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Hey Mainstream Media! Why Doesn’t Presidential Dismantling of the Constitution Warrant the Same Intense Scrutiny as Presidential Adultery?
Published on Tuesday, January 17, 2006 by
Hey Mainstream Media! Why Doesn’t Presidential Dismantling of the Constitution Warrant the Same Intense Scrutiny as Presidential Adultery?
by Andrew Bard Schmookler

Eight years ago, a president entering his sixth year in office came under suspicion: had he conducted an adulterous affair with a young intern? For months thereafter, the media could talk of little else. It was the national topic of conversation for most of that year. The House eventually impeached the president, and the Senate tried him.

Now again, a president entering his sixth year in office has come under suspicion: has he deliberately and unjustifiably violated both the Constitution and federal statutes by conducting searches without a warrant? But this suspicion is not getting anything like the kind of media attention of the Monica Lewinsky story.

Why is that?

The presidential oath of office states: “I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Thus the core of his job is expressed in terms of defending, not our standard of living, nor even the general welfare, but our Constitution itself.

So why was Monica more deserving of attention? None of the possible “explanations” can stand as justifications.

1) The grounds for suspecting President Bush of violating both the letter and the spirit of his oath of office are not weaker than were the grounds for suspecting President Clinton of hanky-panky with an intern.

2) The possible wrong-doing by the current president would in no way be less important for Americans to confront than the wrong-doing of his predecessor; indeed, the present suspicion against the president is precisely the kind of thing that most worried our Founding Fathers.

3) The media may assume that the American people are less interested in protecting the Constitution than in sex scandals, but they haven’t bothered to test that proposition. And even if it were true, that would not justify the failure of the press to fulfill its duty as watchdog and protector of our democracy.

Grounds for Suspicion

The president has admitted to ordering wiretaps to be conducted without getting the court warrants required by the 4th Amendment to the Constitution and by the Foreign Intelligence Surveillance Act (FISA) of 1978. To justify his actions, he and his people have made two claims: first, that they had the legal authority to do so; and second, that their actions were required for the sake of national security in a time of war.

It is hardly reassuring about the moral and intellectual integrity of this administration that the legal justifications offered thus far are regarded as almost laughably flimsy by the independent legal authorities who have commented on them.

First, they’ve claimed that the congressional authorization to fight the terrorists abroad, passed in the aftermath of 9/11, also authorized domestic surveillance. But the language of the enabling legislation supports no such claim, and the record of the debate at the time suggests that the Bush administration fully understood that such authorization would require additional provisions that Congress expressly declined to enact. In addition, why would President Bush have given his subsequent (false) public reassurance that his administration abides by the requirement to get warrants before conducting searches if he felt he’d been authorized by Congress to do otherwise?

Second, the Bush administration claims that the powers constitutionally given to the president as commander-in-chief permits him to do whatever he pleases in waging war, regardless of the law or of the prerogatives of the other branches of the government. Such a claim has been widely regarded by legal scholars as baseless as a reading of the Constitution, and as antithetical to the whole spirit of our constitutional system.

Still, there could be important national security reasons for a president to violate the law. And it’s possible that the American people –whether wisely or not—would be willing to allow the president to take illegal measures if they were required to defend the nation. But here, too, there are also reasons to doubt the presidential claims that his apparently illegal actions have been required by the demands of national security.

FISA created a court especially for the purpose of issuing such warrants, and it has issued many thousands of such warrants, while refusing only four. The law even makes provision for those situations in which urgency makes it impractical to go first to court: the executive has three whole days after emergency surveillance to come to the court for its actions to be scrutinized and validated.

So what legitimate national security reason might there be that would have prevented the president from both protecting the nation and obeying the law and the Constitution?

There remain strong grounds for suspicion that the president was serving no national good, but only hijacking power that the Framers of the Constitution expressly sought to deny him. And it does not help allay our concerns that this conducting of warrantless searches fits into a "pattern of disregard” for legal restraints, both domestic and international. But if the president has a good justification, let us hear it.

In any event, why isn’t President Bush being pressed to provide justification, and why isn’t the evidence being explored publicly with the same intensity that was devoted to the Lewinsky affair?

The Most Vital of National Interests

The moral character of the president in his private life does matter. As the most prominent personal embodiment of the nation, the president inevitably is a kind of role model. So President Clinton’s dalliance was not altogether irrelevant to his fulfillment of his job as president.

But the suspicions about President Bush’s abandonment of his core oath to protect the Constitution relate to the very core of his presidential responsibilities.

