Even if ThinkProgress is right, I’m still not happy if Clinton felt that he had the inherent power to order a warrantless search on national security grounds. Separation of Powers 101 says that the Executive only has the powers that Congress gives it, other than those vested in the Executive by the Constitution. And Congress can’t mess with the vested ones.

So, either Clinton was right, but sent Congress a valentine to let them feel like they gave him the power he already had, or he didn’t have the power to begin with and acted illegally the first time.

(In any event, remember when a question of law was something for the Supreme Court to decide, rather than another power of the Executive branch? Now it’s a show of hands by Presidents past and present as to what they should be allowed to do. How things change.)

What Americans are living through is the emergence of a new life form from a chrysalis of chronic political dereliction, and it ain’t no butterfly. From Congress’ cowardly refusal since at least Vietnam to assert its explicitly vested power to declare war, to allowing the Executive to conduct all manner of extralegal actions in the name of national security (for example, the dive Congress took on Iran-contra), we’ve been spinning this little coccoon for years. Look what’s hatched.

I don’t doubt that some of these past actions were taken in varying degrees of good faith. In Clinton’s case, the fact that he didn’t tell Congress to butt out suggests he didn’t believe the malarkey about having the inherent power to conduct warrantless searches and was just acting expediently to nail Aldrich Ames. But this is the danger of Good Intentions: they will one day be used by bad people to justify bad ones.

And while I’m at it, can we dispense with the Right’s implied canard that when Clinton was allegedly justifying warrantless searches, the Left sat silent? It did not. Here is an especially prescient article from Covert Action Quarterly about the then-emerging Orwellian national security state we were allowing to be constructed back in the Clinton years, which documents the contemporanoues opposition to even the FISA courts by the ACLU and others. You should read the whole thing but here’s a money quote:

The possibility of FISA-sanctioned fishing expeditions was only one of the potential abuses that alarmed legal scholars and people concerned with civil liberties. “It’s absolutely ripe for abuse,” said New York City defense lawyer Ron Kuby. There are hundreds of solidarity groups that American citizens work with, and all of those groups could be targets under FISA. These groups and individuals, engaged in legitimate dissent and solidarity work with the victims of U.S. foreign policy around the world, fear that their First and Fourth Amendment rights will be eroded.
Others worry that under cover of secrecy, the court would exceed even its own broad legal mandate. “Clearly the FISA court was strengthened to allow the government to conduct searches they would not be allowed to conduct under the traditional constitutional provisions,” said [Jonathan] Turley. “That means the government could attempt and fail to secure a search warrant under traditional constitutional arguments, then go to the FISA court and convert the case artificially into a national security investigation and secure approval for the very same search.”

In the post-Oklahoma bombing atmosphere, the temptation to broadly interpret national security to include homegrown terrorism is likely to increase. Defenders of the FISA court point out that there are lengthy provisions written into the original legislation to minimize the impact of FISA-authorized surveillance on innocent Americans.

Of course, since no information about the actions of the court is permitted to escape the sealed FISA chambers, the public is expected to accept on blind faith that the minimization procedures are functioning properly and the various law enforcement and intelligence agencies are not overstepping their bounds. But given an extensive and well-documented pattern of past government abuses, Turley’s warning of future abuses seems safe. Even when warrantless searches were unambiguously illegal, the government conducted thousands of them and violated the civil rights not only of possible spies, but of people engaged in constitutionally protected dissent. “Secret searches of Americans’ homes and papers in the name of national security were one of the worst civil liberties abuses of the Cold War,” noted the ACLU’s Martin. Instead of approving them, the Congress should outlaw them.

Unfortunately, although some on the Left raised the alarm, not enough did. It’s some measure of how far America has sunk that even the paranoia-inclined folks at CAQ could only see the potential for abuse in the FISA court itself, rather than in a future lawless Administration treating it as a stupid bimbo it could fuck or ignore at whim.

Now liberals are in the pathetic position of looking to secret, unaccountable FISA courts as our refuge from both terrorists abroad and tyrants at home. Meanwhile our wingnut friends—who used to parrot Franklin (“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”) to defend from the evil Clinton their inalienable right to buy cop-killer bullets— now prostrate themselves before the cynical man whose dereliction made the worst terror attack in our history possible, saying, “Name your price, my lord. My rights are yours.” (Though it looks like there’s a lone holdout.)

Since we are regulary redesigning our currency these days anyway (as part of, what else, the war on terror), I would like to suggest we replace that musty Latin about “Novo Ordo Seculorum” with something more au courant: He loved Big Brother.