What Can't Bush Do?

Over at Intel Dump, J. D. Henderson is doing very good analysis of the warrantless wiretapping issue. He's careful to make the distinction between wiretapping the bad guys (which he's for) and warrantless wiretapping (which he's against, partly because nobody's verifying that the targets really are bad guys). And he actually read the administration's 42-page justification of warrantless wiretapping.

Intel Dump draws a fairly intelligent crowd, so the comments and trackbacks are worth looking at too, just to see how well-informed Bush supporters try to defend him. (As opposed to the usual terrorists-will-kill-us-all defense.)

But there's one question that the Bush defenders just won't answer. Responding to the Bush-defending comments Cranky Observer asked:

Would the people who hold this view please give me 3 examples of things the President cannot do under this authority? Specifically, can the President (1) issue Bills of Attainder (2) wiretap, harass, jail, and/or torture (a) his political opponents (e.g. the Kerry Campaign) (b) his critics?

If not, why not?

No takers. He repeated the question further down the thread. No takers. I chimed in with:

I'm still waiting for an answer to Cranky Observer's question.

Nada.

This tells me it's a pretty good question. I think we should throw it into any discussion we can. Under the administration's interpretation of the Constitution, what can't Bush do?

As I see it, the Constitution was written to balance two purposes: First, the Founders wanted to create a government strong enough to pursue the common good effectively. But second, they wanted to restrain that government from turning into a tyranny.

As students of history, they knew that democracy by itself doesn't provide enough protection against tyranny. Most of the time the voters try to elect trustworthy leaders, but sooner or later a popular demagogue comes along and sweeps democracy into the trash. (Hitler and the Weimar Republic provide a more contemporary example.)

That's why they constructed (in John Adams' words) "a government of laws and not of men". The system is supposed to have enough checks and balances to survive the occasional unscrupulous president. (Everyone recognizes the existence of unscrupulous presidents, even if we disagree about which ones they were/are.)

The big problem with Bush's interpretation of the president's "inherent power" as commander-in-chief is that it dismantles these checks and balances. In wartime -- and given the vagueness of the War on Terror it's going to be wartime from now on -- the President can ignore any law that he determines infringes on his war-making ability.

So what can't he do? How does this re-interpreted Constitution fulfill the Founders' intention to protect us against tyranny? And don't tell me that you trust President Bush -- that's a government of men, not of laws.

We need to keep coming back to this question, because I don't think they have an answer. Keep asking it. Again. Again. And again.

Doug Muder
27 January 2006
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