If Men Were Angels...

Writing in Federalist 51, James Madison asserted

In framing a government which is to be administered by me over men, the great difficulty lies in ... enabl[ing] the government to control the governed ... and in ... oblig[ing] it to control itself.

The Madisonian Model's separation of powers and checks and balances (from chapter 2) and federalism (chapter 3) make up what James Madison called "a double security" for our rights:

"The different governments will control each other at the same time that each will be controlled by itself."

Madison's claim that institutions of government will control each other (checks and balances) is called into question by some behavior of congress and the executive recently. For instance, the New York Times reported on 1/26/06 that White House Declines to Provide Storm Papers. Congressional oversight cannot work without some cooperation from the executive.

Also, consider the implications of the Bush Administrations' arguments that Congress has no authority to check the power of the executive in Wartime, in his role as commander-in-chief -- that domestic spying is perfectly acceptable, despite stong legal evidence it violates the Foreign Intelligence Surveillance Act of 1978, and despite evidence that the Bush Administration has not briefed Congress as required by law:

Congressional Agency Questions Legality of Wiretaps

By Dan Eggen
Washington Post Staff Writer
Thursday, January 19, 2006; A05

The Bush administration appears to have violated the National Security Act by limiting its briefings about a warrantless domestic eavesdropping program to congressional leaders, according to a memo from Congress's research arm released yesterday.

The Congressional Research Service opinion said that the amended 1947 law requires President Bush to keep all members of the House and Senate intelligence committees "fully and currently informed" of such intelligence activities as the domestic surveillance effort.

So What?

The Bush Administration makes a couple claims. One claim is they have the authority to conduct the spying under the 9/18/01 Congressional Authorization of Use of Force. The other is that they do not need any such authority.

As the previous post suggested, this is in part a struggle for what ideas you will accept: is the president acting appropriately? In your best interest?

According to Madison in Federalist 51,

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls would be necessary."

Finally: the End of Chapter two presents several ways we might change the Constitution -- amending, judicial review, and .... what else? How does this ongoing news story play into changing the Constitution?

Legitimacy and Presidential Power / Presidential Action

In chapter one, we saw a discussion of the tradeoffs of liberty and order, or security.

That tradeoff is illustrated in poll results presented in Friday, 1/27 New York Times.
New Poll Finds Mixed Support for Wiretaps

Americans are willing to tolerate eavesdropping without warrants to fight terrorism, but are concerned that the aggressive antiterrorism programs championed by the Bush administration are encroaching on civil liberties, according to the latest New York Times/CBS News poll.

In a sign that public opinion about the trade-offs between national security and individual rights is nuanced and remains highly unresolved, responses to questions about the administration's eavesdropping program varied significantly depending on how the questions were worded, underlining the importance of the effort by the White House this week to define the issue on its terms.

We will do more with polling and wording of polls in chapter 6. One concept that applies is Framing. The following is from Wikipedia:

Framing (communication theory)
...

framing is a process of selective control over media content or public communication. Framing defines how a certain piece of media content or rhetoric is packaged so as to allow certain desirable interpretations and rule out others.

The New York Times's story is clear that there is a political ("social conflict") struggle over how to get Americans to think about this: terrorist survellance, or domestic spying?:

The results suggest that Americans' view of the program depends in large part on whether they perceive it as a bulwark in the fight against terrorism, as Mr. Bush has sought to cast it, or as an unnecessary and unwarranted infringement on civil liberties, as critics have said.

Presidential Power, Constitutional Limits

Knight Ridder published an accessible article on the constitutionality of domestic spying ordered by the president.

WASHINGTON - The dispute over President Bush's domestic spying program hinges on the same tough question that vexed the nation's founders: How much power does a president have?

Bush and his legal advisers argue that the Constitution and federal law give him the right to authorize domestic eavesdropping without a warrant from a court or specific approval from Congress. The electronic surveillance, conducted by the super-secret National Security Agency, is aimed at communications between the United States and suspected terrorists overseas.

Bush's critics, citing the same legal sources, charge that he exceeded his legal and constitutional authority and could be impeached for breaking the law.

Here's a look at the legal underpinnings of the controversy:

Click on through to read the article, and to find links to other sources.

Follow Ups to Monday

1) In the discusssion of "How do you build legitimacy?" during the 8:30 class I noted a poll showing more Americans would care to have a beer with George Bush than with John Kerry. Sadly, I have been unable to find a link to it, although The Onion did a nice spoof in November 2005:

Long-Awaited Beer With Bush Really Awkward, Voter Reports

November 16, 2005 | Issue 41•46

WARREN, PA—Although respondents to a Pew poll taken prior to the 2004 presidential election characterized Bush as "the candidate they'd most like to sit down and have a beer with," Chris Reinard lived the hypothetical scenario Sunday afternoon, and characterized it as "really uncomfortable and awkward."

