Perils of an unchecked executive

Jonathan Hafetz

09:03 AM EDT on Tuesday, May 8, 2007

JONATHAN HAFETZ

NEW YORK -- REMARKABLY, President Bush has not learned any lessons from the excesses of his “war on terrorism,” now in its sixth year. Even though the president’s own secretaries of state and defense have warned that the prison at Guantánamo is undermining America’s credibility, the president continues to assert the powers of a king by detaining people without charge and without court review whenever he deems them “enemy combatants.” This strategy contradicts America’s core values and undermines the fight against terrorism.

In 2004, the Supreme Court sensibly defined the term “enemy combatant” as an enemy solider who engages in combat against American troops on an actual battlefield. The court also ruled that the United States must provide a legitimate process to make sure we are detaining the right people, not innocent tourists, embedded journalists, or local aid workers swept up amid the chaos of war where mistakes are easily made.

The administration, nevertheless, has ignored these limits in three important ways. First, it has defined “enemy combatant” in terms so sweeping that it would allow the president to lock up a little old lady in Switzerland who gives money to a charity which, unbeknown to her, is secretly funneling money to terrorist organizations.

Second, it has failed to follow the Geneva Conventions and the U.S. military’s own regulations which require a prompt hearing for detainees seized on the battlefield to separate innocent civilians from actual combatants. To make matters worse, only 5 percent of the detainees at Guantánamo were captured by U.S. forces; 86 percent were taken into custody by Pakistani or Afghan forces at a time when the U.S. was offering large financial bounties for the capture of any Arab terrorist.

And third, the administration has blocked review of its detention practices by denying habeas corpus, which requires a court to examine the factual and legal basis for a prisoner’s confinement. As a result, the administration has prevented any judge from determining whether the individuals it has jailed are actually terrorists — a position that speaks volumes about the government’s lack of confidence in its evidence.

Regrettably, last fall Congress increased, rather than curbed, the president’s power grab by passing the Military Commissions Act. This act not only weakens longstanding rules against illegal detention and torture, but also prevents the federal courts from enforcing those rules by eliminating habeas corpus.

Unchecked executive detention has created a prison beyond the law at Guantánamo, where nearly four hundred individuals remain detained without charge or due process. Though labeled as the “worst of the worst,” according to the government’s own data, only 18 percent of the detainees at Guantánamo have any definitive affiliation with al-Qaida or the Taliban. But since the government never has to present its evidence in a court of law, errors go uncorrected.

The president’s quest for ever greater power is not limited to Guantánamo, but extends to the United States. Mr. Bush maintains that he can jail without charge an individual living in this country, whether an American citizen or not. As a result, a college student whose former roommate later joins the Taliban, a chief executive who donates money to an organization he believes is helping to build hospitals in the Middle East or a person who teaches English to the child of an al-Qaida member, all may be permanently imprisoned as “enemy combatants” without any proof of guilt.

To be sure, it is difficult to imagine any judge tolerating this state of affairs. But the problem is that without habeas corpus no judge can ever review the government’s evidence, leaving detainees to languish in prison based solely on executive say-so.

The issue is not whether the president acts in good-faith when he deprives people of their liberty. The genius of our Constitution is that it does not entrust any president with that awesome power but instead sets up a system of checks and balances that prevents any person from placing himself above the law.

The president’s “trust-me” approach to civil liberties does not just defy America’s best traditions. It robs the fight against terrorism of the legitimacy and credibility it needs to succeed.

Over the last five years, Guantánamo has become a lightning rod for criticism and short-hand for the abuse of power. Our closest allies have denounced Guantánamo as a “shocking affront to the principles of democracy,” while Secretary of Defense Robert Gates recently called for the prison’s closure.

Guantánamo makes it more difficult for America to demand that other countries obey the rules by showing we do not follow those rules ourselves. The same goes for the practice of “extraordinary rendition” in which the United States hands individuals over to countries like Syria and Egypt for torture. Like the detentions at Guantánamo, such practices put Americans at risk by encouraging other nations to treat our citizens as we have treated theirs.

The damage wrought by the administration’s wrong-headed policies cannot be remedied overnight but will require a concerted effort to develop a rights-respecting approach to counter-terrorism. The first step is an easy and obvious one: Restore habeas corpus, the greatest safeguard of individual liberty and check upon arbitrary executive power.

Restoring habeas will demonstrate that America gives all prisoners a meaningful chance to prove their innocence. Nothing less can suffice in a country committed to due process and the rule of law.

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at New York University Law School, is counsel to several detainees and is writing a book on post-9/11 detentions to be published by NYU Press.

Living Under the Guillotine's Blade

April 27, 2007

Imagine you see a man on his knees, arms outstretched, with his head resting on a wooden block. Ten feet above his head, the sharp edge of a guillotine blade hangs suspended. The blade is held back by a rope that is visibly frayed and weak. It appears the rope might snap at any moment, and the blade will descend to plunge through the man's neck. Blood will spurt over the platform on which the guillotine sits, and the man's head, brutally shorn of the rest of his body, will thud onto the darkened platform below, onto the wood stained with the blood from earlier victims. This scene has been enacted many times before.

One aspect of the drama playing out before you is exceptionally strange. No one is forcing the man to remain on his knees, with his head calmly resting on the block. He could get up and walk off the platform at any moment. Yet he doesn't. He appears to be entirely unconcerned about the fatal danger above him, the blade that hangs there with infinite patience, silently waiting for its moment. There are others watching this scene with you. Some of them, like you, shout out warnings to the man. Still he does not get up. You and the others have been unable to move the man, or to disable the blade. Only the man with his head on the block can save himself. He won't. He stays on his knees, with his head on the block. With every moment that passes, the rope holding the blade back weakens. You know, as the man himself knows, that the rope will break eventually.

Yet he stays there. Warnings continue to be shouted; he continues to ignore them. The rope frays still more. Some people in the gathered crowd finally leave. The tension had become unbearable to them. But you and a few others remain. Surely, you think, the man will get up eventually, before the rope breaks. Why would he remain there, when he knows that will mean his certain death? And still he doesn't move.

The minutes pass, and turn into hours. Nothing changes. The man remains in position. The blade waits. The only unknown is the precise moment when the blood will begin to flow, the moment when another life will be brutally destroyed, as so many have been destroyed before.

You feel compelled to remain, and to watch. You are unable to turn away. Death hangs in the air.

********************

This is how we live in America today. The final destruction of liberty, and of life itself, could begin at any moment. Yet we act like the man with his head resting on the block. We seem to believe there is nothing especially unusual in our circumstances, nothing that requires us to take action. Life goes on as it always did. Like the man under the blade, we could choose to alter our fate. We will not. We believe, as perhaps the man under the blade believes, that our situation isn't that bad; we'll be able to get through this, just as we always have. We forget all those who have gone before us, all those who have died bloody and painful deaths. But, we may tell ourselves, we are different from all those others. Their fate will not be ours, because we are special and unique. We forget that all the earlier victims thought the same.

Perhaps it is the case that the man with his head resting on the block isn't very intelligent. It is possible he doesn't understand that the rope holds the blade back, and that when the rope breaks, the blade will descend and cut through his flesh. At this moment in history, it is indisputably the case that Americans generally, and the political class and most of those who write about politics (including almost all bloggers), are not very intelligent. They appear to understand almost nothing about political principles, or how they operate. Gathering dangers hold no reality for such people. They will understand the guillotine's purpose only when the blade first touches their necks, and the blood finally gushes out. Yes, they will certainly comprehend the danger then, when all possibilities for action have been destroyed.

