And yet, despite the carnage, as Frank Rich pointed out last Sunday (The Wiretappers That Couldn't Shoot Straight), the New York Times reporters who finally broke the NSA story did so based not on one or two sources but on "nearly a dozen current and former officials." Doug Ireland laid out at his blog recently how, despite fears of possible prosecution -- the first thing the President did in the wake of these revelations was to denounce the "shameful act" of leaking and the Justice Department almost immediately opened an investigation into who did it -- one of them, former NSA analyst Russell Tice, has gone very public with his discontent. He has already been on Democracy Now! and ABC's Nightline, saying that "he is prepared to tell Congress all he knows about the alleged wrongdoing in these programs run by the Defense Department and the National Security Agency in the post-9/11 efforts to go after terrorists." He claims that the NSA spied on "millions" of Americans, including, it was revealed recently, a Baltimore peace group.

The war with the bureaucracy and even, to some extent, with the military -- high-level officers, for instance, clearly leaked crucial information to Rep. Murtha before his withdrawal news conference -- will certainly continue this year, probably at an elevated level. The CIA has been a sieve; the NSA clearly will be; at the first sign of pressure, expect the same from career people in the Justice Department; and an unhappy military has already been passing out administration-unfriendly Iraq info left and right. Administration punitive acts only drive this process forward. Any signs of further administration weakness will do the same.

The "warriors" in the bureaucracy will, in turn, fuel further media and congressional criticism. Congress, worried about next year's election, is an exceedingly fragile pillar of support for the President. Conservatives, as Todd Gitlin pointed out in a recent Los Angeles Times op-ed, are alienated or worse; certain Republican senators are angry over the way the administration is sidelining Congress. Even some right-wing judges have been acting out. And, of course, there's the possibility that, in some chain-reaction-like fashion, the dike will simply burst and we will catch sight of something closer to the fullness of Bush administration illegality -- sure to be far beyond anything we now imagine.

4. Election 2006. Count on it being down and dirty. This could be a street brawl because, with the Republican loss of even one house of Congress, the power to investigate is turned over to the Democrats as we head into a presidential election cycle.

Consider points 1-3 above: Iraq as a rolling, roiling, ongoing disaster, Republican congressional representatives and administration figures under indictment, bureaucrats leaking madly, possible seats put into play in Texas, presidential polls dropping -- all having the potential to threaten an administration already filled with the biggest gamblers in our history and capable of doing almost anything if they think themselves in danger. So what can the President and his pals draw on?

Administration Wildcards

Court-packing: As Noah Feldman pointed out recently in the New York Times Magazine, the rise of the imperial presidency has a history that goes back to Thomas Jefferson's decision to conclude the Louisiana Purchase, while the presidency's outsized "war powers" go back at least to Abraham Lincoln. The President has long had powers unimagined by the founding fathers, but the Bush administration still represents a new stage in the obliteration of a checks-and-balances system of government. Last week, in an important, if somewhat overlooked, front-page piece in the Wall Street Journal ("Judge Alito's View of the Presidency: Expansive Powers"), Jess Bravin reported on a speech Sam Alito gave to the right-wing Federalist Society in 2000 in which he subscribed to the "unitary executive theory" of the presidency ("gospel," he called it) which puts its money on the supposedly unfettered powers of the President as commander-in-chief. This theory has been pushed by administration figures ranging from the Vice President and his Chief of Staff David Addington to former assistant attorney general and torture-memo writer John Yoo. As Alito put the matter in his speech: "[The Constitution] makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power -- the whole thing." And Yoo put it even more bluntly while debating the unitary executive theory recently. In answering the question, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?" he responded, "No treaty."

Evidently, John Roberts subscribes to the same view of presidential powers (as Harriet Meirs certainly did, at least when it came to George Bush). In other words, the administration is trying to pack the Supreme Court with judges who are, above all, guaranteed to come down on the side of the President in any ultimate face-off with Congress or the courts. This is surely the real significance of the Alito nomination, should it go through. In any Constitutional crisis-to-come the "commander-in-chief" is trying to predetermine how things will fall out if his own power is at stake.

Terrorism: From September 11, 2001, the terrorism/fear card has certainly been the most powerful domestic weapon in the administration's arsenal. In the event of a major (or several smaller) terrorist strikes in this country, the Bush administration could certainly be the major beneficiary, but even that is no longer a given. History tends not to happen quite the same way twice and no one knows whether, under the shock of such an event or events, the post-9/11 moment would simply be repeated or whether Americans might feel that this administration had completely betrayed them. A terrible war, lousy government, hideous crisis management, and then, on the one thing they swore they did best -- protecting the country from terror -- failure. Still this is certainly an administration wild card.

Wag the Dog Strategies: In a crisis of power, there is no reason to believe that the officials who already led us into Iraq might not be willing to gamble on a Wag the Dog strategy – that is, launching an operation they had been hankering for anyway that might also turn attention elsewhere. Rumors and speculation about a massive air attack on Iran (or on "regime change" in Syria) have been kicking around since at least the spring of 2005. These have begun circulating again recently. Such a thing is certainly possible (more so, obviously, should Benjamin Netanyahu happen to win the Israeli election in March), but whether the effect of this on the administration's fortunes would be positive for long is also unknown. It certainly seems one path to madness, not just in Iraq but also on the oil markets. (If you happen to be a devotee of oil at $100 a barrel, you might quickly get your wish.)

Is a Constitutional Crisis in the Cards?

Until 2005, it wasn't that the Bush administration didn't make more than its share of mistakes; thanks to 9/11, it simply had plenty of wiggle room. It could always turn attention elsewhere. It always had the fear and terror cards ready to be played. These days, turn people's attention elsewhere and they're likely to see yet more disaster, corruption, incompetence, and illegality. In 2006, the administration has a lot less wiggle room than it used to. Polling figures reflect that vividly. When new disasters hit, whether in Iraq or New Orleans, it's becoming harder to take American eyes off them.

Let me then offer one of those predictions -- surrounded by qualifications and caveats -- that all writers should be wary of. If in a bitter, dirty mid-term election, filled with "irregularities," one house of Congress or both nonetheless go to the Democrats, which I believe possible (despite their low polling figures at the moment), expect the investigations to begin. Expect as well that the Bush administration will then trot out that "obscure" presidential philosophy of power and claim that the Congress has no right to investigate the President in his guise as Commander-in-Chief.

That is why the Alito nomination is so crucial and why 2007 may prove the year of constitutional crisis in the United States.

Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and the author of The End of Victory Culture, a history of American triumphalism in the Cold War. His novel, The Last Days of Publishing, has recently come out in paperback.

Tom Engelhardt  

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