Our Constitution establishes the rule of law. Yet there is no denying that necessities will sometimes overtake us. If a system of balanced powers attempts to incorporate all necessity into law it will surely fail. It may subvert what it aims to preserve. It is therefore absurd to imagine that the President will never go beyond the law. This paradox -- how to contain lawless power within the law -- runs to the depths of the American constitutional system.
Cicero's famous maxim salus populi suprema lex esto -- the safety of the people is the supreme law -- is no answer. More than a stretched metaphor, this doctrine is false. We must always defend the public good, but law and necessity are opposites. Law is the product of human Will, necessity is the enemy of our liberty. The two must never be equated.
In fact, when George W. Bush called us to a `war on terror,' he submitted America to the rule of iron necessity and made himself its agent. He pushed the question of law -- as essential as it may be -- into the background. Since the secret program of domestic surveillance by the NSA was exposed, however, the President has urgently and often repeated two claims: the spying is necessary and it is legal. This double-edged proposition leads us astray. George W. Bush seeks to hide his actions behind the undecidable and suffocating paradox of Presidential power.
The earliest records of Congress show that our Founders had this paradox clearly in mind. They were also nearly unanimous in recognizing the best way to live through it. Only a fool or a dangerous man, they believed, would try to stretch the law to encompass the necessary. A righteous President will respond to crisis with whatever means are available. On these rare occasions he might be expected to break the law to save the nation.
This bad solution is the best one. But it is only tolerable if the political process continues swiftly after the crisis has peaked, and does not accede to continuing menace. The Constitution must transcend events and actors of the moment.
What comes next makes the difference between democracy and dictatorship. Only that next step can de facto set a firmer limit on the use of power beyond law. This is something law by itself cannot accomplish.
The Founders were perspicacious where we are myopic. They insisted that a President who acts from necessity beyond law must in short order show his cards. Entrusted with great power he must accept the risks that come with it. Personal risk should always be a factor in the actions of the powerful. This will not inhibit leaders from stepping forward. No person of character -- which is to say, no one fit to be the American President -- will thereby fail to do what is necessary for the safety of the country. Indeed, risk informs and steadies the judgment of capable leaders.
The risk to the President is that his use of power -- his judgment that everything in some terrible moment requires him to transgress the law -- will be judged and found wanting. For the rule of law means that no man is a judge in his own case. Every power must be accountable, every power checked. The only alternative is despotism.
That is why the President, out of respect, indeed love, for the Constitution, must prove in times of crisis that he has no will to be a despot. He must take the initiative. High stakes leave no room for ambiguity and quibbling. Pure necessity is the only language we may accept beyond law. Adopt it and no other. Go before the deliberative body of the People. Name the act, explain it, lay bare the precise circumstance and motive. If the necessity was authentic, and the President's reasoning right, he will be absolved from momentary transgression. An act of Congress may indemnify him. An act of Congress may even raise him as a hero. Then let the next election, and beyond it history, decide if the judgment will stand. Let all the branches of government take their real share of approbation or blame, of glory or shame.
For George W. Bush to claim the cover of law now, after all that has transpired since September 11, is to obscure the overriding question: How shall we, as a nation, live with the paradox of presidential power? This is a political question.
Opponents of the secret domestic surveillance program have fallen into the trap set by this President's mixed message. They argue about right instead of power. They stand by, even nourish with the President, the sources of an unchecked power Jefferson so aptly called "monocratic."
Mr. President, the Founders also knew that the Constitution presupposes a specifically political and democratic kind of virtue. It cries out for a rejection of this false discourse and a settling of accounts. "Lawyering up" corrupts your true case. Claim on your own behalf that the Constitution grants you no authority to infringe our rights but does offer the President the privilege to seek enhanced powers with the agreement of the other branches of government. This is the true meaning of the Supreme Court's decision in Youngstown Sheet & Tube, which slapped down President Truman for usurping the power of Congress without their complicity.
Mr. President, you say you have told us what you can. But you demean the law by using it as a screen to cover the necessity you exalt but do not specify. Dare instead to proudly declare your best reasons for tracking down your fellow citizens like conspirators or `enemy combatants.' Let the People judge if you were right to overstep the law. Suffer the consequences if you were wrong.
Written from Princeton, N.J., January 20, 2006
