I’m frankly not sure even what to say to Josh Patashnik’s response to my post from earlier today. Essentially, he concedes the merits of the arguments Matt and I made but argues that “it would be comforting to at least see a bit more hand-wringing and equivocation from Yglesias and Lemieux before condemning Wittes’s piece” because Wittes –unlike us — is “grappling with the real conundrum here.” But the “conundrum” is perfectly straightforward. Senate Democrats acknowledged the need to update FISA and hammered out a deal. The administration reneged, and then the Democrats simply gave them what they wanted, and what they wanted was essentially a blank check. I don’t think any “hand-wringing” is required to reject this legislation because 1)once these powers are given it’s almost politically impossible to take them away, and 2)because I don’t think unchecked, arbitrary executive power is an effective means of protecting national security, and our Constitution is based on the same premise. The solution, in this case, is worse than the status quo, and it’s also extremely problematic to accede to the blackmail of crying “national security” every time the President chafes against legal restraints.
In addition, as I said last week it’s a mistake to focus too much on the particular nature of the Bush administration. Obviously, it’s especially foolish to give broad powers to a President who has demonstrated again and again that he will push any powers to the brink (and in some cases, as with FISA, beyond) of their limits, but it would be unwise to trust any administration with this authority. This would be bad legislation under a President Clinton or Obama, just as it’s bad legislation now.