David Bromwich| Wanted: a Constitutional Democrat

http://www.huffingtonpost.com/david-bromwich/wanted-a-constitutional-_b_59173.html


On Friday, by a vote of 60-28, the Senate passed the measure that President Bush had requested to enhance his powers of warrantless wiretapping. It is said that these new powers will not cover phone calls made within the United States; but the effect of the vote is certainly to remove a constitutional check. We now have the president's word that he will act with restraint.
Two small concessions were granted by the administration to the cooperative lawmaking body. First, in the revised legislation, the attorney general is no longer the sole official charged with oversight; Alberto Gonzales will share authority with the director of national intelligence, Mike McConnell. Second, the change in the law is not permanent but comes up for renewal in six months.
Such allowances hardly compare to what was extracted in return. The FISA court will be permitted to review the president's wiretaps only after the fact; and the court is restricted to a generic review of the warrants, with no power to inquire into individual cases. This latest understanding with the President (which will not be any easier to reverse six months from now than it was to oppose yesterday) was approved by sixteen Democrats to make the required majority of 60--among them Senators Bayh, Webb, and Feinstein. The unintimidated opposition was led by Russell Feingold.

By what force was the Democratic majority effectively split? The answer lies in part in the nature of President Bush's appeal to fear. He has frightened many people into believing that if America is ever hit by another attack, the blame should fall on every lawmaker who ever opposed his will on national security. The Cheney-Bush campaign of fear is relentless, but not entirely disingenuous. President Bush is frightened, and the public has seen it; Vice President Cheney is frightened, and his bunker shows it. Intimidation apart, a cynical prudence clearly drove some of the crossover votes. Many Democrats believe the party's best strategy is to run out the clock. Let the president have everything he wants between now and November 2008; watch politely, and show a seemly disappointment; and count the profits at election time. The same goes for the president's men, from Petraeus down to Gonzales: give them all they want for the next fifteen months and see where it lands us. That is one reason why impeachment has been taken "off the table."

Of course, impeachment was put into the Constitution partly as a remedy against the rashness and ambition of just such an administration as this; the shadow of impeachment, it was supposed, might curb the desperate attempts of bad men to shore up their power by fresh adventures. But here once more the Democratic calculation appears to be: the worse it gets, the better for us in the end.
In a recent talk with liberal journalists, Nancy Pelosi offered a second kind of prudential reservation: impeachment or censure, of either Cheney or Bush, would "divide the country." That is the same species of wisdom that prevailed with Al Gore when he withheld his support from the late petitions charging voter fraud in Florida in the election of 2000. He was choosing not to divide the country. The trouble is that Cheney and Bush are happy to divide the country. They mean to play their terrible hand to the end; and they do not take no for an answer. Compromise with them, and you are the one who is compromised. The statement by Dick Cheney in January 2007, about the impact of the election on his plans for the Middle East, showed the curious streak of frankness that marks his political character. "It won't stop us," he said.

Now, in a constitutional democracy, there are two ways of stopping the claims of a leader out of control. One is by an appeal to the voters; the other is by an appeal to the laws. The vice president (and, therefore, the president) having declared his independence of the people, it would seem that the best remaining protection is the laws. If, on the other hand, the opposition are unwilling to resort to the laws--if, from a combination of timidity and tactical reasoning, they refuse to defend their own function as lawmakers--for what purpose do they exist?