As the oath makes clear, the Constitution is the heart and soul of America. It is the inner sanctum that our public servants swear to protect; the great gift that our soldiers have fought and died for, the very foundation of our national identity. Even while we Americans divide on many issues, the sanctity of the Constitution is what unites us. It is our core assertion to the world that “we are a nation of laws, not of men.”

In this context, what could matter more than whether the President of the United States is honoring his oath of office, or whether he is treating the Constitution as an obstacle to be casually, needlessly swept aside?

Our Founding Fathers certainly would have known that this is an absolutely major story. The system of checks and balances was not a casual thing. It was a profound vision they had on meeting the challenge of how to avoid tyranny. And, as human history shows, the avoidance of tyranny is no small accomplishment. Free and decent societies have been few.

The fourth amendment protection against “unreasonable search and seizure” represented the Founding Fathers’ understanding, based on the millennia of human history in which they were schooled, of the tools of tyranny. If the King does not need the approval of the Judge to invade the privacy of the citizen, freedom is imperiled. So “We the People” determined that the court would serve as a check and a balance against the potentially tyrannical power of the executive.

If there was no imperative need for President Bush to conduct searches without first getting a warrant, then why did he do it? Would he grab a tyrant’s powers if he didn’t have a tyrant’s intentions?

We urgently need an independent investigation to discover just what purposes were being served by these warrantless wiretaps. Was this monitoring confined to those people who might reasonably be suspected of being a terrorist threat to America? Or were people perhaps chosen as targets for surveillance simply because they were political opponents of this president and his policies?

What could be more important than to know whether the great achievement of our Founding Fathers is being dismantled? But one would hardly know anything of such vital importance was at stake from watching how our mainstream media are dealing with this possible constitutional crisis.

What Master Is the Media Serving?

Is the reason for the media’s casualness in treating this administration’s possible running roughshod over the Constitution that the media don’t think this story will grab an audience the way, say, stains on a blue dress did?

But how would they know?

Watergate certainly transfixed the nation thirty-some years ago.

If Linda Tripp’s disclosures had been given no more play than those of the NSA’s warrantless spying on Americans, would people have gotten so swept up in the that affair? And if the present suspicions of presidential usurpation of powers were getting the kind of wall-to-wall coverage that Clinton’s extramarital dalliance received, might the American people be just as engaged in this story?

Recall that the upshot of the Lewinsky affair was that the American people, while repelled by Clinton’s conduct, mostly rallied to his defense. Though the House impeached him, and the Senate tried him, the president’s approval ratings climbed to levels exceeding those preceding the scandal—presumably because the American people decided that the assault on Clinton was an even bigger scandal than the president’s inability to control his sexual impulses. This was not, a majority of the American people decided, a matter that warranted bringing to bear the heaviest of constitutional machinery to bear to remove a president.

When the Congress investigated Watergate, however, President Nixon benefited from no such rallying of popular support. The public recognized that the abuse of presidential power was a vital national concern. There is simply no evidence from the Watergate story that the defense of our political system has no “sex appeal” to the American public.

So why then do the mainstream media not treat this with the urgency that they gave to Monicagate? Is the difference perhaps not in the nature of the possible offense, but in the nature of the media’s relationship to the respective presidents? Just what master is themedia serving?

Even if the American people did prove to be slow to care, is it not the job of the media not just to pander to public interests but also to direct public attention to the important public business of the times? Is it not the ultimate job of the press not just to get ratings and make a profit but also to serve the public interest?

The danger of a tyrant arising in the executive and abusing his power was far more compelling to our Founding Fathers than the danger of our being unable to defend ourselves against foreign threats. Would our Founders have accepted, without stringent proof, that America has had to adopt the police-state tactics of this commander-in-chief to protect ourselves against outside enemies?

James Madison wrote in The Federalist Papers, in promoting our Constitution: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

And then there is the line widely attributed to Thomas Jefferson: “The price of freedom is eternal vigilance.”

If Jefferson and Madison were alive now to see the lack of vigilance of the mainstream America media in the face of these suspected threats to our constitutional protections against tyranny, they’d turn over in their graves.

If tyranny is not stopped in its earliest stages, it only grows stronger and becomes still more difficult and dangerous to stop.

Andrew Bard Schmookler has recently launched his website devoted to understanding the roots of America’s present moral crisis and the means by which the urgent challenge of this dangerous moment can be met. Dr. Schmookler is also the author of such books as The Parable of the Tribes: The Problem of Power in Social Evolution (SUNY Press) and Debating the Good Society: A Quest to Bridge America’s Moral Divide (M.I.T. Press). He also conducts regular talk-radio conversations in both red and blue states. Email to:


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