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?