The (Ex) Washington Realist

An interesting debate today between Bruce Fein (principal, Litchfield Group) and David Rivkin (a partner at Baker, Hostetler and a contributing editor to TNI) over the question of the NSA "warrantless" surveillance program, its impact on the war on terror and the threat to civil liberties.

Is America turning into a police state? No, said Rivkin. He said the debate over the NSA program was part of a larger debate about presidential power and over the discretionary authority of the executive, and he rejected the notion that any action taken at the discretion of the executive branch, particularly to safeguard national security, without judicial approval somehow constitutes a danger to liberty. The U.S. judiciary is not a privy council, meant to evaluate policy, but this seems to be the direction some want to go down. He also criticized Congress for giving the executive broad latitude to act but then, for purposes of political cover, wanting to distance itself from having granting that authority.

Rivkin also drew a distinction between a maximalist view of privacy (with almost no intrusions permitted by the government being viewed as the linchpin of democracy) with what he saw as the more logical view, especially given how much private entities can collect a good deal of private, personal information, of recognizing that in modern society the focus should be one reasonable expectations of privacy.

Fein focused his concern on the rule of law, that presidential claims of authority to bypass existing laws and regulations--noting Congress does have the power to regulate all agencies of the government, not just the legislative branch--combined with excessive claims of the need for secrecy--so that actions and policies need not be disclosed or justified--erode the rule of law and create a situation the founders wanted to avoid--where the president essentially asks the country to "trust him" without effective oversight or checks. If laws like FISA needed to be amended, then the president could and should have made the case to Congress for alterations, not argued that he had the right to bypass them altogether.

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I walked away from the discussion with a further degree of anger at Congress. Rivkin and Fein, each in their own ways, pointed to a Congress that abdicated its responsibilities when it mattered and now plays political blame games. The checks and balances system can't work if one branch doesn't want to act as a check.