And if you’re asking me to give Bush a pass on this because Truman, Eisenhower & Kennedy may or may not have done even worse, I’m not going to follow you down that road. Again, to a certain extent this all hinges on our own personal views of the people involved. Yes, Truman, Eisenhower and Kennedy may very well have overstepped the bounds. There’s a crucial distinction, though: I don’t believe for one second that any of them had the aspirations to unchecked executive power that Bush & Cheney do. To that extent, they’re really not relevant precedents. A far more relevant one would be Richard Nixon, who essentially believed that if the President does it, it can’t be illegal. All signs right now point to Bush believing the exact same thing.

Sorry to go all Rumsfeldian here, but: How do you know that what we know is all there is to know? You seem awfully sure that you know the facts here, but the entire point is that the administration doesn’t think you have a right to know the facts.

And “we” certainly retain our say in this: George Bush serves until January 2009, unless Congress decides to remove him earlier pursuant to its impeachment power.

And “we” wouldn’t be having this discussion at all if it weren’t for the fact that the New York Times decided to break the story—an act that many of Bush’s supporters are calling treasonous. So if they had their way, we would be completely in the dark about all of this…kinda hard to hold an administration accountable for things you don’t know it’s doing, isn’t it?

We could go round and round here, Thomas, but I think we should probably agree to disagree and move on. The bottom line is this: I wouldn’t trust a single member of this administration with my laundry, let alone with running the country. I believe their record speaks for itself: they have proven themselves to be both staggeringly incompetent and flagrantly duplicitous. I think I have the facts on my side, but if you believe that the administration deserves our trust, I really don’t know how we can get any further in this discussion.

In 1940, President Roosevelt authorized FBI wiretapping against “persons suspected of subversive activities against the United States, including suspected spies,” requiring the specific approval of the Attorney General for each tap and directing that they be limited “insofar as possible to aliens. ” 68
This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping. 69 However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to “intercept and divulge” communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added] 70 Attorney General Jackson’s questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts. 71
Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was “of considerable importance” because of the “gravity” to “national safety” of such offenses as espionage and sabotage. 72 Apparently relying upon Jackson’s statutory interpretation, Congress then dropped the matter, leaving the authorization of wiretaps to Executive discretion, without either statutory standards or the requirement of a judicial warrant. 73

___

I think an examination of historical practices makes it pretty clear that presidents have, in recent times at least, been very willing to draw the line where they please. Further, from what we know now about the NSA program, it isn’t nearly as concerning as, say, the activities of FDR or Truman or JFK or Nixon. And “we” certainly retain our say in this: George Bush serves until January 2009, unless Congress decides to remove him earlier pursuant to its impeachment power. “We” will choose his replacement, and “we” choose the Congress. (And note that Congress was informed of this matter.)

First, I edited the post within minutes of posting to clarify that when I say I “don’t object” to surveillance of al-Qaeda contacts with U.S.-based individuals, I mean with a warrant. Warrantless searches mean that there is no check on whether the contact is in fact with an al-Qaeda person.

Second, I don’t mean to exclude Democrats from these confrontations or abuses, and the steel seizure case is of course the source of the most important Supreme Court decision on executive power (Youngstown Steel). I also overlooked issues such as the Nixon-era confrontation over budget impoundment, although that’s important to Cheney. These four episodes were of a different type—they were highly secret, they involved invocations of extreme executive power, and they involved perceived threats to national security. I’m not sure the best words to distinguish them, but they are somewhat different from the very public claim by Truman to power in a domestic matter.

Am I getting warm, Thomas?

I’ve hit your house 3 times with this wrecking ball, and it’s still standing—it’s even more-or-less habitable still. Surely, therefore, you can have no rational objection to my continuing to hit your house with my wrecking ball . . .

They do lead (and did in the recent past) to some kind of -ism, that’s for sure.

But if it’s not totalitarian-ism, then everything is fine, right?

The historical context is relevant. One need only recall that the Church Committee didn’t focus just on the Nixon administration (which makes Schmitt’s reference to the “first term of Republican administrations” a bit out of place). And surely it is possible to draw different lessons from the history. Posner, for example, would point out that we survived the “abuses” of all modern presidents, and that, as the threats facing the country receded, the “abuses” did as well. Why, then, should we be concerned about policies and practices which are consistent with the actions taken by most recent presidents (FDR, etc. through Nixon)? It certainly seems as if these practices don’t automatically lead to totalitarianism—they certainly didn’t in the recent past. (Even Schmitt’s fantastical suggestion that the Bush administration monitored journalists isn’t unprecedented—the Church Committee revealed that the Kennedy WH had done the same.)

In 2001 Dick Cheney stepped down from the International Advisory Board of Oxford Analytica. From the press release:

“We are enormously grateful for the long-standing support of Dick Cheney who has been part of our International Advisory Board for many years. We wish him well as Vice-President of the United States” commented David Young, Chief Executive of Oxford Analytica.

He was facing jail because he was the original Plumber.
Wikipedia cut and paste:

The group was formed in an almost direct response to the release of The Pentagon Papers in the New York Times beginning June 13, 1971 … On July 1, David Young joined the White House and together with Egil Krogh penned a memorandum to Nixon advisors Haldeman and John Ehrlichman advocating the formation of a White House Special Investigations Unit. Haldeman and Ehrlichman agreed to the plan and obtained the approval of Nixon. Young was put in charge of the unit and reported to Krogh. The nickname Plumbers came to being when Young posted his name on his office door which read ‘David R. Young, Plumber’.

Firstly, lets be clear that I’m not suggesting Cheney has anything to apologize for in his association with Young after 1974. Young was no Howard Hunt, and if anything it’s encouraging to see that there are second acts in American lives, even if sometimes they have to happen in Europe.

What this does though is shed light on an unapologetic mindset. The script runs as follows: the men ruined by Watergate acted virtuously in the service of a strong executive; they were hounded out by an overmighty, politically motivated press; the regrettable result was the malaise of the Carter years; to restore American strength a capable executive needed to regain lost power from those hoarding it but unable to wield it. The source of Bush’s theories of executive authority lead back to Watergate, and to the sense of a wrong that needed to be righted. And it’s striking to see so many parallels with the Nixon years, from the superficial (a damaging New York Times story is countered by a furious denouncement of the sources and an aggressive leak investigation) to the central (Bush’s claims that the powers inherent in the Presidency mean, in effect, “when the president does it that means it is not illegal“).

So, when Mark Schmitt writes about people firebombing the Brookings Institution, he is not talking about a distant past utterly unconnected with the present. And people preparing to defend the current administration should pause, revisit recent history, and ask themselves which side of it they want to find themselves on in the future.