The Nixon-Bush doctrine
When a duty to protect supercedes a duty to abide by the law
President Bush views himself as a wartime president in the tradition of Lincoln and Roosevelt.
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Presidents, in wartime, tend to think they're above the law; commanders-in-chief who rule absolutely.
President Lincoln abolished habeas corpus (the right to a trial) during the Civil War -- clearly unconstitutional, but he did it. President Franklin Roosevelt imprisoned Japanese-Americans -- U.S. citizens -- in concentration camps during World War II -- clearly unconstitutional, but he did it.
Richard Nixon probably put the case most clearly in an interview with David Frost back in 1977.
Frost: "So ... what ... you're saying is that there are certain situations ... where the president can decide that it's in the best interests of the nation or something, and do something illegal."
Nixon: "Well, when the president does it that means that it is not illegal."
Frost: " By definition."
Nixon: "Exactly, exactly. If the president, for example, approves something because of the national security ... then the president's decision in that instance is one that enables those who carry it out to carry it out without violating a law."
President George W. Bush, commander in chief in the war against terror, is squarely in the Nixon camp. He has asserted his right to hold American citizens indefinitely without charging them with any crime if he labels them "enemy combatants." He holds detainees of other nationalities at Guantanamo, some with access to lawyers, some not.
His attorney general, Alberto Gonzales, has referred to the Geneva Conventions on the treatment of prisoners of war as "quaint." Bush has asserted America's right to torture prisoners. He has asserted its right to eavesdrop on U.S. citizens because they might be talking to terrorists.
Gonzales was on Capitol Hill this week, defending that last presidential power before the Senate Judiciary Committee. Gonzales said he was astonished that anyone would question this.
"Our enemy is listening, shaking their heads in amazement that anyone would imperil such a sensitive program," he said.
There's a law that sets up a special court to authorize wartime snooping. Why not use it?
"The short answer is we didn't think we needed to," Gonzales said.
Full disclosure note: I was ill and didn't attend the hearing; these quotes are from news reports. But none of them is in dispute, as far as I know.
What seemingly unconstitutional things might the president order next?
Gonzales: "I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized."
Wiretaps on your domestic calls? Someone reading your mail, checking your library to see what you're reading, recruiting informants where you work? All legal under the Nixon/Bush doctrine. The underlying notion is that anything goes, as long as you're at war.
But if you end up alive but spied on by your own government -- Big Brother Is Watching You, in the famous phrase from George Orwell's "1984," then who won? Not democracy, that's for sure.
Some in the hearing noted that.
"There is no check and balance," Sen. Lindsay Graham, R-South Carolina, said, under the administration's theory, and of course he's right; there isn't.
Tommy Lynch, director of a project on criminal justice sponsored by CATO, a libertarian think tank, said, "the overriding issue ... is the stance of the administration that they're going to decide in secrecy which laws they're going to follow and which laws they can bypass." Just so.
Toward the end of the hearing, Gonzales simply refused to answer some questions, prompting Sen. Patrick Leahy, D-Vermont, to say, "I forgot; you can't answer any questions that might be relevant."
This is all made worse by the fact that the war on terror is probably eternal. It's not a philosophy; it's a tactic, used by whichever side doesn't have the big army, the jet fighters, and so on.
The Jews used terror when they were fighting to establish Israel; Menachem Begin, later prime minister, blew up a hotel in Jerusalem.
Would Mr. Bush have opposed terror then? Or now in Chechnya or Northern Ireland, or Kashmir? It's a pretty good bet it always will be in use somewhere, simply because it's how you resist if you don't have lots of troops and guns.
So is the all-powerful commander in chief the wave of the future?
Maybe, unless Congress asserts itself and comes up with those checks and balances Sen. Graham notices are missing. Will that happen? Anybody's guess.
Mine is, maybe after the '06 election, but probably not before then.
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