The man in my story has only one blade suspended above him; we have at least four blades hanging over us, any one of which could be fatal.

The first blade, probably the most dangerous one, is the Military Commissions Act. What is it that people fail to understand about this abomination? I know that I and others have explained its immense dangers and its fatal implications numerous times; perhaps we haven't explained it very well. But I don't know how to say it any more plainly than this:

There is no question that the Military Commissions Act, given the language it now contains, grants -- in principle -- full dictatorial powers to the executive. As I explained in the earlier essay, the executive and certain entities it controls can designate anyone, including any American citizen, as an "unlawful enemy combatant." That person can then be imprisoned for the rest of his life, with no recourse whatsoever. Period.

...

The critical point is what, in principle, the grant of power includes. As noted, the grant is absolute: it includes everything. As I have pointed out, the determination of the Bush administration to achieve absolute power has been indisputably clear since shortly after 9/11. And this is hardly the first time that I and others have noted that the mechanisms for a complete dictatorship have now been put in place.

...

With proper preparation, and with the requisite understanding that freedom itself was imperiled, the Democrats could have achieved these aims. All of us would be forever in their debt. Surely liberty itself is worth such a battle, isn't it? But the Democrats did none of these things, so the bill passed. Thus, they share in the guilt and responsibility. The guilt and responsibility that accrues to the Democrats is not as great as that of the Republicans, but it is surely great enough. And when your freedom, and that of your family and friends, and that of every single one of us, is destroyed in this manner, how do you even go about measuring degrees of guilt? How do you say this failure is worse than that one? The bill passed. They all failed, Republicans and Democrats alike. In principle, torture was enshrined and liberty was destroyed.

...

Some argue that the Supreme Court will find the act, or at least certain key provisions, unconstitutional. That, too, is a hope, but I myself am far from certain that the Court will rule in such a manner. In any event, we do not know what the ultimate outcome will be as far as the judicial system is concerned.

So we are confronted with one stark certainty, opposed by fragile and uncertain future hopes. We know the Military Commissions Act destroys liberty at its very foundation. We do not know if this fatal injury will ever be ameliorated. The Act should have been stalled at the very least. It was not.

Destroying the very basis of liberty is not an event that occurs every day. Mark the date. Historians may well have cause to note it.

The Democrats have proposed the "Restoring the Constitution Act," although its passage hardly appears to be a matter of great urgency to them. If they do not view the destruction of the foundation of liberty as a genuine emergency requiring almost instantaneous action, what would constitute an emergency? Beyond this, proposing new legislation to "fix" the original bill is precisely the wrong way to fight this battle, as I explained in "America, Now Without the Revolution":

If we genuinely seek to walk the long road back to a constitutional republic, the Act must be repealed. It must be wiped from the books completely. Instead, the Democrats propose to enact another bill, "correcting" the errors in the first. Inevitably, this will lead to endless debates, in Congress, in the courts and everywhere else, about how the two bills should be construed in relation to each other. These debates and confrontations will go on for years -- and all the while, the Military Commissions Act will remain the law of the land, a law that destroys the very concept of law in terms of what it had once meant.

You do not "fix" evils of this kind. You obliterate them as required. It is required here. At long last, let the Democrats understand the nature of this battle, as I discussed it in the earlier essay. Let them educate themselves, other members of Congress, and the American public. Let them attempt to mobilize Americans to demand that the Act be repealed, on a scale and in a manner that cannot be ignored. All our political leaders endlessly praise those who give their lives in defense of liberty, as they should when it is true. (It is not true in Iraq.) If they are sincere in that praise to any degree at all, can't they fight a legislative battle to restore the basis of liberty? They are being asked to take up only intellectual arms. For God's sake, they can do it sitting down the entire time.

But, you say, Bush will veto legislation repealing the Military Commissions Act. I initially note that Bush is equally likely to veto any attempt to "fix" that Act. But if the Democrats waged the necessary campaign and enlisted a significant part of the American public on their side, then let him. He will stand alone, revealed as the enemy of liberty and civilization that he is.

But here is where stupidity enters the picture. Just as the man does not grasp the operation of the guillotine or the fact that, if he does not move, the blade will kill him, our political class (and most writers and bloggers) appear not to understand the profound dangers of the Military Commissions Act because of only one fact: its full powers have not yet been implemented. In an earlier essay, I quoted Jacob Hornberger on this point. Hornberger deconstructs two common objections to the statement of fact that the Executive now possesses full dictatorial powers. With regard to the second objection, he writes:

"Well, then, where are the mass round-ups, and where are the concentration camps?"

Again, people who ask that type of question are missing the point. The point is not whether Bush is exercising his omnipotent, dictatorial power to the maximum extent. It's whether he now possesses omnipotent, dictatorial power, power that can be exercised whenever circumstances dictate it — for example, during another major terrorist attack on American soil, when Americans become overly frightened again.

I went on to note:

I've made this point repeatedly over the last several years, and it is only a measure of the remarkably primitive quality of our national conversation that so many Americans seem incapable of grasping it.

To put the point the other way, which will hopefully penetrate the wall of resistance erected by so many people: the only reason you aren't in a concentration camp right now is because Bush hasn't decided to send you to one -- yet. But he claims he has the power to do so -- and there are almost no voices of any prominence to dispute the contention. What is even worse than the loss of liberty is the fact that most Americans aren't even aware that the loss has occurred. If there are any national leaders who understand these issues and have the courage to fight for our freedom here at home, they ought to realize that the battle must be waged now. Given the hysteria that followed 9/11 -- and the hysteria that would certainly follow another terrorist attack in the U.S. of the same or even greater magnitude -- protesting against round-ups at that point would be entirely futile, and would come far too late.

Hornberger's comments and mine on this issue were written before passage of the Military Commissions Act. Bush had asserted these dictatorial powers earlier and utilized them, but only very selectively. The Military Commissions Act codified those powers, and made dictatorship and torture the law of the land.

But to watch the actions of our political class and to read most political writers, none of this requires urgent action. The guillotine has no reality for us; it will become solid only when we feel the touch of the blade. You may be certain of one fact: when powers of this kind are granted to political leaders, men and women prepared to use them in full will come along sooner or later, probably sooner in our case and almost certainly after another major terrorist attack within our own shores The round-ups will come, as will the concentration camps, as will comprehensive censorship. The executions without trial will come, as well. The torture is already here, and has been for some time.

The second blade is related to the first one; it could be fatal on its own, and it would certainly be fatal in conjunction with the Miitary Commissions Act. I will let one of the rare writers who grasps these dangers consistently, whether they are proposed and supported by Republicans or Democrats, explain it. In a new article, Jim Bovard writes:

The Defense Authorization Act of 2006, passed on Sept. 30, empowers President George W. Bush to impose martial law in the event of a terrorist “incident,” if he or other federal officials perceive a shortfall of "public order," or even in response to antiwar protests that get unruly as a result of government provocations.

...

It only took a few paragraphs in a $500 billion, 591-page bill to raze one of the most important limits on federal power. Congress passed the Insurrection Act in 1807 to severely restrict the president’s ability to deploy the military within the United States. The Posse Comitatus Act of 1878 tightened these restrictions, imposing a two-year prison sentence on anyone who used the military within the U.S. without the express permission of Congress. But there is a loophole: Posse Comitatus is waived if the president invokes the Insurrection Act.

