Gollum and Godot

The justice department has decided to track down whoever leaked the FISA story to the New York Times and Washington Post.   Why don’t I feel better or safer?  Let’s see, for one I was under the impression that the Attorney General was supposed to be protecting the Constitution and myself rather than the Administration.  Believe it or not, it’s been thirty five years since Daniel Ellsberg copied the Administration’s Secret History of the War in Vietnam.  I’d say that we as a nation haven’t learned a lot in the last thirty years.

The administration chose to prosecute Ellsberg and Anthony Russo.  At the same time, the White House decided to “dig up dirt” on Ellsberg by breaking into his psychiatrist’s office.  Ellsberg though that going to the Times and Post with the papers would help end the war.  Instead, the papers indirectly led to the impeachment/resignation of Richard Nixon.  The war continued into the Ford administration so they could make Miss Saigon and the Deerhunter.

The Foreign Intelligence Surveillance Act (1978) sprung from these events and I suppose that compounds the irony.  Even though Richard Nixon climbing into that helicopter in 1974 felt like the final act, a lot of issues never got settled back then.

1)  When the Justice Department restrained the publication of the Pentagon Papers for 10 days, the Supreme Court didn’t say that the press has an unfettered right to publish without restraint.  The Court determined in NY Times v. US that the administration hadn’t met its burden of proof to allow it to restrain publication of a sensitive story on national security grounds.  
     The Pentagon Papers were literally historical.  They documented the misdeeds and lies of four different administrations in Vietnam.  Oddly, the Nixon administration wasn’t one of them.  The papers included no current information about troop positions, weapons, etc.  They did include information like the US knowing that elections in Vietnam weren’t free and fair or that the Tonkin Gulf Incident never actually happened.  
    The Court contemplated the possibility that there might be a national security matter sensitive enough to permit prior restraint.  We still don’t know where the line is.

2) Russo and Ellsberg were the beneficiaries of a mistrial because of government misconduct.  The court never looked at the issue of whether or not their act of civil disobedience for releasing classified information to the press was still criminal.
We don’t know when whistleblowing of this sort should be rewarded or punished.

3) FISA was the product of a congress that was fresh from dealing with serious questions presented by Presidential disregard for process.  It meant to lay out clear procedures even when the Executive was pursuing information involving foreign affairs.  
It would indeed be ironic if this post-Watergate set of provisions became the basis for yet another impeachment.

One of the proposed grounds for the impeachment was the secret bombing of Cambodia.
The publication of the papers raised a number of questions about the limits of presidential authority in war.  What role did Congress play?  What did people have a right to know?  Where did presidential discretion begin and end when it came to national security?  

Because the president got implicated in a common crime, we didn’t actually answer those questions thirty years ago.  

1. Perhaps the deepest irony  was that after all of the fury over whether or not they should be published, I suspect that only a handful of people have ever read them in full.  I confess that I’m not one of that handful.  That said, the papers themselves weren’t an indictment of a particular president since they spread across four administrations.  As a whole, they documented an unannounced shift in the way foreign policy was actually conducted by the Executive.  

After World War 2, someone or some group of people determined that separation of powers, checks and balances, and consent of the governed might not be fast enough to cope with a world of airplanes and nuclear weapons.  This wasn’t a democratic or a republican thing.  If the executive was to have powers outside the Constitution in matters of war, then it also couldn’t afford to be wrong.  Vietnam was the tragic result.

In the years after Pentagon Papers/Watergate, nothing fundamental about the Executive/Intelligence/Defense Establishment changed.  We knew that Nixon had gone too far, but we never had a serious national discussion of how it happened and what to do about it.  There was much more wrong than just the fact that Nixon was President at the time.  

I personally believe that George W. Bush committed an impeachable offense.  
I have no idea whether or not he will actually be impeached in the next year or two.  It’s critical though that we understand that the problem runs much deeper than who happens to be president.  For fifty years, we have been getting into wars for reasons that most Americans don’t understand and that aren’t shared with the general public.  Worse yet, once we are committed to these wars, the executive is “constitutionally” incapable of correcting its mistakes.  What’s supposed to be a streamlined warmaking process instead more closely resembles Godot.  We can’t explain how we got there and we can’t figure out how or when to leave.  

W and his cronies are merely the current face of the problem.  Our system of government was purposely designed to trade off efficiency in favor of avoiding the corruption inherent in the concentration of power in a single group of individuals.  Two hundred and twenty years later, we have a Gollumish president more drawn to the ring than what it might accomplish.  

If we are to survive another thirty five years, I suspect we will need more than the “perfect” constitution.  We’ll need to be the kind of people who can make such a document effective.  There may indeed be times when someone will have to make decisions outside the process and do things in secret.  At the same time, we have to have ways to hold those individuals accountable.

Personally, if someone had done these things and actually made my family and me safer, I might not be so upset.  The thing we should be most upset about is that there’s been no tradeoff.  The administration hasn’t made us any safer from outside dangers and we certainly aren’t safer from the dangers of giving the wrong people too much power.  Chasing the leaker is yet another reminder of that fact.  

     I wonder what would have happened if 33 years ago, the Nixon Administration had acknowledged the Pentagon Papers instead of attacked them.