David Brooks: Gang of 14

Brooks actually makes sense today. Or some sense, at least.

Bring Back the Gang of 14
Published: February 12, 2006

It was a golden moment for the fulminators.

John McCain, Joe Lieberman, Mike DeWine and 11 other senators had just forged a bipartisan deal to head off a nuclear showdown over judicial filibusters. The howls, especially on the conservative side, were deafening.

“This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans,” James Dobson roared.

“McCain brokered the deal to betray his Republican colleagues by negotiating a private surrender to the Democrats,” Grover Norquist charged.

“This is a big defeat for Republicans,” Paul Weyrich growled.

“Shame on them all,” the normally sagacious Gary Bauer admonished.

Now eight months have passed, and what were the results of this betrayal, this shame, this surrender? Chief Justice John Roberts. Associate Justice Sam Alito. Many other Bush nominees have been confirmed — without a single filibuster.

The Gang of 14 agreement was no defeat. It was a triumph. It preserved the traditions of the Senate. It lowered the ideological temperature. Most of all, it transformed what had been an abstract ideological feud about Senate procedures into a concrete exercise in democracy.

If that deal hadn’t been forged and the nuclear option had been exercised, the Roberts and Alito nominations would have been subsumed in a continuing holy war. Passions would have been aboil, party lines would have been rigid. The individual merits of Roberts and Alito would have been lost amid the bitterness and hatred.

But as it was, the hearings were relatively civil. The American people got a chance to see Roberts and Alito unobstructed. They were favorably impressed by their calm demeanors and unimpressed by the partisan assassins.

The Gang of 14 agreement was one of the political highlights of 2005 precisely because it punctured the ideological posturing and paved the way for a series of pragmatic judgments on a nomination-by-nomination basis.

But now we need the Gang of 14 back again, because another issue has ossified into abstract ideological debate. This is the issue of National Security Agency wiretapping.

On one side we have conservatives making ambitious assertions about executive authority. On the other, we have liberals making wild allegations about invasions of privacy that have nothing to do with the narrow program the president actually authorized. On the right you have Dick Cheney worrying about the return of Frank Church and on the left you have Howard Dean vaporizing about the return of Dick Nixon.

As the global riots last week make abundantly clear, we are facing a generation-long war, and we will not be able to fight effectively if we keep squabbling this way. That’s why we need another Gang of 14 to devise a sustainable bipartisan solution.

That solution would be based on a series of truths. First, we need aggressive intelligence programs to head off attacks. Second, whatever you think of the legal and constitutional merits, those programs will not survive with the current level of Congressional disquiet. Third, despite what Arlen Specter is proposing, we can’t throw the mess to the courts to resolve. Unelected judges should not be put in charge of national security decisions. It is Congress’s job to oversee the executive.

The central problem today is that senators have the power to criticize and tear down N.S.A.-style programs, but it won’t be their rear ends in a sling if we are attacked. It will be the president’s. We need a Gang of 14 to draft legislation that will hold presidents and senators, Republicans and Democrats accountable for national security decisions. We need legislation that causes both parties to think concretely about how to succeed and share blame in case of failure.

Here’s how you do it. You exempt searches covered by the Bush program from the Foreign Intelligence Surveillance Act. You give the intelligence committees oversight responsibilities for those programs. You toughen the penalties for anybody who dares to leak secrets about those programs. You let committee members know that if the United States is attacked, and they opposed programs that could have prevented that attack, then it will be their name in the headlines, their name going down in historical infamy.

That kind of shared responsibility will induce a little seriousness. That will break through the abstract partisan warfare. Democratic senators know their party can’t win elections if they continually position themselves as A.C.L.U. doves in security fights. Republican senators know they weren’t elected just to serve as serfs and servants to the almighty executive. The question is: Who will lead the next Gang of 14 to broker this deal?

The Discussion: 2 Comments

Cops cannot invade your privacy unless a judge believes there is probable cause to believe you may have committed a crime.

David Brooks believes that this modest protection of your privacy is unnecessary when the alternative is terrorism; this modest protection is not necessary during time of war.

The “war against terror” has already been re-christianed “the long war.” That means you can forget about your privacy ever being taken seriously again…. until somebody decides “the long war” is over.

The most interesting thing about having a judge decide whether there was probable cause or not (and issue a warrant or not), was that the judge just made an invasion of your privacy just a little bit tougher. Who is going to protect your privacy now? Nothing is standing in the way of the cops breaking down your doors.

February 12, 2006 @ 2:12 am | Comment

Brooks says, “we have liberals making wild allegations about invasions of privacy that have nothing to do with the narrow program the president actually authorized.”

Brooks fails to understand that citizens have been injured by the removal of their constitutional security against unreasonable searches and seizures, not just simply by actual “invasions of privacy,” which may or may not have actually occurred, so far as we know. In other words, Bush made a hole in the wall around our property, even if he did not actually trespass. The Fourth Ammendment both forbids unreasonable searches and seizures (the trespass) and provides, in its word, “security” against such violation by requiring warrants based on probable cause.

February 12, 2006 @ 10:36 am | Comment

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