Section 1076 of the Defense Authorization Act of 2006 changed the name of the key provision in the statute book from "Insurrection Act" to "Enforcement of the Laws to Restore Public Order Act." The Insurrection Act of 1807 stated that the president could deploy troops within the United States only “to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.” The new law expands the list to include "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition"—and such "condition" is not defined or limited.

These new pretexts are even more expansive than they appear. FEMA proclaims the equivalent of a natural disaster when bad snowstorms occur, and Congress routinely proclaims a natural disaster (and awards more farm subsidies) when there is a shortfall of rain in states with upcoming elections. A terrorist "incident" could be something as stupid as the flashing toys scattered around Boston last fall.

The new law also empowers the president to commandeer the National Guard of one state to send to another state for up to 365 days.

...

The story of how Section 1076 became law vivifies how expanding government power is almost always the correct answer in Washington. Some people have claimed the provision was slipped into the bill in the middle of the night. In reality, the administration clearly signaled its intent and almost no one in the media or Congress tried to stop it.

...

Section 1076 was supported by both conservatives and liberals. Sen. Carl Levin (D-Mich.), the ranking Democratic member on the Senate Armed Services Committee, co-wrote the provision along with committee chairman Sen. John Warner (R-Va.). Sen. Ted Kennedy openly endorsed it, and Rep. Duncan Hunter (R-Calif.), then-chairman of the House Armed Services Committee, was an avid proponent.

...

This expansion of presidential prerogative illustrates how every federal failure redounds to the benefit of leviathan. FEMA was greatly expanded during the Clinton years for crises like the New Orleans flood. It, along with local and state agencies, floundered. Yet the federal belly flop on the Gulf Coast somehow anointed the president to send in troops where he sees fit.

"Martial law" is a euphemism for military dictatorship. When foreign democracies are overthrown and a junta establishes martial law, Americans usually recognize that a fundamental change has occurred. Perhaps some conservatives believe that the only change when martial law is declared is that people are no longer read their Miranda rights when they are locked away. "Martial law" means obey soldiers’ commands or be shot.

...

Some will consider concern about Bush or future presidents exploiting martial law to be alarmist. This is the same reflex many people have had to each administration proposal or power grab from the Patriot Act in October 2001 to the president’s enemy-combatant decree in November 2001 to the setting up the Guantanamo prison in early 2002 to the doctrine of preemptive war. The administration has perennially denied that its new powers pose any threat even after the evidence of abuses—illegal wiretapping, torture, a global network of secret prisons, Iraq in ruins—becomes overwhelming. If the administration does not hesitate to trample the First Amendment with "free speech zones," why expect it to be diffident about powers that could stifle protests en masse?

Note the crucial dynamic identified by Bovard, one I have noted on many occasions: the government is granted massive powers "for our own good," and to "protect us." An emergency arises, and the government abjectly fails to protect us. The failure is used to argue that the problem is that the government didn't have enough power, so it is granted still more expansive powers. Then the government fails again, at which point it is given still further powers. This has been the pattern in the United States since the late nineteenth century, as it has been the pattern in many other countries in the past. At every step, almost all politicians and writers cheer as the leviathan state grows, and as individual liberty is destroyed. The number of times this pattern can be successfully repeated depends upon how hungry for power the political class is, and how ignorant (or stupid, if you will) the public is. Our political class has a boundless hunger for power which will remain unsatisfied until its power is absolute, and the American public adamantly refuses to learn a single damned thing. Our road to Hell is open and unobstructed.

The reaction to the first two blades on the part of politicians and most political writers is also the same: there is next to response at all. As Bovard notes, the president can declare martial law because of "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition" -- which means he can declare martial law whenever he wants. Since we have a press that primarily acts as a handmaiden to the powerful and which, with very rare exceptions, transmits government propaganda to a degree that effectively makes it another branch of government, who would challenge the president's assertion of such powers? And we have seen the public's ready acceptance of grievous restrictions of freedom in the hysteria following 9/11, and that acceptance continues today. When is the last time you heard of anyone seriously protesting the government's idiotic search protocols at an airport, or objecting to any of the much more serious incursions into what had once properly been regarded as a citizen's zone of privacy? We have become a nation of whining, sniveling cowards. When we are sufficiently scared, and when the government tells us it acts only to "make us safe," we will do whatever we are ordered to do. If we ask any questions at all, it will only be much later, when the liberties we have so blithely surrendered cannot be recovered.

That the president can declare martial law whenever he wishes, on a whim or to finally realize his dreams of absolute power (and I know this may shock you, but such dreams do not belong only to Republicans), causes virtually no one to think that action to prevent such a catastrophe must be taken -- and that it must be taken now. Many Americans don't even know this blade is there; most of those who do see it appear not to care at all that it exists. When the troops appear in your city and on your street, and when some of your neighbors and friends begin to disappear (remember the first blade), why, then you might care, when there is nothing whatsoever to be done about it, lest you too be spirited away in the dead of night.

The third and fourth blades are forged in the realm of foreign affairs, but their effects extend to the United States on the domestic front. Stupidity puts in another appearance here. Most Americans, including our governing class and our commentators, cannot grasp the operation of political principles when they are confined here at home. When connections must be made between events overseas and domestic politics, our brains are entirely incapable of making the integrations. In addition, our narcissism is almost perfect: when death and chaos are visited upon peoples abroad -- peoples who are almost without exception darker than we are (or at least, darker than most of our leaders are), poor, and largely defenseless -- we barely notice. It's not as if Americans were being killed; even then, as the death toll of Americans in Iraq continues to rise, we see no reason to bring matters to a quick conclusion. As long as it's over there, what do we care?

Every prominent politician, Democrat and Republican, agrees that we have the "right" to attack Iran if Iran does not conduct itself in accordance with our demands. The source of this "right" has never been explained, since it cannot be explained. This is an axiomatic truth for our governing class, and it applies to every country in the world that cannot respond to a U.S. attack in a serious, large-scale manner. Note Hillary Clinton's comments only a couple of days ago about Iran, and our "right" to take "offensive military action." I have explained in some detail why an attack on Iran in the current circumstances and in the foreseeable future would be a monstrous crime; see "Morality, Humanity and Civilization: 'All that remains...are memories.'" But keep the possible consequences in mind: many thousands dead, and millions dead if we were to use even "tactical" nuclear weapons; spreading chaos across the Middle East and very likely beyond; possible economic calamity, which could lead to a significant collapse of the U.S. economy, as well as the economies of many other nations, and on and on. The consequences would spread around the globe, and would be felt for decades to come.

There is still a further result, beyond the fact that an attack on Iran would make us the equivalent of Nazi Germany and its attack on Poland. I discussed it in the second part of my "Dispatch from Germany" series, where I again quoted Jim Bovard:

Attacking Iran will put American civilians in the terrorist crosshairs, with little or no federal Kevlar to protect them. The key question is not whether terrorists will attack but how the American people will likely respond and how politicians could exploit the situation.

There is no reason to expect the American people to be less docile than they were after 9/11. The percentage of Americans who trusted the government to do the right thing most of the time doubled in the week after 9/11. It became fashionable to accuse critics of Bush administration policies of being traitors or terrorist sympathizers. ...

