Dude, Where’s My Country?

Congress seems determined to dispense with our freedoms. And to think these are the folks who called Bush a fascist:

Steve Aquino at Mother Jones asks, “Should President Obama have the power to shut down domestic Internet traffic during a state of emergency? Senators John Rockefeller (D-W. Va.) and Olympia Snowe (R-Maine) think so.” I’ve highlighted what I think are the interesting passages in the article.

On Wednesday they introduced a bill to establish the Office of the National Cybersecurity Advisor–an arm of the executive branch that would have vast power to monitor and control Internet traffic to protect against threats to critical cyber infrastructure. That broad power is rattling some civil libertarians. The Cybersecurity Act of 2009 (PDF) gives the president the ability to “declare a cybersecurity emergency” and shut down or limit Internet traffic in any “critical” information network “in the interest of national security.” The bill does not define a critical information network or a cybersecurity emergency. That definition would be left to the president.

The bill does not only add to the power of the president. It also grants the Secretary of Commerce “access to all relevant data concerning [critical] networks without regard to any provision of law, regulation, rule, or policy restricting such access.” This means he or she can monitor or access any data on private or public networks without regard to privacy laws.

The Mother Jones article quotes a number of sources who argue that the proposed bill significantly undermines the Constitution and makes a mockery of existing privacy laws. But I think the main problem with the proposed legislation is that the operational justification for it has not been made. There are two parts to this proposal. The first is the ability to shut down the network in whole or in part due to a “cybersecurity emergency” and the second is the implied power to wiretap without a warrant in certain circumstances, where such circumstances are defined by the President.

I’m rapidly losing count of the number of mornings when I wake up and wonder if I’ve been teleported to the EU.

I am not necessarily opposed to the vigorous exertion of Executive power in a national emergency. When President Bush was in office I argued – repeatedly – that the NSA wiretapping program and SWIFT terrorist tracking program were not only not violative of the 4th Amendment, but were prudent exercises of the president’s Article II authority. People seem to forget that we have three distinct branches of government, each with a different role to play in governing this nation. Clarence Thomas, the most reliably conservative justice on the Supreme Court, spoke compellingly on proper deference to the Executive branch in his dissent to Hamdan v. Rumsfeld:

As I explained in Hamdi v. Rumsfeld, the structural advantages attendant to the Executive Branch–namely, the decisiveness, ” ‘activity, secrecy, and dispatch’ ” that flow from the Executive’s ” ‘unity,’ (quoting The Federalist No. 70, p. 472) —led the Founders to conclude that the “President ha[s] primary responsibility–along with the necessary power–to protect the national security and to conduct the Nation’s foreign relations.” Consistent with this conclusion, the Constitution vests in the President “[t]he executive Power,” (Art. II, :§1), provides that he “shall be Commander in Chief” of the Armed Forces, (:§2), and places in him the power to recognize foreign governments, (:§3). This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation’s security in the manner he deems fit.

… In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’

Having argued that George Bush possessed the authority to take necessary steps to protect national security for the past 8 years, I can hardly double back on that position now. In any event, I wouldn’t even if I could; not being a huge fan of the Kerr Effect:

Orin Kerr proved hilariously right in comments section of NYT article. If there is anything more delicious than watching a passel of Manhattan libs suddenly morph into staunch strict constructionists, I’m not sure what that might be.

The word for the day, boys and girls, is “unreasonable”. As in “unreasonable search and seizure”.

It’s true that I don’t trust Barack Obama farther than I can throw him, but he was duly elected President of the United States and to contend that our personal likes and dislikes should be dispositive in the exercise of Executive power is a fool’s errand. What bothers me most about this story is that this isn’t the President claiming he has the right to do his job should a national emergency arise. It’s Congress, blithely legislating away our Constitutional rights.

The remedy for intolerable exercise of Executive power is written right into the Constitution: impeachment. In the mean time, Congress has no business providing advance cover for a phenomenon which makes us all acutely uncomfortable (the undeniable truth that in times of national emergency, Presidents can and do “stretch” the Constitution a bit).

As Richard Fernandez so succintly put it,

This has the potential for abuse written all over it. Democrats should ask themselves whether they want any future President to have this power. Because the political system may live to regret passing an act with such blanket authority. Maybe not today, or tomorrow, but as Rick Blaine once said, “soon and for the rest of your life.”

What I want to know is, where are all the patriots who assiduously maintained – evidence to the contrary notwithstanding – that Barney the White House terrier had shredded the 1st and 4th Amendments and turned America into a police state? We haven’t been attacked since 2001. In a state of emergency, I don’t want the President of the United States to stop and justify his decisions. If we’re attacked, I don’t care whether the President is a Democrat or a Republican: I want him to act to protect our security first. He can worry about explaining it all to us when the emergency is over.

But I’ll be damned if I want Congress waving away our Constitutional rights and granting the President blanket authority in advance. That way lies madness.

This administration seems hell bent on protecting us from all the wrong things, but unless we plan on devolving into a Banana republic, the rule of law is all we have. Both sides need to start respecting it.

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