The Duck of Minerva

The Duck Quacks at Twilight

States of exception (part II)

December 18, 2005

More outrage from conservatives and liberals alike. Tony Arend rounds out some of the legal issues. It becomes more clear by the hour that Bush’s actions were illegal, despite the spinning (and weaving, and dodging) of his defenders (hit tip: LGM).

The current line of counterattack is twofold. First, impugn the integrity of the New York Times (not the most difficult task these days). Second, call the people who are leaking information about our out-of-control Executive branch treasonous swine.

The second is meritless on its face. The larger fact is, however, that the “attack the messenger” strategy is just a smokescreen. It really doesn’t matter one whit if the intentions of those who leaked and reported this story were honorable or not; what matters is that the pattern of Executive misconduct – and disregard for domestic and international law – gets worse and worse as each new revelation emerges.

From yesterday’s Reuters’ wire story:

He insisted his role as commander-in-chief gave him the authority to allow the surveillance. He said the program was constitutional, was reviewed by legal authorities and that leaders in Congress were aware of it.

Democratic Sen. Russ Feingold (news, bio, voting record) of Wisconsin said he was shocked by the program and disagreed with Bush on its legality.

“The president believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works,” Feingold said. “He is a president, not a king.

Knight Ridder quotes Carl Tobias, a law Professor at the University of Richmond:

I don’t understand why the law wasn’t used… Congress has clearly provided for what was going on. It seems to be that that procedure should have been followed. It’s important not to view that activity in a vacuum… There are a whole number of actions that the president has taken premised on unilateral executive authority that many observers find problematic.” [from the print edition of the Columbus Dispatch]

We live in an era where shopping is a patriotic duty, but revealing gross violations of the rule of law is treason. Anyone else see anything wrong with this picture?

[edited and updated since initial posting]

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Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.