The Bush administration has a record of exploiting terrorist attacks to seize nearly boundless power. After the 9/11 attacks, the Bush administration effectively temporarily suspended habeas corpus, railroaded the Patriot Act through Congress, authorized warrantless domestic wiretaps, and nullified restrictions on torture by the CIA and U.S. Military. The Bush administration now claims that the Authorization to Use Military Force resolution passed by Congress in September 2001 raised the president’s power above the Bill of Rights.

If there are new terror attacks at home, how much more latent presidential power will administration lawyers claim to discover within the penumbra of the Constitution? How broad would the roundup of suspects be? How many years would it be until Americans learned of how much power the government had seized? Is there any reason to expect that a series of attacks would not quickly result in attempts to proclaim de facto martial law?

...

If Bush does bomb Iran, the chain reaction could wreck American democracy. The Bush administration shows no signs of developing either an allergy to power or an addiction to truth. The American republic cannot afford to permit a president to remain above the law and the Constitution indefinitely. Anything that raises the odds of a terror attack reduces the odds of reining in the government.

So you see how the third blade, an attack on Iran, ties into the second blade, the president's unlimited ability to impose martial law, which ties into the first blade, the Executive's ability to declare anyone an enemy of the state on any basis or no basis at all, and then to imprison and torture them for the rest of their lives.

I have suggested a number of actions that might be taken in an attempt to prevent an attack on Iran. A few people have noted that post, and some have followed through on some of those suggestions individually. But no one and no organization in this country is trying to motivate a sufficient number of people to take action on the scale required. Given the frequency with which our politicians announce that the possibility of a nuclear-armed Iran is too great a danger to "civilization" to be "tolerated," most of us have to know this blade is there. We see it, and we don't care. The blade hangs over our heads, and over the entire world. We will not move.

If we are fortunate enough to make it through the remainder of Bush's term without a U.S. attack on Iran, it will not be because of anything anyone has done to prevent it. No one has done anything to prevent it. It will simply be because we were lucky. But as the remarks from Hillary Clinton and every other leading Democrat make clear, the danger will not pass away with Bush's exit from the national stage. As long as our governing class and the foreign policy establishment remain committed to American global hegemony as our foundational foreign policy goal (see "Dominion Over the World"), I consider it certain that the U.S. will attack Iran at some point, if not during this administration, then probably during the next one.

The fourth blade is, of course, the unending occupation of Iraq. As I explained yesterday, it will be unending, even if the number of American troops is reduced to 50,000 or 70,000 in the next few years. We will be there for decades into the future; no prominent politician, Democrat or Republican, opposes that plan, which was the plan from the outset. As a number of knowledgeable people predicted prior to the Iraq invasion, Iran has been the primary victor in this imperial disaster. The episode with the British sailors recently demonstrated, as have any number of other incidents, that the longer we remain in Iraq, the greater the likelihood that some incident, real or manufactured, will lead to open conflict with Iran, and to the attack on Iran that every leading politician seems to long for. Our ruling elites are determined to effect "regime change" in Iran in any case, but a border incident or one of some other kind might hasten the schedule, and make a U.S. attack easier to "sell" to a gullible American public.

So we see how the fourth blade connects to the third, and how all the blades interconnect and multiply the dangers. We have already destroyed Iraq, and we may yet destroy Iran and much of the Middle East. We may cause an international economic collapse, or severe economic dislocation at a minimum. We may see the final end of liberty here at home, and the installation of a dictatorship via a declaration of martial law.

And almost no one speaks of the incomprehensible catastrophes that lie in wait. Almost no one takes action to prevent even one of them. Our lives proceed as if nothing at all unusual is transpiring in our world, either abroad or at home. Occasionally, a few people shout warnings. They are almost entirely ignored.

The blade is suspended above us. With every moment that passes, the rope that holds it back frays and weakens still more.

Death hangs in the air.

We will not move.

posted by Arthur Silber at 10:54 AM

Sic Semper Tyrannis

April 23, 2007 Issue
Copyright © 2007 The American Conservative

by Llewellyn H. Rockwell Jr.

Maybe the authors of the Federalist Papers were liars. Maybe they were just engaged in political propaganda in order to shove through the Constitution. In secret, perhaps, they were plotting a Leviathan state with a president who can do all that the Bush administration claims he can, which pretty much amounts to whatever Bush wants to do.

If that was the case, they knew better than to advertise it. The Constitution would never have passed. Fear of a powerful president was one of the main reasons that people were fearful of abandoning the Articles of Confederation, which had no executive to speak of.

Recall that the founders had long tangled with the king in England. The entire Declaration of Independence was a personal attack on him and his policies. These were the days of “personal states” in the sense that a government was still thought to be the private property of a monarch. The bad aspect of this system was that the king could become a tyrant. The good aspect was that people knew whom to target to end the tyranny or, in the case of the founders, whom to denounce in the course of a political separation.

As an alternative to the personal executive state, the founders (perhaps naïvely) believed that they could create a Roman-style republic with a twist. There would be a head of state, but he would be controlled by a legislature. In fact, controlling the president would be the main job of the legislature. The founders went this one better by refusing to invest much power in the central government. Instead, the powers were decentralized and belonged to the member states.

The anti-federalists were skeptical. How can you create a presidency and not expect it to become corrupt? Alexander Hamilton was absolutely reassuring in Federalist 69. He said that the president bears no resemblance at all “to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York.” He concedes that the president has some resemblance to the king of Britain, but there are important and critical differences. He would only be president for four years, which is too little time “for establishing a dangerous influence in a single State.”

He raises a point that was very much central to the minds of that generation. A king cannot be removed from office through peaceful means. In contrast, the president “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”

Yes, said Hamilton, the president is commander in chief of the military. But this power is only “occasional”: when the legislature has authorized the military for actual service. He has no power to declare war or to raise and regulate armies. All these powers “appertain to the legislature.” Finally, he reminds us, if any powers are abused—such as the power of pardon—the president can be impeached immediately.

One gathers from these passages a vision of the president as a temporary manager, doing only what the legislature approves, always under the relentless threat of impeachment. Presidents would come and go, and they would be in fear of the legislature. One misstep and they could be tossed out. Oh, and by the way, the president can’t get rid of the legislature except in one narrow case: he can adjourn them when they otherwise can’t agree on how or when to leave.

What about his powers? He can negotiate treaties and commercial agreements. He can welcome ambassadors. Everything else can only be done with the advice and consent of the Senate.

Was Hamilton a liar? He is usually presented as the advocate of presidential supremacy and certainly he went much farther than the Jeffersonians in his view of government. He was an extremist by any standard. He favored leviathan by comparison to the anti-federalists. And yet, from his own writings, the president in his vision of the Constitution is nothing more than a hired manager with few powers, and those not trivial are subject to the legislature. If he abuses power, he goes to the gallows in the republican fashion: he is impeached.

How does this contrast with the view of the Bush administration? It is opposite in every respect. Consider the claim of John Yoo, author of The Powers of War and Peace, the bible of the Bush administration’s claim of totalitarian powers in war, and the reputed author of most of the Bush administration’s torture policies. Yoo’s book is a twisted mess, an attempt to justify reading the founding period in an opposite way from its historical reality. It’s like arguing that King Lear is a comedy, that Beethoven was second rate, or that the Bible endorses Satanism. There is always someone around to make any crazy claim you want, and if you are the ruling party, intellectuals will crawl out of the woodwork to say what you want them to say.