In class I mentioned the importance of appearance, because there are many reports of how Mr. Bush can be rather unpleasant to be around. One example is from Newsweek coverage of Katrina, and the whole paragraph is worth quoting because of the consequences of having leaders with such character:

But it is not clear what President Bush does read or watch, aside from the occasional biography and an hour or two of ESPN here and there. Bush can be petulant about dissent; he equates disagreement with disloyalty. After five years in office, he is surrounded largely by people who agree with him. Bush can ask tough questions, but it's mostly a one-way street. Most presidents keep a devil's advocate around. Lyndon Johnson had George Ball on Vietnam; President Ronald Reagan and Bush's father, George H.W. Bush, grudgingly listened to the arguments of Budget Director Richard Darman, who told them what they didn't wish to hear: that they would have to raise taxes. When Hurricane Katrina struck, it appears there was no one to tell President Bush the plain truth: that the state and local governments had been overwhelmed, that the Federal Emergency Management Agency (FEMA) was not up to the job and that the military, the only institution with the resources to cope, couldn't act without a declaration from the president overriding all other authority.

2) Monday's NY TImes fronted a story on Gas and Oil Royalties, and the lax regulation by the Bush Administration. As we see in chapter 1, that should not be surprising: Conservatives favor less economic regulation. And I made the comment that stories have been published about reduction in regulations, and enforcement of regulations, in mining. Here are two examples:

a)

Friends in the White House Come to Coal's Aid
By CHRISTOPHER DREW and RICHARD A. OPPEL Jr.

WASHINGTON - In 1997, as a top executive of a Utah mining company, David Lauriski proposed a measure that could allow some operators to let coal-dust levels rise substantially in mines. The plan went nowhere in the government.

Last year, it found enthusiastic backing from one government official - Mr. Lauriski himself. Now head of the Mine Safety and Health Administration, he revived the proposal despite objections by union officials and health experts that it could put miners at greater risk of black-lung disease.

The reintroduction of the coal dust measure came after the federal agency had abandoned a series of Clinton-era safety proposals favored by coal miners while embracing others favored by mine owners.

The agency's effort to rewrite coal regulations is part of a broader push by the Bush administration to help an industry that had been out of favor in Washington. As a candidate four years ago, Mr. Bush promised to expand energy supplies, in part by reviving coal's fortunes, particularly in Appalachia, where coal regions will also help decide how swing states like West Virginia, Pennsylvania and Ohio vote this year.

B) After the Sago Mine deaths, USA Today carried an article that suggests there is enforcement of regulations, its just not very meaningful:

Mine had hundreds of violations
By Alan Levin, Thomas Frank and Paul Overberg, USA TODAY
The West Virginia coal mine where an underground explosion left 12 miners dead and another with serious injuries had been cited for hundreds of federal safety violations since it opened in 1999, government records show.

Social Conflict: Do politicians solve it, or create it

Definitions of both politics and government can be related to social conflict. And we note that political scientists assume we will always have social conflict. Optimistically, we think that politicians might use government to solve social conflict? Might politicians also be interests in creating social conflict?

Consider a speech Karl Rove, chief advisor to President Bush gave on Friday, 1.20.06. As reported in Saturday's New York Times:

Mr. Rove's speeches this early in an election year have proved to be accurate predictors of what Republican candidates would say in the fall, and thus every seat in the ballroom at a downtown Washington hotel was filled. He lacerated Democrats for what he described their "cut and run" policy on Iraq, for blocking a renewal of the broad antiterrorism law known as the USA Patriot Act, and for challenging the legality of the administration's widespread use of warrantless wiretaps in the face of widespread criticism.

...

"The United States faces a ruthless enemy, and we need a commander in chief and a Congress who understand the nature of the threat and the gravity of the moment America finds itself in," Mr. Rove said. "President Bush and the Republican Party do. Unfortunately, the same cannot be said for many Democrats."

Might on consider this merely "drawing contrasts" between the two parties? The problem with that explanation is found in the paragraph that came between these two in the original story:

Mr. Rove made no mention of Republican opposition to both the Patriot Act and the surveillance program, which has posed a political problem for this White House, while he laid out his case against the Democrats, speaking rapidly.

That is, the "contrast" between Democrats and Republicans is not nearly as great as his speech suggests.

And I wager that we will hear Mr. Bush or Mr. Rove in the next months condemn those who "play politics with national security."

Authority and Legitimacy

In our first chapter, Bardes, Shelley and Schmidt discuss authority and legitimacy. We can readily find these these concepts in contemporary news stories. Here is one example from Thursday's New York Times:

Administration Lays Out Legal Case for Wiretapping Program
By ERIC LICHTBLAU
WASHINGTON, Jan. 19 - The Bush administration today offered its fullest defense of the National Security Agency's domestic eavesdropping program, saying that congressional authorization to defeat Al Qaeda after the Sept. 11 attacks "places the president at the zenith of his powers in authorizing the N.S.A. activities."

In a 42-page white paper, the Justice Department expanded on its past arguments in laying out the legal rationale for why the N.S.A. program does not violate federal wiretap law and why the president is the nation's "sole organ" for foreign affairs.

The defense comes at a critical time in the administration's effort to quell the growing political uproar over the N.S.A. program. House Democrats will be holding their first hearing Friday on the legality of the program, and the Senate Judiciary Committee has scheduled another hearing in two weeks. A number of legal analysts, meanwhile, including those at the nonpartisan Congressional Research Service, have questioned the legality of the program in strong terms.

The Justice Department's need to write a white paper, the statement that "The defense comes at a critical time ... to quell the growing political uproar..."

Relating those passages to the text would be the basis for a paper.