We can see the emerging Republican election strategy taking shape. It is not a new strategy. Although the Bush/Cheney/Rove White House is woefully ignorant of history, and that ignorance has resulted in our misadventure in Iraq, among other mistakes, the Bush/Cheney/Rove troika did learn one lesson from history. It is the lesson taught by Senator Joe McCarthy more than 50 years ago. Lies, character assassination, and scare tactics win elections. For a time during the early 1950s, Joe McCarthy was the most feared and powerful man in America. He achieved that status by accusing all who opposed him of being soft on communism. We should expect George Allen to adapt McCarthy+óGé¼Gäós tactic in his election battle with Jim Webb. Allen will mention court decisions like Judge Taylor+óGé¼Gäós decision in ACLU v. NSA, and then in the same breath he will accuse Jim Webb of being soft on terrorism, of not giving the government the +óGé¼+ôtools+óGé¼-¥ to fight terrorism, and therefore not to be trusted with the nation+óGé¼Gäós defense. How should Democrats respond to these specious arguments?
The first point to make is that no one is more concerned about the nation+óGé¼Gäós defense than Jim Webb. Unlike his opponent, Jim fought and bled for this country. He is a genuine war hero; he is the man who John Wayne played in the movies. He was awarded the Navy Cross, the Silver Star and two Purple Hearts. Allen has no similar experience or credentials. Allen never fought for this country, has never been under fire, never led men in combat. Furthermore, Jim served as an Assistant Secretary of Defense and as Secretary of the Navy. He has not only combat experience as a Marine in the Vietnam War, but he also has experience in high level positions shaping the nation+óGé¼Gäós defense policies. Allen has no comparable experience.
The second point to fire back with is a point that no one can deny, and a point that virtually everyone will agree with. The President is not above the law. As Judge Taylor wrote: +óGé¼+ôIt was never the intent of the Framers [of the Constitution] to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.+óGé¼-¥ Stated differently, the President has no inherent power. All presidential power is derived from the Constitution. +óGé¼+ôThere are no hereditary Kings in America and no powers not created by the Constitution. So all +óGé¼-£inherent powers+óGé¼Gäó must derive from that Constitution.+óGé¼-¥ ACLU v. NSA. Further, the President has no power to act in violation of statutes enacted by Congress, such as Foreign Intelligence Surveillance Act (+óGé¼+ôFISA+óGé¼-¥), 50 U.S. Code +é-º 1801, et seq. and Title III of the Omnibus Crime Control and Safe Streets Act (+óGé¼+ôTitle III+óGé¼-¥), 18 U.S. Code +é-º 2510, et seq. These are the laws that govern electronic surveillance. If the President disagrees with these laws, then he should ask Congress to change them.
And that leads to the third point, which I think is also unassailable. Congress makes the laws. Under the Constitution, +óGé¼+ôall legislative Powers herein granted shall be vested in a Congress of the United States.+óGé¼-¥ Art. I, +é-º 1. FISA and Title III are laws enacted by Congress. They are Congress+óGé¼Gäó effort to balance the needs of national security and law enforcement against the privacy rights of the people. +óGé¼+ôThe FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment.+óGé¼-¥ ACLU v. NSA. These words express a central and important point about the Constitutional balance of our government +óGé¼GÇ£ a point that is lost on President Bush and his ardent followers. If the government needs more +óGé¼+ôtools+óGé¼-¥ to fight terrorists, then it is the role of Congress to decide whether to provide the tools, what tools to provide, and how to provide them consistent with the Constitution. Under our Constitution, the President has no right to make those decisions unilaterally. Contrary to what Bush and his followers may think, the President is not descended from the sun god. He too must act within the Constitution.