In any case, this book by Yoo dismisses the whole of what Hamiliton says in Federalist 69 as “rhetorical excess.” And an article in the Boston Globe quotes him as saying that “Fed 69 should not be read for more than what it is worth.” Why? Because all presidents since FDR have used the imaginary war power to do their dirty tricks.

This is an interesting argument. It says that because some tyrants have violated the Constitution, all presidents should presume the right to be tyrants in the manner in which the Constitution’s framers tried to guard against. Now if some intellectuals set out to say that the Constitution is really just a myth, that our past doesn’t matter, that the founders’ intentions are irrelevant, that the rule of law is and should be a dead letter, that would be one thing. We would be back to the fundamental debate of liberty versus despotism.

Instead, keep in mind that the people arguing for executive dictatorship fashion themselves as conservatives. Contrast this with the genuine conservatism of Robert Taft, who saw the postwar period as a time to set matters right and return to first principles. He attacked Truman for his Cold War forays and stated clearly that Congress alone has authority to declare war and manage foreign policy. FDR’s attitude toward his power, Taft wrote, was inconsistent with our heritage.

To return to my original question: what if the authors of the Federalist Papers were liars? This is not as crazy a theory as it might sound. Patrick Henry believed that they were, which is why he opposed the Constitution to begin with. It was too much of a risk, he said, to create any sort of president: “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!”

Patrick Henry lost the debate because enough people believed that Hamilton was sincere in his promises and that the president would be restrained. So let us be clear about what the advocates of executive rule are really saying. They are saying things that if they had been said to that founding generation of Americans would have prevented the Constitution from ever being passed. But it did pass. So until we can restore the Articles, let’s live up to the Constitution, and stop the dissembling, especially in the name of “conservatism.”


Llewellyn H. Rockwell Jr., is founder of the Ludwig von Mises Institute and editor of LewRockwell.com.

Weekly Standard: Bush has "near dictatorial power"

Thursday April 12, 2007 07:06 EST

The Weekly Standard's Michael Goldfarb participated in a conference call with former Senator George Mitchell yesterday, during which Mitchell advocated a timetable for withdrawal from Iraq. This is what Goldfarb wrote about that call:

Pam Hess, the UPI reporter who gave us this extremely moving and persuasive glimpse of the liberal case for the war in Iraq, asked if timetables for withdrawal "somehow infringe on the president's powers as commander in chief?" Mitchell's less than persuasive answer: "Congress is a coequal branch of government...the framers did not want to have one branch in charge of the government."

True enough, but they sought an energetic executive with near dictatorial power in pursuing foreign policy and war. So no, the Constitution does not put Congress on an equal footing with the executive in matters of national security.

So apparently, the American Founders risked their lives and fortunes in order to wage war against Great Britain and declare independence from the King -- all in order to vest "near dictatorial power" in the American President in all matters of foreign policy and national security. And, of course, for the Michael Goldfarbs of the world, "war" and "national security" -- and the "near dictatorial power" vested in the President in those areas -- now encompasses virtually every government action, since scary and dangerous Muslims are lurking everywhere, on every corner, and the entire world is one big "battlefield" in the "War on Terrorism," including U.S. soil.

Until the Bill Kristols and John Yoos and other authoritarians of that strain entered the political mainstream, I never heard of prominent Americans who describe the power that they want to vest in our political leaders as "near dictatorial." Anyone with an even passing belief in American political values would consider the word "dictatorial" -- at least rhetorically, if not substantively -- to define that which we avoid at all costs, not something which we seek, embrace and celebrate. If there is any political principle that was previously common to Americans regardless of partisan orientation, it was that belief.

But The Weekly Standard has an agenda single-mindedly focused on the Middle East and Muslims that outweighs everything else, and nothing can impede that agenda -- certainly not something as comparatively unimportant as the American constitutional framework. That's why, to Goldfarb, there is nothing at all odd about advocating "near dictatorial power" vested in the President (at least the current President). For this faction, anything that promotes the all-important agenda of Middle East hegemony and war against "our" enemies is, by definition, good.

The notion that our Constitution vests anything like "near dictatorial power" in the President in any area -- let alone areas as broadly defined as "foreign policy and war" and "national security" -- is so utterly absurd that no response ought to be required. In his post, Goldfarb places a link over the phrase "near dictatorial power" which takes one to Federalist 70, which contains Alexander Hamilton's argument as to why powers assigned by the Constitution to the Executive ought to be vested in one individual rather than an executive council.

Who knows what support Goldfarb thinks there is anywhere in the Federalist Papers for a belief in "near dictatorial power," but if I had to guess, Goldfarb is likely referring to this sentence in Federalist 70:

Every man the least conversant in Roman story, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.

Goldfarb seems to think that when Hamilton described a Roman "Dictator" with "absolute power," he was describing what he hoped the new American President would be. Does that argument need any refutation?

The fact that The Weekly Standard lies at the center of our mainstream political spectrum -- Bill Kristol's endless series of falsehoods throughout the Bush presidency and his endless calls for new wars against more countries was rewarded with a featured column in Time -- by itself explains political developments over the last six years which were previously unthinkable. The Bill Kristols are those who exert the most influence over this administration, and they simply do not believe in the defining political principles of this country.

One of the best summaries of those basic principles comes from Antonin Scalia in his opinion in Hamdi v. Rumsfeld, when he patiently tried to explain what previously -- prior to the ascension of the Michael Goldfarbs, John Yoos and Dick Cheneys -- did not need to be explained in this country: namely, that the President of the United States does not have the power to imprison American citizens without charges or a trial, and that does not change in the slightest merely because the President cites the imperatives of "war" (emphasis added):

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

One of the principal purposes of the Federalist Papers -- which Goldfarb obscenely cites as though it supports his twisted views of dictatorial omnipotence in America -- was to assuage widespread concerns (or, as Scalia put it, "mistrust") that the President would be, in essence, a new British King. That fear was not eliminated or even diminished, but instead was particularly pronounced, with regard to the President's role as "Commander-in-Chief," which is why there are so many safeguards in the form of Congressional powers designed to limit that role. All of this is excruciatingly basic and obvious, really not much beyond what seventh grade civics students are taught about what distinguishes a Republic from a "dictatorship."

What the actual Americans who founded the country feared (as opposed to "hoped for and craved") was that the President would wield "near dictatorial power." Anyone with doubts should simply read Article II -- defining the powers of the President -- and see how limited those powers are. Even the glorious sounding power of "Commander-in-Chief" is, as Scalia noted, nothing more than the power, when Congress decides to fund a military and when it authorizes the use of military force, to act as top General directing troop movements and the like. In all other respects, those powers are checked, regulated and limited by the people through their Congress.

America was founded to avoid the warped and tyrannical vision which The Weekly Standard and its comrades crave (and which they have spent the last six years pursuing and implementing). This group actually thinks that, right this very minute, we are at war with Iran and Syria -- and that the President can and should act accordingly against our "Enemies." And they think that even though Congress has not declared war on those countries, something they consider to be only an irrelevant technicality, even though it is that "technicality" which Hamilton, in Federalist 69, identified as one of the key features distinguishing the American President from the British King:

The one [the American President] would have a a right to command the military and naval forces of the nation; the other [the British King], in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.

Theoretical disputes aside, Americans who believe in the defining political principals of this country ought to find the phrase "near dictatorial power" to be intrinsically repugnant. But The Weekly Standard and comrades don't believe in those principles, and hence can openly embrace that phrase. Although that is not exactly news, it is still always valuable to highlight when their declarations of what they really are find such explicit expression.

