Tacitus, writing of the first Senate meeting after the death of Augustus Caesar (Annals 1.8):
Messala Valerius further proposed that the oath of allegiance to Tiberius should be renewed yearly, and when Tiberius asked him whether it was at his bidding that he had brought forward this motion, Valerius replied that he had proposed it spontaneously, and that in whatever concerned the State he would use only his own discretion, even at the risk of offending. This was the only style of adulation which yet remained.
The pathetic and quite ridiculous record of the Roman Senate's capitulation to imperial power is rife with analogues to the collapse of the US Congress during the last two generations in matters of national security and international affairs. And this without the Romans' excuse that they feared for their lives.
During the Principate, the Roman Senate essentially struck a deal with successive emperors. Caesar could consolidate actual power and govern as he wished as long as Senators retained some outward signs of power and the status that went with the dignity of holding high office. The appearance of being consulted occasionally by the emperor, the public repute that came from "debating" matters of state, the feeling of importance, the Senators were willing to exchange for actual independence. Rather than try to check the emperor's aggrandizement of power, they merely sought to be co-opted. "Deliberation" meant finding out what the commander in chief of the armies wanted and giving it to him - occasionally giving even more than he asked, just to flex the Senate's atrophying muscles.
Any fool of a Senator who made the slightest show of actual independence was immediately undercut by his fellows. So eager were they to win the favor of Power, and so painfully aware of the network of spies that potentially knew of every word they spoke.
All of this is brought to mind by the supine behavior of the US Congress during the last week, especially its precipitous abandonment of the Fourth Amendment in exchange for mere assurances that the President will have to consult them now and then in the future about his rationales for spying upon citizens without warrant. To be consulted is to be important. It signifies that Congress still matters - although (or rather, because) it balks at nothing it is asked to endorse.
This explains so much in the record of Congressional Democrats that voters find perverse. Members of Congress are intent above all on protecting the fragile illusion that they still wield power. To dare a showdown with the president on any issue of importance is to risk shattering the appearance of power and hence their self-image. Rather than try to check the president's aggrandizement of power, too many members of Congress merely seek to be co-opted.
But isn't their climbdown on FISA a profound humiliation? Sure, but I'd bet they can rationalize it away.
This report, about the Bush administration's arrogation of unchecked power over terrorist-suspects, nicely frames several related issues. First, it highlights how the federal courts, unlike Congress, have repeatedly rebuffed Bush's power grabs in obvious and principled fashion. While the administration was trying to monopolize certain powers that properly belong to the judiciary, it was not able to throw any sops in the direction of the courts. Naturally the courts resented the Executive's aggrandizement and saw nothing to gain by rolling over for the President.
The article also points out that the Bush administration sometimes refused to pull the rug out from under the courts in the tried and true way - by getting Congress to legalize whatever lawlessness it was engaged in. Here is an example of WH pigheadedness over the due process case of Yaser Hamdi from 2004.
Jack L. Goldsmith...[described] a White House meeting he attended... in which Paul D. Clement, of the solicitor general's office, warned that the administration might lose the case before the Supreme Court, despite its "solid legal arguments." Goldsmith said he suggested that the administration seek a congressional sign-off for the entire detention program, something that would make it harder for the court to strike down the program.
Goldsmith's view was supported by Clement, then-National Security Council lawyer Bellinger and Pentagon general counsel William J. Haynes II -- but not, Goldsmith said, by David S. Addington, then legal counsel to Vice President Cheney.
"Why are you trying to give away the president's power?" Addington asked, according to Goldsmith, who explains that Addington thought it might suggest that the president could not act on his own.
Why concede in any way that the president cannot make something legal just by willing it so? That question has been the leitmotif of the multi-year quest by Addington and Cheney to create an all powerful Unitary Executive.
And it brings us back to what I presume is the primary rationalization among members of Congress for their cowardly FISA legislation. They can claim, almost with a straight face, to have won the larger constitutional struggle by tying the Executive down to an "oversight" process that involves both the Legislative and Judicial branches.
Rockefeller, chairman of the Senate Intelligence Committee, said the bill "will prevent any repeat of warrantless surveillance undertaken by the president and will hold our government accountable for its actions, past and future, through strengthened court review and congressional oversight."
By a delusion such as Rockefeller's, the WH has conceded power by agreeing to consult very occasionally with a few representatives of the other branches about the warrantless wiretapping that it alone will direct. It is a delusion, and very much in line with the imperial Roman Senate's illusions of grandeur.
Of course it is a delusion, what could be clearer? For the US Congress is rushing once again to give the President everything he asked for, and more.
The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute. “I think the White House got a better deal than they even they had hoped to get,” said Senator Christopher Bond, the Missouri Republican who led the negotiations.
