All the President's Confessions
Bush's statement last Saturday that he ordered domestic spying, knowing it was possibly against the law to do so, was an astonishing confession in the annals of American history -- and the defining moment of Bush's tortured presidency. Why, after all, would the president open himself to the possibility, however remote, of an impeachment proceeding?
If American presidents stand for anything, it is deniability. This is the prime directive of presidential authority. More than 50 years ago, Franklin D. Roosevelt, who invented the Imperial Presidency and presided over the country during World War II, avoided leaving a paper trail of his most sensitive decisions. Even his order to build an atomic weapon was vague. "O.K. - FDR" is the only surviving record of his ever having granted authority for what turned out to be the most expensive and secretive project in American history.
Later presidents also took pains to make sure they were in a position to deny knowledge of executive actions clearly outside the law. President Eisenhower would not admit to flying spy planes over the Soviet Union at the height of Cold War hysteria in the late 1950s, even though his Democratic opponents were making false accusations about Russian capabilities to strike the U.S. with nuclear weapons. President Kennedy kept a safe distance from secret plots to kill Cuban leader Castro (unsuccessful) and South Vietnamese president Diem (successful). President Johnson approved the fabrication of evidence that led the U.S. Congress to authorize a wider war in Southeast Asia.
None of these presidents ever admitted that their actions had broken the law.
Not even President Nixon, at the height of Watergate, admitted to breaking the law. Nor did Bill Clinton, who was a master of denial. He denied "inhaling" pot, he denied fellatio was real sex, he denied the Whitewater allegations.
Indeed, presidents past have denied breaking the law, even when they have, because following the law is their prime directive, their sole basis for democratic legitimacy. In political theory, the executive is a hybrid creature, part enlightened monarch and part accountable leader. The executive is free to act on the basis of his or her conscience -- the enlightened monarch -- but he or she must do so subject to laws approved by a legitimate independent body, on which the executive's accountability rests.
The need for a balance between executive action and democratic accountability was crucial to the creators of the American republic in the late 18th century. Until then, the democratic movements in Europe had succeeded only in subjecting monarchs to certain limits, such as "the power of the purse" in England. In the U.S., the president would be circumscribed by law. This was the great invention of American political practice, even more so than the idea of federalism, which enabled different states of the union to manage their affairs differently.
Because rule of law is fundamental to the moral basis of the presidency, presidents must even uphold laws they don't agree with. Indeed, the willingness of presidents to do so is their defining trait. In this regard, presidents are unlike other citizens. They do not have the option to perform acts of civil disobedience. They cannot argue, in essence, that their conscience does not allow them to abide by the law.
Why then is President Bush insisting on his duty, and even his right, to disregard the laws covering domestic spying, laws that demand the government seek a judge's authority before spying on Americans on American soil?
One explanation, of course, is that Bush hopes to find that he actually possesses the legal authority to unilaterally spy on his own citizens. The chances of him constructing a compelling case for this power, however, seem slim. He is not surrounded by great legal minds, and the consensus among constitutional scholars is clear. As Geoffrey Stone, a law professor at the University of Chicago, told the New York Times on Wednesday, "The president's authorizing of the N.S.A. to spy on Americans is blatantly unlawful and unconstitutional."
Given the likelihood that Bush's allies will find no legal basis for his actions, Bush's confession ought to be viewed as a triumph of lawlessness over law. After all, the president had options. Many commentators and critics have noted that he could have asked Congress to approve his spying program. He did not. Instead he chose lawlessness.
And now he is boasting about it.
His confessions -- for he keeps repeating himself, as boasters will -- are calculated, a means of positioning himself as a troubadour of conscience, the nation's chief advocate of lawlessness. His posture is not just the act of a desperate president whose own Republican Party stalwarts are abandoning him. Bush's advocacy of lawlessness lies at the heart of the right-wing agenda to remake America.
It is easily forgotten, now that the right-wing has controlled Washington for a decade, that right-wing tactics were nearly all borrowed from the highly successful tactics of left-liberals in the 1960s and early '70s. The prime method of the civil-rights movement, after all, was disobedience: unjust laws were to be disregarded. In the 1980s, the anti-abortion right, and especially its violent wing, embraced the notion that violent actions were justified to break laws they considered unjust.
The militia movement, which led to the Oklahoma City bombing 10 years ago, also justified illegal actions on the grounds of a "higher" law. More recently, the attacks on federal courts (and the judges themselves) by Tom DeLay and other right-wingers are expressions of the new conventional wisdom that there is a higher law than the law of the land, and that law is the right-wing agenda.
When Bush says he is breaking the law in order to protect Americans, he is rallying the forces of lawlessness in the country and standing on its head the spirit of civil disobedience, which defined the civil-rights era and the anti-Vietnam War movement.
From this perspective, Bush will not be unhappy if the entire liberal establishment in the U.S., including moderate members of his own party, find him to have broken the law by authorizing domestic spying by the NSA. All that is left to his presidency is a kind of hollow martyrdom. He will be quite pleased to go down in history as the man who broke the law to satisfy the dictates of the right-wing ascendancy in America.
His greatest legacy will be the promotion of a culture of lawlessness that makes disregard for the law the starting point for political discussions, not the ending point. That's why Bush wants to rally popular support for domestic spying; he knows that a majority of Americans may actually support the practice, which after all is the sort of vindication for his lawlessness that he seeks.
After Bush, Might will become Right in America. Laws will be bent to reflect the new ethos of lawlessness.
What can be done? The bureaucracy that administers the law must act in its own self-interest. Congress must appoint a special prosecutor to investigate potential crimes committed by the president, his staff and the staff of the National Security Agency, which is carrying out the illegal spying. Just as Lewis Libby, Dick Cheney's chief aide, was indicted for his role in the outing of a CIA agent, Bush's aides and NSA staffers could well be indicted for their roles in this disheartening scandal.
For people who want to halt the rising tide of lawlessness in the corridors of political power, indictments and prosecutions are cold comfort. But at least the unfolding of the legal process, however tedious and unsatisfying, will send a different message to the American people and the world.