-- Glenn Greenwald

Upending the Mayberry Machiavellis

It's up to Congress to save the executive branch from Bush's and Rove's radical experiment to transform it forever.

By Sidney Blumenthal

Apr. 12, 2007 | On Jan. 26, J. Scott Jennings, the White House deputy political director working for Karl Rove, delivered a PowerPoint presentation to least 40 political appointees, many participating through teleconferencing, at the General Services Administration, which oversees a $60 billion budget to manage federal properties and procure office equipment. Jennings' lecture featured maps of Republican "targets" for the House of Representatives and the Senate in the 2008 election. His talk was one of perhaps dozens given since 2001 to political appointees in departments and agencies throughout the federal government by him, Rove and Ken Mehlman, the former White House political director and Republican National Committee chairman. Rove and Co. drilled polling data into the government employees and lashed them on the necessity of using federal resources for Republican victory. "Such intense regular communication from the political office had never occurred before," Los Angeles Times reporters Tom Hamburger and Peter Wallsten wrote in their book, "One Party Country: The Republican Plan for Dominance in the 21st Century."

At the GSA presentation, the agency's chief, Lurita Alexis Doan, according to a witness, demanded of her employees, "How can we use GSA to help our candidates in the next election?" But when the House Oversight and Government Reform Committee held a hearing on March 28, Doan's short-term memory loss grew progressively worse as she spoke. "There were cookies on the table," she said. "I remember coming in late -- honestly, I don't even remember that." At a break, she ordered an assistant to remove her water glass, unaware that the microphone in front of her was still on. "I don't want them to have my fingerprints," she said. "They've got me totally paranoid!"

The Oversight Committee is investigating multiple charges against Doan -- her attempt to grant a no-bid contract to a friend; her effort to thwart contract audits and to cut funds of the GSA Office of the Inspector General, which she called "terrorists" after it began a probe into her conduct; and her potential violation of the Hatch Act, which forbids the use of government offices for partisan activity. A major Republican contributor who made a fortune as a military and homeland security contractor, Doan had held no previous government posts before being appointed last year to head the GSA. Like the fabled ("heck of a job, Brownie") Michael Brown, the former head of the Federal Emergency Management Agency, Doan is another stellar example of the culture of cronyism that has permeated the federal government under George W. Bush.

But Doan's instant incompetence and wackiness under pressure disclose more than the price of patronage. "To the victor belong the spoils" has been the rule since Andrew Jackson. And every administration has displayed cases of abuse. But the Bush administration's practices are more than the common and predictable problems with patronage. Bush has not simply filled jobs with favorites, oblivious to their underhanded dealings, as though he were a blithering latter-day version of Warren Harding. Bush has been determined to turn the entire federal government, every department and agency, into an instrument of a one-party state. From the GSA scandal to the purging of U.S. attorneys, Bush has engaged in a conscious, planned and systematic assault on the professional standards of career staff, either subordinating them or replacing them with ideologues.

Doan and Brown are on a continuum of officialdom that runs to Monica Goodling -- until recently the No. 3 official in the Department of Justice, an evangelical graduate of Messiah College and Pat Robertson's Regent Law School, and a true believer in Bush as political messiah. Doan and Brown are cronies, but Goodling is a cadre. Within the Bush administration, there are hundreds of Monica Goodlings, and she was their ideal. A zealot for the cause, she apparently divides the world into good and evil, sacred and profane. She interprets criticism and debate as a mortal threat to all that is good and holy. She sees any institution of American life that is not devoted to the flag and cross to which she pledges and worships as twisted, biased and infernal. (To Goodling, CNN is "a force of the left.") She cannot distinguish between her absolute beliefs and their political instrumentality. She considers objective and professional analysis a ruse, an ideology in itself, a false faith. She sees those who adhere to standards of professionalism as agents of deception, hiding their real agendas. She was enthusiastic in weeding out Justice Department employees and replacing them with true believers like herself. Goodling's refusal to testify before the Senate investigation into the firing of U.S. attorneys and her assertion of the Fifth Amendment because the Senate operates in "bad faith" casts her as martyr and saint, warrior and crusader.

While Vice President Dick Cheney and former Secretary of Defense Donald Rumsfeld installed neoconservative ideologues throughout the national security apparatus, sidelining the senior military, diplomatic corps and intelligence community, and creating parallel operations to avoid assessment by professionals, Rove was handed the rest of the executive branch to arrogate for political purposes.

Consider the reports surfacing only within the past month: that scientists at the Fish and Wildlife Agency and the National Oceanic and Atmospheric Agency have again been forbidden to discuss climate change; that nine newly appointed U.S. attorneys are political cadres; that the new U.S. attorney for Minnesota, Rachel Paulose, cites Bible verses in the office, harshly orders underlings around and, according to one of four assistant U.S. attorneys in her office who voluntarily demoted themselves, treats disagreement as "disloyalty"; that the Election Assistance Commission last year, giving credence to Republican talking points of widespread voter fraud, ignored experts' testimony to the contrary; that between 2001 and 2006, the Civil Rights Division of the Justice Department has purged 60 percent of its professional staff and not filed a single voting discrimination case on behalf of African-American or Native American voters; and that after the state Republican Party complained to Rove that the U.S. attorney in Wisconsin, Steven Biskupic, was not attacking voter fraud, Biskupic kept his job by filing corruption charges against an aide to the incumbent Democratic governor on the eve of the 2006 elections. (The 7th Circuit Court of Appeals recently ruled the aide was "wrongly convicted" on evidence that was "beyond thin.")

On the one hand, Rove has sought to forge a permanent Republican majority. On the other hand, that project might not be completed in just two Bush terms. In either case, Rove's strategy has depended on subjecting the federal government to political objectives. He is not trying to achieve any abstract goal, such as reaching the conservative nirvana of limited government. The endless scandals revealed are not a random compendium of corruption and incompetence, though they are that, too. They are evidence of Rove's -- and Bush's -- larger strategy of hollowing out the federal government in the interest of building a political state.

In 2002, a University of Pennsylvania professor and earnest conservative named John DiIulio, who had been appointed a White House domestic policy advisor to Bush's faith-based initiative, the essence of his claim to being a "compassionate conservative," resigned, becoming the first person to quit the administration in disgust. As DiIulio told reporter Ron Suskind, writing in Esquire magazine, the tone was set from the top. He overheard Rove shouting about some poor object of his anger, "We will fuck him. Do you hear me? We will fuck him. We will ruin him. Like no one has ever fucked him." DiIulio was shocked to discover not only that Rove was placed in charge of domestic policy but also that Bush had no interest in it except as a political tool. "On social policy and related issues, the lack of even basic policy knowledge, and the only casual interest in knowing more, was somewhat breathtaking," DiIulio said.

Possessed with a sense of history, the disillusioned professor's remarks of five years ago have proved prophetic: "There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus. What you've got is everything -- and I mean everything -- being run by the political arm. It's the reign of the Mayberry Machiavellis."

In all his machinations Rove did not calculate that he would ever create an opposing force that might stop him. The Republican Congress had long shielded the administration from oversight and investigation, protecting Rove's handiwork. Now the Democratic Congress has begun to uncover seemingly endless series of abuses. In this respect, the clash of the legislative and executive branches is not over a difference in policy, as in the conflict over the Iraq war. Rather, Congress' effort is even more fundamental: to salvage the executive branch -- its capability of functioning in the public interest in the future -- from Rove's radical experiment to transform it forever.

