It is a shibboleth of the Right that anyone more liberal than Rush Limbaugh is a "traitor" to his country; the egregious Ann Coulter even wrote an entire book about liberal "Treason." The shrill rhetoric and exaggerated alarums over the bogeymen of the Left betray a deep-seated unease about American democracy, however. Modern American democracy is committed above all to the orderly transfer of power through stable institutions designed to express the will of the People. Secondarily, American democracy is committed to the proposition, familiar to every student who ever dipped into the Federalist Papers, that no one locus of power is ever to be trusted completely. A government of limited powers can best be preserved by encouraging each of the three branches of government to jealously guard its prerogatives and ensure that no other branch overstepped its authority.
In contrast, modern American conservatism, as repeatedly expressed in the eras of Nixon, Reagan, and Bush the Younger, is infatuated with the cult of the man on the white horse, the strong central executive who will put all to rights because he is not bound by the petty considerations of law or morals that bind lesser mortals. (See Bombing of Cambodia, Watergate, Iran-Contra, War on Terror.) The Party panders in the pursuit of power to the racaille of the American South, who have historically been the pillar of slavery, segregation, States Rights, Jim Crow, and the Southern Strategy and who now form the electoral core of the rump of the party of Lincoln, (Teddy) Roosevelt, Eisenhower, and Rockefeller, but the Republican Party does not fundamentally believe in fulfilling the will of the people. Rather, theirs is the paternalism of the plantation owner and the corporate executive, the "Quality" who will ensure that the teeming swarthy masses do not threaten white privilege in America, endowed upon the white man by grace of God, the gun, and the smallpox. The alternative would be to recognize equality and welcome participation in the political process by all Americans. (Anyone who doubts the overtly exclusionary tendency of the contemporary, conservative American South need only review the disproportionately anti-Obama vote of white southerners compared to the overall vote in their own states and to whites in other parts of the country, or anecdotally the interview footage of white Southerners in Kentucky before the election.)
The first two chapters of Benjamin Wittes' Law and the Long War starkly illustrate this modern tendency in the modern politics of the Republican Party. Proceeding under a theory of the "unitary executive," the Bush Administration sought to consolidate the emergency powers it had assumed immediately after the crisis of 9/11 on a permanent "wartime" basis. In his first chapter, "The Law of September 10," Wittes seeks to show not only that there was some continuity between the anti-terrorism efforts of the Clinton and Bush Administrations, but also that there were some theoretical precedents dating from World War II (or earlier) for the Bush Administration's insistence that the Geneva Conventions did not apply to Al Qaeda and the Taliban and that it needed no authorization from Congress to regulate its treatment of those captured in the wake of 9/11. In particular, Wittes points out that Guantanamo had been used prior to 9/11 for the indefinite preventive detention of HIV positive illegal immigrants, and that the Clinton administration had pioneered on a limited scale the practice of extraordinary rendition, or "outsourced torture," that later became a staple of the Bush Administration's "War on Terror." Wittes concedes that the Bush Administration was totally lacking in legal justification for its actions in only one area: its decision to disregard the jurisdiction of the FISA Court over the conduct of electronic surveillance.
Wittes explains the readiness of the Bush Administration to disregard legal and moral norms in pursuit of the so-called "War on Terror" precisely in terms of the Bush Administration's public insistence on casting the conflict almost entirely in wartime terms and its concomitant contempt for any argument that legal guidance or Congressional authority was relevant to prosecuting the conflict.
While Wittes' attempts to show legal continuity and at least theoretical justification for the Bush Administration's disregard of legal and moral norms in its prosecution of the so-called "War on Terror" seem a little strained, he is quite persuasive on the legislative and political dynamics that guided the Administration's actions. Wittes' formulation has almost the ring of a Greek tragedy. Persuaded in their hubris that any request for legislative authorization from the Congress would diminish the inherent power of the "unitary executive," the (Vice) President's men, particularly David Addington, strongly resisted any suggestion that they ask the Congress for legislation to regulate the custody of terror suspects and adjudication of their cases. Wittes identifies three important consequences of the Administration's arrogance. First, they failed to recognize that whatever small quantum of executive authority might be lost to the Congress, the authority of the executive is vastly magnified when bolstered by statute, as Justice Jackson long ago pointed out. Second, they failed to recognize that the supine Congress — Republican or Democrat — was ready to give them anything they requested. Third, they underestimated the willingness of the Supreme Court to step in and fill the vacuum left when the Administration bypassed the Congress, resulting in a series of highly embarrassing Supreme Court decisions that in fact undermined executive prerogative and enhanced the reach of the Court.
In Wittes' view, the normal dynamic of American democracy should be that the President proposes, the Congress legislates, the President executes, and the Courts, if necessary, adjudicate. The Bush Administration turned this dynamic on its head. The President, recognizing no limit on his authority, was brought up short by the Court, and then sought to control the damage by seeking legislation from the Congress to limit or overturn the Court's rulings. Such a course of action is not only woefully inefficient, but it drastically undermines the Administration's moral authority for any action it might take, particularly when the rebuke comes from a notoriously conservative Supreme Court. It is one thing to take action with the full endorsement of the nation's deliberative and legislative bodies; it is quite another to suffer public rebuke from the nation's highest court and then to be seen frantically manipulating a rubber-stamp Congress in order to proceed with a course of action that has been roundly condemned. Moreover, proceeding in such a manner is a course of action that, once the immediate fires had been extinguished, could only be undertaken by men with a fundamental contempt for representative democracy and a complete lack of concern for the damage they might do to our institutions and our freedom.
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