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A Fundamental Question

In his confirmation hearings this week (transcript here), Attorney General nominee Michael Mukasey was asked the following:

Senator Patrick Leahy (D-VT): [W]here Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?

Michael Mukasey: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

This one single question-and-answer is of monumental importance. It's a fundamental question for our country -- perhaps the single most important question raised by the actions of the Bush administration.

What Mukasey is saying is, in essence, if the President does something in order to defend the country, it's not illegal. This is the position of the Bush Administration and many of its supporters. What they're saying is, as I understand it, "War threatens the the nation. The president's most solemn obligation is to preserve the safety and security of the nation. This obligation overrides any and all other considerations."

I see it differently. I like to think I'm in good company. In Thoughts on Government, John Adams wrote:

[T]here is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is 'an empire of laws, and not of men.'
It seems to me that what Bush supporters are saying is, in effect, "Yes, of course we should be an empire of laws and not of men. But war threatens the existence of our nation. No president would say, 'I'm allowing the nation to fall because I'm required to obey a certain law.' So we must give the president the ability to do whatever is needed to defend our nation, even if it breaks a law."

The important thing to note here is that Adams wrote those words above in 1776, just months before signing the Declaration of Independence. He and his fellow signers were about to commit what the British government viewed as an act of treason, punishable by death. They were about to found a country that was certainly going to have to fight for its very survival (which it did). He would have been far more within his rights than are we today to claim some sort of executive privilege in time of war. And yet he didn't. He plainly said -- in the face of war -- that if our country was to be a republic, it had to be "an empire of laws, and not of men".

So that one answer from Mukasey is fundamental to the question of what kind of nation we want to be. We need to have this debate as a country, hopefully over the course of the current election campaign. I truly hope the answer is that we do want to be an empire of laws at all times -- not just when it's convenient or safe for us.

(An op-ed in The New York Times has a similar but better-informed take on this issue.)


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