Distract and Disenfranchise: PAUL KRUGMAN - Power Abuses

THE COMPLETE ARTICLE
THE NEW YORK TIMES
OP-ED COLUMNIST

Distract and Disenfranchise

By PAUL KRUGMAN

Published: April 2, 2007

I have a theory about the Bush administration abuses of power that are now, finally, coming to light. Ultimately, I believe, they were driven by rising income inequality.

Let me explain.

In 1980, when Ronald Reagan won the White House, conservative ideas appealed to many, even most, Americans. At the time, we were truly a middle-class nation. To white voters, at least, the vast inequalities and social injustices of the past, which were what originally gave liberalism its appeal, seemed like ancient history. It was easy, in that nation, to convince many voters that Big Government was their enemy, that they were being taxed to provide social programs for other people.

Since then, however, we have once again become a deeply unequal society. Median income has risen only 17 percent since 1980, while the income of the richest 0.1 percent of the population has quadrupled. The gap between the rich and the middle class is as wide now as it was in the 1920s, when the political coalition that would eventually become the New Deal was taking shape.

And voters realize that society has changed. They may not pore over income distribution tables, but they do know that today’s rich are building themselves mansions bigger than those of the robber barons. They may not read labor statistics, but they know that wages aren’t going anywhere: according to the Pew Research Center, 59 percent of workers believe that it’s harder to earn a decent living today than it was 20 or 30 years ago.

You know that perceptions of rising inequality have become a political issue when even President Bush admits, as he did in January, that “some of our citizens worry about the fact that our dynamic economy is leaving working people behind.”

But today’s Republicans can’t respond in any meaningful way to rising inequality, because their activists won’t let them. You could see the dilemma just this past Friday and Saturday, when almost all the G.O.P. presidential hopefuls traveled to Palm Beach to make obeisance to the Club for Growth, a supply-side pressure group dedicated to tax cuts and privatization.

The Republican Party’s adherence to an outdated ideology leaves it with big problems. It can’t offer domestic policies that respond to the public’s real needs. So how can it win elections?

***

The good news is that all the G.O.P.’s abuses of power weren’t enough to win the 2006 elections. And 2008 may be even harder for the Republicans, because the Democrats — who spent most of the Clinton years trying to reassure rich people and corporations that they weren’t really populists — seem to be realizing that times have changed.

--MORE--

Accountability and the Renegade Executive

Thursday, March 29, 2007

Scott Horton

Normally, I begin my remarks by saying "Ladies and Gentlemen." But here I'm not sure that's quite the right salutation. On my way down from New York to Charlotte to Memphis to Oxford, Mississippi today, passing over the freshly verdant Appalachians and then down the valley of the Tennessee River to the Mississippi Delta, I read the first chapters of William Faulkner's novel, Sanctuary - it takes placed in a bucolic college down named Jefferson - a town which is remarkably like this one. And there towards the end of Chapter III, I ran across this scrap:

"The Virginia gentleman… told us at supper that night about how they had taught him to drink like a gentleman. Put a beetle in alcohol, and you have a scarab; put a Mississippian in alcohol, and you have a gentleman -"

So, as it's still too early in the evening to speak of "gentlemen" here in Mississippi, I'll just say "friends."

America today is in the grips of a scandal surrounding the machinery of justice, but it is a scandal being played out on more fronts than the mass media seems to realize. Indeed, in the end it turns on the concept of justice, not just about the bureaucracy that supposedly administers it.

Eight US attorneys were dismissed by Alberto Gonzales on prodding from Karl Rove. We now know the fateful decision was taken on December 7 (an ironic day, as FDR said, "a day that will live in infamy"). As Gonzales and his deputies Paul J. McNulty and William Moschella trotted out various and contradictory after-the-fact rationalizations for this decision, it has become increasingly clear that the dismissals were politically inspired. Indeed, in the testimony that he has submitted to the Senate Judiciary Committee within the last two hours, Gonzales' chief of staff acknowledges as much.

The prosecutors selected for discharge come from "battleground states" which will be key to the 2008 presidential election: New Mexico, Nevada, Arizona, Michigan, Washington and Arkansas. This is no coincidence. Shortly after the 2006 Congressional election, Karl Rove, licking his wounds over a serious defeat, indicated in a speech to Republican lawyers that the public perception of scandal surrounding GOP law-makers was key to that loss. Rove promised he would do something about it. Within a few days, a move to cashier these prosecutors was underway. It is tied to a plan to use their offices to go after Democrats, whether a basis existed or not, and to pursue a voter suppression program focused on prospective Democrats. In other words, it's pure politics. Not high politics in the sense that Aristotle uses the term. But the crude gutter politics of the partisan hack. This sort of politics is not the exclusive province of one party. But over the last years, one party has exercised a monopoly on political power, and this appears to have led to a particularly virulent strain of political hackery.

Standing alone, this incident would be cause for grave concern. But it's just one aspect of a far broader crisis in which our country is enmeshed. The crisis has its start in the decision to introduce torture and cruel, inhuman and degrading treatment - in contravention of 230 years of US military tradition, stretching back to George Washington's order after the battle of Trenton. Gonzales had a key role in this process as well, backed up by Cheney's chief-of-staff, David Addington and the now ever-present John Yoo. They tell us that they did this to insure that the president, as commander-in-chief, would have all the tools at his disposal that he might need to fight a war against terror. But if we strip the varnish off that, there are unmistakably unsavory elements underneath: one is a recognition that torture is a crime, and the second is a desire to enlist it into the president's arsenal notwithstanding what the law says.

A former president of the Argentine bar, with whom I spoke two years ago, told me that his experience with torture in Argentina's "Dirty War" under a military dictatorship had been very clear. The dictator wanted torture as a talisman. It would show that the military rulers were above the law - subject to none of the restraints that marked the rule-of-law state. No one was under the illusion that torture techniques would actually get any useful intelligence. On the other hand, it would instill fear, and that was useful. He spoke to me with some conviction: the legal profession must oppose the introduction of torture, he said. In the end you will learn this is not about interrogation practices, it is about dictatorship, about tyranny. The experience of Argentina and Chile backs him up. Is the experience of America different? America is not governed by a military junta, of course. Nor can the brutality of technique and number of victims of the "Dirty War" yet be compared with the dark underside of the war on terror. But it is striking that most of the abusive techniques used by the Argentine junta were adopted and introduced in what President Bush has called the "program." This includes waterboarding, which the Argentinians called el submarino, the cold cell (or hypothermia), long-time standing and sleep deprivation in excess of two days. Nevertheless, this is a question we all should ponder.

The Argentine lawyer's remarks reminded me immediately of what Gonzales wrote in a memorandum on January 25, 2002 - he speculated that the newly fashioned plans for the war on terror might lead future prosecutors to consider war crimes charges. Gonzales suggested that if Bush declared that the Geneva Conventions did not apply, it would be more difficult for a prosecutor to go after the authors of these new policies.

It's chilling to consider that this was written by a man destined to serve as the nation's chief law enforcement officer. But it explains, perhaps, why Bush gave Gonzales the nick name "Fredo" - the name of the younger, loyal, but mentally less adept son of the Godfather crime family, the Corleones.

