The Magazine

The Law and the President

In a national emergency, who you gonna call?

Jan 16, 2006, Vol. 11, No. 17 • By HARVEY MANSFIELD
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In the present administration, we do not really need to know the sort of secrets we learn from reporters like Bob Woodward. We do not need to know, for example, how important Vice President Cheney is; we can praise or blame President Bush for choosing to be advised by him. With one person in charge we can have both secrecy and responsibility. Here we have the reason that American society, in imitation of American government, makes so much use of one-man rule. In all of its institutions--corporations, unions, sports teams, gangs, and universities--our republic likes to place power in the hands of one person, and then hold him responsible. That is our republican maxim, quite different from the traditional one that sees safety in numbers.

From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country. We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up.

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply. But it is precisely difficult situations that we should think about and counsels of perfection that we should avoid. Otherwise we end up admitting truth with a bad conscience, as did John McCain recently, when after denouncing the use of torture, he suddenly said on the contrary: "You do what you have to do." In this way you have morality and the rule of law on one side and necessity on the other. But isn't there a legal and a moral way to deal with necessity? Our Constitution, properly understood, shows that there is. We need to take better stock of our own achievements.

Harvey Mansfield is the William R. Kenan Jr. professor of government at Harvard.