There is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.The above paragraphs perfectly describe not just an administration, but rather more explicitly a person: VP Cheney. He's the monster in the box.
Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.
When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.
If that is so, the best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.
But as for the flip-flop, did Bush really pull a reversal concerning the eavesdropping program? Did he actually retreat? Darn if I know, and frankly I would doubt anyone who claims otherwise. We know no more now than we did months ago or even a year ago. Don't fall for the hype -- the program remains a constitutional mystery.