A fine madness

This hyperventilating column by Jacob Weisberg, called “The Power-Madness of King George,” is the latest to invoke the memory of King George III in connection with the NSA intercept program. According to Weisberg, the Bush administration’s legal position regarding FISA entails “an elective dictatorship, governed not by three counterpoised branches of government, but by a secretive, possibly benign, awesomely powerful king.”
But look more carefully at the claim the president is making that Weisberg fears will turn us into a dictatorship — it’s the claim that the authorization of force granted to the president by Congress after 9/11 permits the surveillance notwithstanding Congress’s previous pronouncments in FISA. Now that claim about what Congress did is either true or false. If it’s true, then the president hasn’t usurped any power; he’s just exercising power that Congress gave him. If it’s false, the Supreme Court has the opportunity to so rule. Only if the president does not adhere to that ruling would it be plausible to start complaining about abuse of power remotely comparable to that of a dictatorship. And since the president informed Congress what he was doing, it’s difficult to argue that he was trying to deny that body it right to challenge his asserted power if it saw fit to do so.
Weisberg sees “daffy monarchical overtones” in the Attorney General’s statement that the congressional authorization of force “places the president at the zenith of his powers” giving him “all that he possesses in his own right plus all that Congress can delegate.” But Weisberg must know that this language comes almost verbatim from Justice Jackson’s concurring opinion in the steel mill seizure case, which nearly everyone, liberal and conservative (although not John), regards as the starting point in any reasonable discussion of presidential power in this context.
We’re not in danger of becoming a dictatorship if the most sinister administration language Weisberg can try to scare us with comes from a Supreme Court opinion.


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