At bottom, though, the problem raised by this argument is more political than legal. The administration began making the claim to an unfettered commander-in-chief-style presidency in a rather low-key way -- as if it were a given -- in late 2001, after a few brave souls had dared to question the conditions under which it was detaining enemy combatants. It has repeated it like a mantra ever since, accompanied by the refrain that we are at war -- a war not specifically in Iraq or Afghanistan, but of a long-term global nature and on terrorism.

Only in June 2004 did the public learn that this argument stemmed from the legal and political theories of a young Justice Department lawyer, John Yoo. On September 25, 2001, he wrote in a memo to the President that, even if the congressional Authorization to Use Military Force had never existed, no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."

Astoundingly, it is the absolutely radical theory of presidential powers in this memo, clearly espoused by the President, the Vice President, and their senior staff, but written by an extreme conservative whose views in the now infamous "torture memo" have largely been dismissed by those inside and outside the administration, that is the fundamental flaw in our "program" for national debate. It is this theory that has trapped us in an infinite loop of discussion about issues that rational persons of good faith should be able to resolve: the obviously illegal surveillance of American citizens; prolonged detentions without due process; renditions to countries known for their abysmal treatment of prisoners; and, most shamefully, our own adoption of torture. But until we "debug" this program by fearlessly and unflinchingly addressing the President's theory of executive power, and its unstated false premises -- especially the claim that we are at war by virtue of an undeclared, undefined, and unending "war on terror" -- we will all continually find ourselves at different places on the same infinite loop.

It should not require courage to insist on an honest debate about issues that are substantial and serious. It should not require courage to stand firm in the face of juvenile personal attacks on one‘s allegiance to the United States. But, of course, it does. For that type of courage, we need patriots, not politicians -- strength, not just strategy. So far, in the Senate, Wisconsin's Russ Feingold, California's Barbara Boxer, and Iowa's Tom Harkin have shown themselves to be patriots in calling for censure of the President as a result of his blatantly illegal NSA surveillance operation. That is a total of three. There must be more. We look forward to hearing from you soon.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California. Her pieces have appeared in The Nation magazine, the L.A. Times, Salon, and Mother Jones. She writes regularly for TomDispatch. She may be contacted at ElizabethdelaVega@Verizon.net

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