18 December 2005

Noble Aspirations

A few months ago, I quoted a distinguished American jurist who, by telling the truth, has essentially forfeited any opportunity to serve on an appellate court. After overseeing the trial of and passing sentence upon a terrorist, he said:

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

US v. Ressam, No. 99cr666 (W.D. Wash., Jul. 27, 2005) (Coughenour, C.J.).1 It appears, though, that the Students for a Democratic Society would have been perfectly at home with the way the current Administration handled domestic surveillance in the aftermath: with implicit (and often explicit) disdain for the third branch of the government.2 Apparently, the Administration doesn't believe that judicial oversight is consistent with defeating terrorism.

The NSA "authorization is a vital tool in our war against the terrorists," Bush said. "It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties." Congressional Democrats and some Republicans have expressed outrage at the NSA program, saying it contradicts long-standing restrictions on domestic spying and subverts constitutional guarantees against unwarranted invasions of privacy. Some were further incensed by Bush's remarks Saturday. "The president believes that he has the power to override the laws that Congress has passed," said Sen. Russell Feingold, D–Wis. "He is a president, not a king."

Peter Baker, "Bush Comes Out Swinging for Spying Program," Seattle Times (18 Dec 2005) (fake paragraphing removed for clarity).

Based on this Administration's actions and rhetoric, I somewhat disagree with Senator Feingold. Although Bush may not be a king, he appears to aspire to being one. Of course, he can't actually be one; the Constitution prohibits it: "No Title of Nobility shall be granted by the United States" (Art. I, § 9, cl. 8). That doesn't appear to have dampened his enthusiasim for wielding royal fiat, though.

Technically, Bush's arrogation of judicial authority was not treason. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (Art. III, § 3, cl. 1). It was only a betrayal of his oath of office, which requires him to "protect and defend the Constitution against all enemies, foreign and domestic." Presumably, that includes himself.

  1. I'm reasonably certain that the case number is merely a coincidence. Reasonably.
  2. The Miers nomination only reinforces this conclusion. Even G. Harold Carswell was more qualified, and he sure as hell had fewer conflicts of interest.