But Why in Secret?

Dahlia Lithwick has an excellent article over at Slate on the President's motivations for secretly creating the NSA domestic surveillance program. To here there are two possible explanations; either President Bush thinks the system of checks in balances in place is inconvenient, or he think it's broken and cannot be fixed. Lithwick thinks the latter is worse:

The former argument was offered this week by Attorney General Alberto Gonzales, who defended the secret spy program with the astonishing claim that Congress wasn't told because Congress would not have passed it. Gonzales said the administration considered asking Congress to authorize the program but was "advised that that was not something we could likely get." (This, even though Congress just about sold off the farm after 9/11, granting the president every extra power he requested.) That just can't be right. And it isn't. As Chief Justice John Roberts explained so eloquently at his recent confirmation hearings, the Youngstown case, decided by the Supreme Court in 1952, stipulated that "where the president is acting contrary to congressional authority … the president's authority is at its lowest ebb." The courts have expressly said that if Congress wouldn't sign off on the deal, executive-branch authority is lesser, not greater.

The other argument for consistently reneging on bargains about civil liberties was put forth by President Bush this week when he insisted that we are facing a "new threat requiring us to think and act differently." The existing laws that govern his conduct are helping the terrorists and hurting us. Bush's admission—that he authorized a program four years ago that is secretly monitored and reauthorized by himself—is astonishing. His admission that he intends to continue to do so masks a darker truth: He believes that FISA can't be fixed. Like the judicial system for Americans or the courts-martial system for prisoners of war, FISA can't be modified to protect us; it must be overridden by fiat and in secret.

She then surveys the list of defenses Bush apologists have offered for this program; he has inherent authority to do so, he was given the authority to do so by the Authorization to Use Military Force against Afghanistan, the FISA system is too restrictive and burdensome, there's no proof anyone's constitutional rights have been violated, the power is necessary to fight terrorism, etc., etc., etc. But none of these begin to explain why Bush felt the need to do all of this in secret, without the public's knowledge, without any oversight:

Americans believed they were bargaining in good faith with their government over the original deal struck in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. FISA was supposed to represent a compromise between security and civil liberties, by making it illegal to spy on Americans without judicial oversight but setting the bar for such oversight quite low. Even as amended by the Patriot Act—which further lowered the standards for a FISA warrant—the statute still purported to adhere to the fundamental bargain: Americans would not be spied upon by their government without basic constitutional checks in place.

And that is exactly the problem. With this system, Bush has indicated his contempt for the rule of law, his contempt for the American people, and his contempt for the Constitution. The first in that FISA states what authority he does and does not have to exercise surveillance over American citizens in America. The second in that he felt no need to have a public discussion of any kind over this issue, fearing the public's reaction (and rightly so.) To me it is simply incredible that Attorney General Alberto Gonzalez seriously believes he can claim in public that they did not go to Congress with their proposal, because they knew they would not get approval. If they knew that, then it's because they knew what the public would think of the program. The third in that he as best dismissive of the oversight functions of Congress and the the Judiciary, and believes that in wartime his powers are essentially unlimited. A man who felt as such should never have been elected President of our great country in the first place. It is in our best interests to see him go, and the earlier the better.