Last week’s annual Conservative Political Action Conference signaled the transformation of American conservatism into brownshirtism. A former Justice Department official named Viet Dinh got a standing ovation when he told the CPAC audience that the rule of law mustn’t get in the way of President Bush protecting Americans from Osama bin Laden.
Former Republican congressman Bob Barr, who led the House impeachment of President Bill Clinton, reminded the CPAC audience that our first loyalty is to the US Constitution, not to a leader. The question, Barr said, is not one of disloyalty to Bush, but whether America "will remain a nation subject to, and governed by, the rule of law or the whim of men."
The CPAC audience answered that they preferred to be governed by Bush. According to Dana Milbanks, a member of the CPAC audience named Richard Sorcinelli loudly booed Barr, declaring: "I can’t believe I’m in a conservative hall listening to him say Bush is off course trying to defend the United States." A woman in the audience told Barr that the Constitution placed Bush above the law and above non-elected federal judges.
These statements gallop beyond the merely partisan. They express the sentiments of brownshirtism. Our leader ber alles.
Only a few years ago this same group saw Barr as a conservative hero for obtaining Clinton’s impeachment in the House. Obviously, CPAC’s praise for Barr did not derive from Barr’s stand on conservative principle that a president must be held accountable if he violates the law. In Clinton’s case Barr’s principles did not conflict with the blind emotions of the politically partisan conservatives demanding Clinton’s impeachment.
In opposing Bush’s illegal behavior, Barr is simply being consistent. But this time Barr’s principles are at odds with the emotions of the politically partisan CPAC audience. Rushing to the defense of Bush, the CPAC audience endorsed Viet Dinh’s Führer Principle over the rule of law.
Why do the media and the public allow partisan political hacks, like Viet Dinh, to define Bush’s illegal actions as a national security issue? The purpose of the Foreign Intelligence Surveillance Act is to protect national security. FISA creates a secret court to which the president can apply for a warrant even after he has initiated spying. Complying with the law in no way handicaps spying for national security purposes. The only spying handicapped by the warrant requirement is spying for illegitimate purposes, such as spying on political opponents.
There are only two reasons for Bush to refuse to obey the law. One is that he is guilty of illegitimate spying for which no warrant would be issued by the FISA court. The other is that he is using "national security" to create unconstitutional powers for the executive.
Civil libertarian Harvey Silverglate writing in the Boston Phoenix (Feb. 10-16) says that Bush’s grab for "sweeping, unchecked power in direct violation of a statute would open a Pandora’s box of imperial possibilities." In short, it makes the president a dictator.
For years the Republican Federalist Society has been agitating for concentrating more power in the executive. The members will say that they do not favor a dictator, just a check on the "imperial Congress" and "imperial judiciary." But they have not spelled out how the president can be higher than law and still be accountable, or, if he is only to be higher than some laws, but not other laws, and only in some circumstances, but not all circumstances, who draws the line through the law and defines the circumstances.
On February 13 the American Bar Association passed a resolution belatedly asking President Bush to stop violating the law. "We cannot allow the US Constitution and our rights to become a victim of terrorism," said bar association president Michael Grecco.
The siren call of "national security" is all the cover Bush needs to have the FISA law repealed, thus legally gaining the power to spy however he chooses, the protection of political opponents be damned. However, Bush and his Federalist Society Justice Department are not interested in having the law repealed. Their purpose has nothing to do with national security. The point on which the regime is insisting is that there are circumstances (undefined) in which the president does not have to obey laws. What those circumstances and laws are is for the regime to decide.
The Bush regime is asserting the Führer Principle, and Americans are buying it, even as Bush declares that America is at war in order to bring democracy to the Middle East.
Dr. Roberts [send him mail] is Chairman of the Institute for Political Economy and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal, former contributing editor for National Review, and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.