It may not necessarily be the case that the Republicans behind the Clinton impeachment anticipated either the George W. Bush presidency in particular, or even the likelihood that his during that presidency, he would find himself facing the prospect of impeachment, as I once argued.

But if anything, the events of the months that have passed since I first made that argument have convinced me that certain Republicans did indeed have an eye on using the next GOP presidency to attempt to reestablish a pre-Watergate understanding of the executive's place in the constitutional order. And that would necessarily include some variants of the very activities -- or at least some of the very same justifications for other activities -- that got the first boss in hot water. That is, it wouldn't necessarily have to be illegal surveillance that would be at the center of this intentionally-provoked controversy. What would be important to the people behind this is that whatever the activity was, it would be defended as being within the prerogative of the presidency, whether the grounds be national security, executive privilege, or some new formulation of the same old thing.

But for the sake of argument, let's stick with the example of surveillance -- just as the bad actors themselves have opted to do. Why would they undertake such a thing, especially given their special history with being on the wrong side of the law on this issue? Isn't it now "settled law" (and I use that phrase intentionally, to remind everyone of the recent Supreme Court confirmation hearings) that neither national security nor executive privilege protected Nixon's warrantless surveillance and his secretiveness about it?

Well, yes and no. Yes, the courts held that Nixon was not entitled to executive privilege under the circumstances. And yes, Congress enacted all sorts of reforms that made particular activities in which Nixon had engaged plainly illegal. But also no, in the sense that under slightly different circumstances (and they're always slightly different, from case to case) a not-completely implausible constitutional argument might be made that the distinctions entitle these new activities to different or special consideration. And whether those slightly different circumstances be the technologies used to conduct the surveillance, or the "state of war" under which it was conducted matters not. Just so long as there be some not-completely implausible argument that can be put forth to justify it.

Getting back to the original question, though: Why test this again? Well, because the reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.

That reality is absolutely critical to understanding what's going on here.

"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?

"Well, then, it's not murder," you say.

Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.

So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.

It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each.
                                        -- Chief Justice John Marshall
                                            Marbury v. Madison

In law school (or in high school civics), we are taught that Marbury v. Madison was the case that established the doctrine of judicial review, which we are told means that the Supreme Court can declare laws unconstitutional. And that's all we need to know for the purposes of civics class, and really, all most lawyers need to know about it, too. Because the kind of case the neo-cons are making for their activities only makes sense to argue at the extreme margins of the law -- where you either have tons of money to throw at establishing a case against the statute (or constitutional understanding) itself, or there's so much at stake that no price is too high to pay to win.

The neo-cons, then, will very simply be committing the exact same "crime" quite intentionally, for the express purpose of marching into court to try their luck, one more time, at convincing the courts that last time, the SCOTUS simply got it wrong. And this time, they'll be appearing before their own judges. Judges who came of age and received their training under the Nixon and Reagan deputies who invented the modern incarnation of this doctrine in the first place. So, yeah, the simple explanation for what they're doing is asking for a do-over. A finding that stuff really isn't illegal if the president does it.

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST:    The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

FROST:    These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST:    So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON:    Well, when the president does it that means that it is not illegal.

FROST:    By definition.

NIXON:    Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.
FROST:    So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON:    Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST:    Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON:    Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST:    But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON:    This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South--

FROST:    But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense--is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON:    No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

And this time, it's the province of Sam Alito -- Edwin "signing statement" Meese's protégé -- to say what the law is. And what would they like him to say it is? That it's not illegal if the president does it. Nixon never thought so. Does Rumsfeld? Does Cheney? Does Bush? Does Gonzales? Does Poindexter? Abrams? Negroponte? North?

Scalia? Thomas? Roberts? Alito?

Next:Why this portends a new constitutional order, and how broad the threat really is.