This week, President Bush is struggling to deal with rising accusations that he committed federal crimes in ordering the eavesdropping on hundreds, if not thousands, of people without court orders. It is a scandal that raises troubling questions not just for the presidency but also for the president.
In some ways, it was inevitable that we would find ourselves at this historic confrontation. Bush has long viewed the law as some malleable means to achieve particular ends, rather than the ends itself. In this sense, there is an eerie similarity between the views of Bush and two of his predecessors: Richard Nixon and Bill Clinton.
Beyond the fact that these two presidents share the ignominy of being accused of high crimes and misdemeanors, they shared a deep inherent flaw as individuals: They were relativists who treated morals or the law as fluid concepts that could be bent. A relativist believes that there are no absolute truths, but rather that morals or laws differ according to the context and people involved.
Good intentions, but …
For his part, Bush can legitimately claim that (unlike Nixon and Clinton) he was acting to protect the public rather than committing crimes for his own personal benefit or protection. Yet, this is an argument long rejected in law. Many a bank robber has insisted that he robbed a bank for the best of reasons. Even so, if you rob a bank to feed your family, you are still a bank robber.
George Bush is a study in relativism. He has long claimed unchecked authority after he declared a “war on terror.” He became a maximum leader subject to few, if any, legal limitations. Repeatedly, the White House has engaged in a type of reverse engineering. Rather than explain the scope of lawful conduct and develop operations within those lines, the president routinely creates operations and then asks lawyers to conform the law to them.
In his recent speech defending his eavesdropping policy, Bush explained that “right after September 11, I knew we were fighting a different kind of war,” and so he solicited different ways to gather information. Once he decided on the operation, his legal staff proceeded in justifying the operation as a legal matter. The problem is that the operation called for officials to commit a clear crime under federal law: intercepting telephone calls in the USA without a court order.
Bush’s claim of inherent authority to circumvent federal laws is virtually identical to the argument made by Nixon in his model of the “Imperial Presidency.” Over time, Bush has combined a relativistic view of the law with an imperial model of the presidency. Also as Nixon did, Bush surrounded himself with lawyers — such as former attorney general John Ashcroft and current Attorney General Alberto Gonzales — who told him what he wanted to hear: that once he declared a “war” on terror, he vested himself with maximum powers and was free to use virtually any means to achieve his chosen ends.
A flaw that Bill Clinton knew, too
Ironically, though Republicans will shudder at the comparison, Bush shares this flaw with Clinton, who was a moral relativist. Despite his convenient moments of religiosity, Clinton defined morals solely by their consequences. He did not appear to hesitate to lie under oath or to the American people when confronted with his affair with Monica Lewinsky. Only after a certain blue dress proved that he lied did Clinton embrace contrition and seek forgiveness.
Bush is no moral relativist. He is a legal relativist. While he views morals in absolute terms, he sees the law as fluid and fungible. Just as any moral excuse will satisfy a moral relativist, any legal argument satisfies a legal relativist.
I testified in the congressional hearings in favor of impeaching Clinton and thought that he should have been convicted for lying under oath. Yet, it is far more dangerous to be a legal relativist than a moral relativist. It is unclear what a legal relativist means when he swears to “uphold and defend the Constitution.”
Principle is rarely convenient in politics, but it remains the dividing line between true statespersons and mere politicians. When it comes to law and war, everything is not relative. At least not for those defending the rule of law.