justifies additional executive power is a two-step; Goldstein ought to just go ahead and endorse the expansion of the purview of the executive, because what Congress, the courts, and the people give up to it now ain’t never coming back.
Third, and given that I come to this as an observer with no legal experience, this would concern me if I wanted to agree with Goldstein:
On several fronts, then, the legal question is murky (and the paradigm you choose will affect the degree of murkiness you see)—but there should be no doubt that, wherever you come down on that front, simply that there is a compelling legal argument to be made on the President’s behalf
Citing the fact that there is an argument to be made, rather than making and endorsing the argument, seems to me to be a sign of weakness. In his post, Goldstein does much more of the former than the latter. I would prefer to hear, were I a Bush administration supporter, that the argument was actually more compelling than the arguments on the other side. That Goldstein liberally dribbles his post with suggestions that the activities would be cool even if they weren’t legal would make me even more uncomfortable if I wanted to believe my President wasn’t breaking the law.