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Time for a Check on Administration’s Unchecked Power

If there is one principle that defines modern conservatism, as it defined 18th century liberalism, it is the Lord Acton maxim: Power corrupts, and absolute power corrupts absolutely. No power is more awesome than that of government: It is the power to take away one’s liberty, property, privacy and life, to arrest people and charge them with crimes, to send them to war and to wage war against others, to watch their every move and monitor their actions and thoughts. [IMGCAP(1)]

The framers understood this full well and gave us a system of separation of powers and checks and balances involving all three branches of government. They put checks on every substantial power that government can exercise: the power to declare and go to war, the power to tax, the power to imprison without trial, the power to search someone’s home or person.

Each of these powers, especially those of police, privacy, prosecution and war, are enhanced by modern technology. And that means that the Acton principle is even more important today. Human beings are in charge of government policies and government actions. Give them unchecked power, and inevitably abuses will occur — abuses driven by base motives, like personal greed or political ambition, by incompetence, or by presumed higher motives, such as protecting a country against outside threats or protecting communities against criminals. Abuses will occur even when checks and balances are in place — witness the out-of-control behavior of former Duke University prosecutor Mike Nifong — but at least outlets exist to stop the abuses and punish the miscreants, and then to send signals to others that there will be consequences for such behavior.

We get reminders of this fact on a daily basis. The FBI’s outrageous misuse of security letters, probably a combination of incompetence and misplaced higher motives, shows how important it is, even during a time of serious terrorist threats, to have limits on the powers of spy agencies and executive officials, and how it is folly to trust the smooth assurances of high-ranking officials that they know their limits and of course will stay within the law. If anything, the FBI debacle shows how wrong and dangerous it is to remove the protection of habeas corpus from any class of people — take that combination of bungling incompetence and reckless actions in the name of higher motives, and the odds are close to 100 percent that some perfectly innocent people will get caught up in the net of terrorist investigations. Habeas corpus not only protects their rights but also adds an incentive for zealous wielders of government power to be careful to have their ducks in a row and their evidence sound, since someone will be overseeing their behavior.

Now throw in the burgeoning U.S. attorney scandal. The power of prosecutors can be abused in many ways — harassing and prosecuting people who don’t deserve it or failing to prosecute those who do, using the power to advantage one partisan side over another, and so on. The selection process for U.S. attorneys was designed to build several checks and balances to prevent abuse. They are nominated by the president and serve at his pleasure but have to be confirmed by the Senate. Presidents always have shown deference to home-state Senators to make sure that these individuals are acceptable in their own areas and to prevent the appointment of hacks or partisans. This process has built in an ethos for U.S. attorneys of vigorous independence and integrity.

The Justice Department under Attorney General Alberto Gonzales, with at least some help from the White House and an assist from a few lawmakers, has tried to knock the pins out from under this carefully balanced system. There is no doubt that the ouster of several of these U.S. attorneys was done for political reasons — some of them were moving too aggressively on public corruption cases against Republicans, and others were not moving aggressively enough on voter fraud or corruption cases against Democrats — and now we know that the attorney general and his minions were eager to use a buried provision in the USA PATRIOT Act to avoid Senate scrutiny of their successors.

The press certainly becomes an important actor here to uncover abuses and to give them enough visibility that they can help shame the miscreants to change their ways. Think “60 Minutes” on the Duke lacrosse case, and now many outlets, especially The Washington Post, on the two stories above. But the key to limiting abuses of power is Congress. Without serious, sustained, aggressive oversight, careful attention to the details of laws and a determined effort to bring abusers to the dock and hold them accountable, we are all in trouble.

Once again, we can look back on the past few Congresses, where the majority, with a few notable exceptions such as Rep. Tom Davis (R-Va.) and Sen. Arlen Specter (R-Pa.), acted more like loyalists on the president’s team than like independent legislative checks on an often reckless executive. From voting rights cases (such as the Georgia voter ID law and the Texas redistricting plan) to Guantanamo and Abu Ghraib to the implementation of the PATRIOT Act, the Justice Department, FBI and Defense Department avoided scrutiny and acted with impunity. The PATRIOT Act, in its initial passage but even more in its renewal stage, did not get anywhere near the deliberative scrubbing it needed. God knows what other outrageous provisions are buried somewhere within it.

Sadly, many of those who call themselves proud conservatives have been co-conspirators or hapless bystanders in the face of a dramatic expansion of executive power. Whenever I see Attorney General Gonzales, I am reminded of comedian Jack Benny. Benny’s signature line came when, in a skit, he was accosted by a robber in an alley who put a gun in his ribs and demanded, “Your money or your life.” Benny paused, and said “I’m thinking, I’m thinking.” Ask this attorney general, “The Constitution or loyalty to your mentor the president,” and he would respond, “I’m thinking, I’m thinking.” No self-respecting conservative should let any attorney general, or any White House or any wielder of awesome government power, get away with this stuff.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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