January 17, 2006,
In an alternate universe, coverage of Al Gore's speech in Washington Monday might begin with the former vice president's ringing defense of the virtually unlimited exercise of presidential power in times of emergency. "The threat of additional terror strikes is all too real and their concerted efforts to acquire weapons of mass destruction does create a real imperative to exercise the powers of the executive branch with swiftness and agility," Gore told the audience at the Daughters of the American Revolution Constitution Hall. "Moreover, there is in fact an inherent power that is conferred by the Constitution to the president to take unilateral action to protect the nation from a sudden and immediate threat, but it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not."
An alternate-universe report might note that Gore's position stated by the man formerly a heartbeat away from being commander-in-chief boldly contradicted the claims of Democrats who argue that, in the NSA-al Qaeda surveillance matter, the president's authority to order warrantless surveillance of possible terror suspects is tightly bound by the limits imposed in the Foreign Intelligence Surveillance Act. Gore's speech might then set off an intense debate among Democrats about the extent of presidential authority.
But that's the alternate-universe version. While Gore actually did say the words quoted above, that soundbite was just one small part of a long speech in which Gore argued just the opposite, that President Bush not only does not have the authority to conduct the war on terror as he has been doing but that his policies have crossed the line into criminal acts. The president has been "breaking the law repeatedly and persistently," Gore said, and his war on terror has "brought our republic to the brink of a dangerous breach in the fabric of the Constitution." Gore stopped short of calling for Bush's impeachment, but he seemed to be suggesting it and the crowd certainly seemed to be thinking about it when he said that Congress should hold hearings into "serious allegations of criminal behavior on the part of the president, and they should follow the evidence wherever it leads."
Gore's speech was sponsored by the American Constitution Society, a group founded in 2001 to be the liberal counterpart to the Federalist Society, and by an organization called the Liberty Coalition, a little-known group created last year, in the words of its mission statement, "to help organize, support, and coordinate transpartisan public policy activities related to civil liberties and basic human rights." To show its "transpartisanship," the Coalition claims as partners the American Civil Liberties Union and the American Conservative Union; MoveOn.org and Americans for Tax Reform; Democrats.com and Townhall. It's not entirely clear just how broad the Coalition is the American Conservative Union, for example, says it is not affiliated with the Coalition and had nothing to do with the Gore speech but in any event, organizers tried hard to suggest that the day's program was not about Republicans or Democrats.
Whatever the case, the crowd at Constitution Hall was not at all transpartisan, or even bipartisan. From all appearances, it was a classic MoveOn-style gathering; indeed, MoveOn's political chief, Eli Pariser, had sent out e-mails inviting members to the event. The crowd gave Gore a standing ovation when he walked to the podium, and thunderous applause when he accused the president of breaking the law. There was more heartfelt applause and one shout of "Right On!" when Gore referred to "the shocking decay and degradation of our democracy." Whatever the crowd was, it wasn't transpartisan.
In his speech, Gore, who during the impeachment battle of 1998 and 1999 was perhaps President Clinton's most impassioned defender, expressed a profound reverence for the rule of law. He referred to it nine times, saying, among other things:
"It is imperative that respect for the rule of law be restored."
"Once violated, the rule of law is in danger."
"[We must] safeguard our Constitution against...the president's apparent belief that he need not live under the rule of law."
The audience loved it. (It was not, by the way, a full house; organizers estimated attendance between 2,800 and 3,200, a turnout which left lots of empty seats in the upper tiers of Constitution Hall.) They also loved Gore's five recommendations for dealing with the "crisis." First on the list was the appointment of a special prosecutor to investigate the NSA surveillance. Citing the Patrick Fitzgerald CIA leak investigation, Gore said we have learned how "an independent investigation by a special counsel can rebuild confidence in our system of justice." That got a good round of applause.
But wait. Isn't Fitzgerald looking for whoever might have leaked classified information in the Valerie Wilson affair? Gore certainly doesn't want that to happen in the NSA matter. So his second recommendation was that "new whistleblower protections should immediately be established" to guard those who leak highly classified information like the existence of the NSA program. More applause. Someone leaked the nation's secrets in the NSA case, but nobody at Constitution Hall wanted to know who it is.
Still, amid all the accusing and prescribing, Gore uttered those few words about the president's "inherent power" to take "unilateral action" during an emergency. No matter what else he said, Gore flatly declared that the president has the inherent authority to do what he believes is necessary to defend the country. While the crowd sat on its hands what's he saying? the statement shouldn't have been a surprise. Gore is, after all, the former vice president of an administration that claimed the inherent authority to order national-security break-ins without a warrant. Even when the administration supported placing such break-ins under FISA restrictions, it still claimed the inherent authority to do them unilaterally, if the president thought necessary. (See here and here .) So it's worth noting that Gore, like other Clinton-administration officials, did not say that President Bush does not have the authority to order warrantless surveillance targeted at al Qaeda communications. Rather, his complaint seems to be that Bush has done too much of that sort of thing for too long, which Gore claims has produced "a serious imbalance in the relationship between the executive and the other two branches of government."
Other parts of Gore's speech just didn't make sense. For example, he devoted a good deal of time to discussing the history of curtailments of civil liberties during the course of American history. First there were the Alien and Sedition Acts, and then Lincoln and suspension of habeas corpus, and then Wilson and the Palmer Raids. And then came the second World War. "The internment of Japanese Americans during World War II marked a low point for the respect of individual rights at the hands of the executive," Gore said. "And, during the Vietnam War, the notorious COINTELPRO program was part and parcel of the abuses experienced by Dr. [Martin Luther] King and thousands of others." After each episode, Gore explained, when "the conflict and turmoil subsided," Americans reflected on what had been done and "absorbed the lessons learned in a recurring cycle of excess and regret."
Yet later in the speech, Gore credited earlier generations with resisting the temptation to curtail rights, even in the face of grave dangers like World War II and the Cold War. "Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment's notice?" Gore asked. "Is America in more danger now than when we faced worldwide fascism on the march when our fathers fought and won two World Wars simultaneously?" Not at all, Gore said. "It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same."
Well, which was it? Did members of earlier generations "faithfully protect" our liberties, or did they set up COINTELPRO and intern Japanese Americans? Gore said both things, just a few minutes apart. It was, in a way, characteristic of his entire speech. Unilateral presidential action is illegal and it's legal. Leaks are bad and they're good. Previous generations curtailed our rights and they didn't.
No matter. The crowd was thrilled. Many people in the audience, it seemed, wanted nothing more than for Al Gore to tell them that everything they believed was right. And they got what they came for.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.