Analysts of the Constitution can easily identify the “express” powers delegated to the national government by the States (or more properly, the “people of the United States”). “Prohibited” powers are also clearly listed, if not always as easy to define. Going beyond these, there are the “implied” powers discovered by Chief Justice John Marshall in McCulloch v. Maryland. Those in favor of limited government begin to get leery when implied powers are brought up, but most of us have accepted them as inevitable, and there can be no argument that they have been exercised by the executive branch from Day One of the Republic, and cited by the legislative branch as well for many laws we limited government fans don’t like.

When it comes to the present debate over the Bush Administration’s spying, the warrant is the even less explicit claim that certain powers are “inherent” in a government simply by its nature. This claim makes us queasiest of all, but I don’t see how it can be denied. In time of war or certain natural disasters, the executive will act as he sees fit to preserve the Republic or to protect its people. He might act wisely or ill, but he will act, and will trust to History to justify him. During the recent kerfuffle over “torture,” John McCain came as close as it is possible to admitting this reality, when he said we should outlaw torture, but be prepared to do it anyway in scenarios like the “ticking bomb,” and count on post hoc justification.

Which brings me to the biggest problem with all the bitching and moaning over Bush’s actions: accountability. There is not a single soul reading this post, on the editorial boards of the nation’s newspapers, or among the analysts and pundits of our think tanks, with the responsibility of protecting the American people from terrorist attack. One might argue that the Senators and Representatives do have that charge, but one has only to observe one day’s debate in the House or Senate to be convinced that they cannot do it. Not only can they not either amend or defeat a piece of legislation like the Patriot Act (let me note that those complaining most vociferously that the present Act is unconstitutional were the ones preventing the passage of amendments softening its application. In other words, rather than allow the president a legislative victory, they were prepared to give us six more months of a worse law than the one before them), they can’t keep a secret. And in such a struggle as the one we are engaged in, secrecy is imperative.

Dangerous? Of course.

One could argue (I’ve done it myself) that the nation would be better off absorbing a World Trade Center attack every few years than infringing civil liberties to the extent required to prevent them. But that argument is irresponsible (using the word in its narrow sense). If anyone wants to make that argument, there is plenty of time before the filing deadline for Congress or the presidency. My judgment is that the American people would not tolerate such attacks and that any politician unwilling to authorize measures designed to minimize them would be soundly rejected at the polls.

Some also argue that they trust George, but would never trust Hillary. Again, I sympathize, but doubt that Bush’s fastidiousness on the question of spying would have any effect on Hillary. Every president who has had to act under threats of this kind has done what he thought was necessary, and never cared about precedent, particularly (as in this case) a negative precedent which must, by its nature, be unknown. (Already, similar actions taken by Jimmy Carter and Bill Clinton have been discussed in the press. Was George Bush aware of them? Did he care?)

My judgment (for the little it is worth) is that George Bush is engaged in the Middle East in an enterprise of colossal importance, and that he has a very good chance of succeeding. At the same time, he is struggling to prevent the kinds of attacks that traumatized the nation three and a half years ago. (Parenthetically, if Bush were nearly as Machiavellian as his critics claim, he would not permit warrantless spying, increasing the likelihood of another World Trade Center, which would strengthen his hand in other areas of foreign policy.) How much his chances would be diminished if Jay Rockefeller were allowed to vet his actions and approve them I don’t know. But that those chances would be diminished by a requirement for congressional concurrence I am certain.

I am a creature of Congress. For most of my adult life I have worked for, in or with members of Congress and their institutions. Even when I worked in the Executive Branch (and I am a three-time loser), I worked in Congressional Relations. In most struggles between the executive and legislative branches, I have always tended to take the legislature’s side. But in matters of defense, I’m simply not willing to risk the crop. I have absolutely no faith that the modern Congress can act, and certainly not in a timely manner.

All that said, it is good that there are critics. In the irrationality of government, it is essential that questions be raised and that issues be debated. All I ask is a little humility from those who do not sit at the desk in the Oval Office, with the responsibility (real, if not constitutional) of making these decisions. I’m actually willing to cut those of us outside government a little more slack, because we have not been elected by our peers to defend the nation from enemies foreign and domestic. My real animus is directed at the elected officials who “piddle, twiddle, and resolve, and not one damn thing do [they] solve.” They refuse to tell us what they would do, or what should be done, in the midst of their carping about what is being done.