Domestic Spying: The Issue is the Imperial Presidency

The real issue (and for foreign policy as well, not just concerning domestic spying) is not the question of rogue behavior by intelligence agencies so much as the intent of the Imperial Presidency.


As the new year begins, Americans learn that, by its own admission, NSA spies on Congress to exactly the same degree that it spies on all Americans—and, thanks to Snowden and a subsequent host of remarks by various members of the Senate Committee on Intelligences–we now all know how much that is. The second revelation is that the regulatory “court” established to keep the Intelligence agencies legal (FISA) has, despite recent revelations about NSA gathering of all our phone conversations, approved continuation of this intrusive policy of spying on all Americans, regardless of the absence of any indication of guilt or search warrants. A plus B add up to the following: whether the NSA has become a rogue agency or not, the real issue is not NSA per se but the whole executive branch of government, headed by the Imperial Presidency, which has allocated unto itself the right to determine that all of us American citizens no longer have the right of privacy and that the regime has the self-allocated right to bypass Constitutional guarantees of civil liberties, for, of course, our own protection. Now, I feel so safe.

What Is an ‘Imperial Presidency?’

For those who don’t spend their time worrying about this undefined animal called the “Imperial Presidency,” you are quite correct if you sense immediately that an “imperial presidency” is a contradiction in terms. “Empire” and a “president,” in the U.S. sense of a democratically elected chief representative of the people’s will, are indeed antithetical, polar opposites, diametrically opposed visions of a political system. An emperor rules to maximize state power; a president represents to serve the people. Not only are the two opposites but they are mutually exclusive concepts: to the degree that the White House lies under the thumb of an Imperial President with the power to bend the law to his private will if not essentially legislate by fiat (start wars, pay mercenaries, spy on citizens accused of no crime, etc.)…to that extent, democracy is supplanted by something the U.S. Constitution was conceived of to prevent.


It gets worse, though. In its unusually gracious public admission that the traditionally classified program of spying on all Americans would be continued, ODNI included a statement that “t[T]he intelligence community continues to be open to modifications to this program.” Think about this remark. Who asked the IC to express its “openness” to modifications of U.S. law? Are we to understand that the decision to spy or not spy on the American people is being made by the IC rather than by our elected representatives in Congress? Who passed the law that empowers the IC to make laws instead of Congress? Why do the esteemed Members of Congress not have sufficient self-esteem to assert their Constitutional right to make the laws, rather than allowing the Executive Branch to subvert the fundamental principal of separation of powers. Is the ODNI arrogating unto itself the right to choose whether or not to be “open to modifications” of U.S. law? Does it also claim the power to deny the relevance of the Constitution? What will happen on the day when the IC decides that it is no longer “open to modifications to this” [or some other] program? Do we still need a Congress or a Supreme Court?


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