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September 10, 2006

9/11, NSA, Executive Power, and Separation of Powers

There's an interesting piece on Reason.com by Jacob Sullum analyzing the larger separation of powers interests at stake in Judge Taylor's ruling that the NSA's surveillance program was unconstitutional. It's dated for publication on 9/11. What he didn't mention, and that I'll add because it truly is poignant, is Orwell's observations in 1984 about the perpetual state of war being used to justify power and fear:

'And remember that it is for ever. The face will always be there to be stamped upon. The heretic, the enemy of society, will always be there, so that he can be defeated and humiliated over again. Everything that you have undergone since you have been in our hands -- all that will continue, and worse. The espionage, the betrayals, the arrests, the tortures, the executions, the disappearances will never cease. It will be a world of terror as much as a world of triumph. The more the Party is powerful, the less it will be tolerant: the weaker the opposition, the tighter the despotism. Goldstein and his heresies will live for ever. Every day, at every moment, they will be defeated, discredited, ridiculed, spat upon and yet they will always survive. This drama that I have played out with you during seven years will be played out over and over again generation after generation, always in subtler forms. Always we shall have the heretic here at our mercy, screaming with pain, broken up, contemptible -- and in the end utterly penitent, saved from himself, crawling to our feet of his own accord. That is the world that we are preparing, Winston. A world of victory after victory, triumph after triumph after triumph: an endless pressing, pressing, pressing upon the nerve of power. You are beginning, I can see, to realize what that world will be like. But in the end you will do more than understand it. You will accept it, welcome it, become part of it.'


Everything -- including not doing enough to fight terrorism and giving unbridled power to one branch of our government -- has its risks. If you haven't read 1984 recently, you really ought to. I went back and re-read it, and the man was prescient. (Animal Farm, too, has more meaning nowadays than perhaps when it was written)

We all obviously recognize that we don't live in a pre-9/11 world where death and destruction did not come to our shores, but what divides us post 9/11, perhaps ironically enough, is our disagreement on what it means to live in America in a post 9/11 world. Many think things now require giving more power, less checked, to the executive, while others feel this is out of balance with our constitution and checks-and-balances form of government. Both sides have legitimate views.

It will be interesting to see how the Supreme Court ultimately resolves these issues of statutory interpretation and constitutional law over the next few years. I don't know the answers, but I do know that the issues at stake have long-term implications for the country, and so deserve thoughtful, respectful, debate.

There will be no column on September 11, 2006. I remember watching the news after the first plane had struck, and seeing the second one come in and strike the other tower. I'm not sure that act of moronic hatred means that our safety is at risk as much as some portray it is, but that one day certainly shook us deeply. I want us to win -- but I want US to win, not some country that has unneccessarily less freedom, openness, and democracy in common with what we were before 9/11.

September 10, 2006 in Current Affairs | Permalink

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