It started with torture but it moved swiftly beyond this. For instance, to a decision to introduce a system of torture-by-proxy through extraordinary rendition. Gonzales also gave this program, which has its origins back in an anti-drug kingpin program launched by Clinton, the green light. And now more than thirty American public servants - CIA officers and military for the most part - stand under indictment in Italy and Germany with counts of assault, kidnapping and other felonies; these are all dedicated public servants performing an official program. The blame for what happened doesn't rest with them, or at least not entirely. It rests with the people who formed the policies that they implemented. Our reputation around the world is a tatters. And nations who want to cooperate with us in a war against terror, and whose support the United States badly needs, repeatedly find they can't do so. If they do, they will be collaborating with a nation that tortures, and they aren't prepared to sacrifice their values the way the Bush administration has sacrificed ours.

Recently a friend of mine who works with the Afghan Government shared with me some intelligence the Afghans had gathered from a young man apprehended in connection with an attack using an improvised explosive device. The man had fled as a refugee to Pakistan. There he was seized by the Pakistani Inter Service Intelligence (a close collaborator of the CIA) and told that unless he participated in a planned bombing attack on NATO forces in the Afghan south, the Pakistanis would turn him over to the Americans, he would be taken to Guantánamo and tortured there for years on end. He agreed to participate. Interestingly he was not the only young Afghan to be captured with an account like this. Is the account true? The Afghans are convinced it is, and US intelligence apparently has credited it as well. So there you have it: come full circle. The image of Gitmo used to recruit people to perform acts of terror against us.

Gonzales also gave the go-ahead for surveillance that violated FISA, a federal criminal statute. Indeed, Newsweek gave us a fascinating insider's account of how all this went down at Justice. Then Attorney General John Ashcroft was out in the hospital for a gallbladder operation. James Comey, his deputy, said "no," he couldn't possibly authorize this. Neither, apparently, would Jack Goldsmith, the man responsible for the Attorney General's legal opinions. Gonzales had to find alternative means to get this through. And in short order Ashcroft, Comey and Goldsmith were gone from Justice and Gonzales arrived with a new team of enablers. Gonzales gave evasive or false testimony about much of this during the confirmation process, which earned him a distinction that is, as far as I know, unprecedented for a US attorney general. He enjoys such a reputation for "truthiness" (as Stephen Colbert calls it, namely something which has the outward appearance of truth, but is, in fact, a lie) that he is not permitted to speak before the Judiciary Committee without being formally sworn in. And this last weekend, three senior Judiciary Committee Republicans - Specter, Graham and Hagel, were openly discussing Gonzales' truthiness problems on talk shows.

Where once our nation had the debate of Jeffersons, Madisons, Websters and Clays, now we have the Beltway punditry - the Fred Hiatts, Chris Matthews and Norah O'Donnells - a vacuous chattering class which is the Muzak of our political discourse. They tell us that all of these scandals - the cashiering of US attorneys, the surveillance, the introduction of torture and torture-by-proxy - this is all just politics. Don't get yourself worked up. In fact, pay no attention. Time to move on.

Don't believe them. This is about the country we live in and the country we will pass to posterity. It's about fidelity to the values on which this country was founded. It is about the rule of law and accountability. Our Founding Fathers had faith in mankind, but also a very real sense of man's corruptibility. "If men were angels," James Madison wrote in Federalist No. 51, then we should have no need of government. But men are no angels, and politicians may in fact be closer to what Kant called a race of devils. The genius of the tripartite system of checks and balances that Madison and the other Founding Fathers created was its use of the quest for power latent in so many of us (and especially in politicians) as a brake against itself.

But in the last six years this brake has been dismantled and removed. There has been a fundamental shift in the power structure - a sweeping reallocation of power from the Congress and Courts to the Executive. Much of this has occurred secretly, behind closed doors, as a sort of constitutional coup d'état.

It's telling that the current scandal began with a secret change in the Patriot Act. Unbeknownst to those who should have run the process, including Senator Specter, then the chair of the Judiciary Committee, a provision was slipped in at the last minute giving the Attorney General a direct power of appointment of US Attorneys, skirting the advice and consent of the Senate. This provision was smuggled into the bill by a young legislative assistant who was promptly appointed, at 34 years of age, as the US Attorney in Utah. He was a friend of Kyle P. Sampson, Gonzales' chief of staff and the man who stage-managed the removal of the eight US attorneys. Sampson, who is going to become a household name in the next few days, has a nickname, "Little Rove," both for his similarity to and friendship with Karl Rove. But the point here is that the Senate should have exercised a brake by looking into the entire process, and through legislative legerdemain that was stopped.

Bismarck famously said that with legislation, like with sausage, it was perhaps best not to know what went into it. But that reflects the Bismarckian democracy, which in the end, wasn't much democracy at all. As for our process, we have Madison's admonitions not to legislate in secret, a charge that Congress has rarely lived up to, but has miserably breached these last few years.

This week at colleges and law schools around the country, there is a special focus on what is underway at Guantánamo, or Gitmo as my Navy friends call it. Newspapers today are reporting on the first hearings held in the military commissions process. Last weekend, the New York Times informed us that in his first weeks in office Bob Gates, the man who replaced Donald Rumsfeld as secretary of defense in December, put together a comprehensive plan to shut down the Gitmo detention centers and move the entire operation to the United States. This initiative was immediately supported by Condoleezza Rice. Gates and Rice argued that the name "Guantánamo" was now held in such disrepute around the world that no one would ever associate what transpired there with any notion of justice. Gates, it seems, thought that when Bush said he wanted to shut down Gitmo, he really meant it. But he quickly learned that it's dangerous to assume Bush means what he says, especially when he's talking about Gitmo and the war on terror. Alberto Gonzales and Dick Cheney stepped in very quickly to quash the Gates plan. Gonzales said that bringing the detainees to the US could have unpleasant legal consequences for the administration.

Indeed it would. It would greatly up the chances that the detainees would be able to challenge their treatment in a federal court, before real judges, who would apply real law - starting with the US Constitution and continuing on to the Geneva Conventions. And it would open the prospect that the American people would learn, perhaps in some detail, exactly what was done to those detainees. Rumsfeld called them the "worst of the worst" but we know thanks to a Seton Hall study that roughly 80% of them were picked up by Afghan and Pakistani bounty hunters, and, in the assessment of both FBI and CIA teams that initially screened them, had no business being there. Gates and Rice were correct when they offered that no one would associate these proceedings with justice. That's because they bear no resemblance to justice, as it has traditionally been dispensed in US courts. Nor do they bear much resemblance to the high and honorable standards that have been established under the Uniform Code of Military Justice and the Manual on Courts-Martial. These proceedings are loaded from the outset. Defendants are not permitted counsel of their choosing, and defense counsel have been subjected to a torrent of abuse and mistreatment. Evidentiary rules are weighted in favor of the admission of coerced testimony, including torture-induced testimony, secret evidence, and evidence which cannot be confronted or properly crossexamined. A fair-minded judge might still get to a just result, but the rules the Pentagon dictated, and the shameful provisions the Congress wrote, will make it perilously difficult to get there.

Dwight David Eisenhower, the last of our nation's great warrior presidents, said "Though force can protect in emergency, only justice, fairness, consideration and co-operation can finally lead men to the dawn of eternal peace." He reflected the received wisdom of the nation that won World War II and then turned with swift justice to the work of the Nuremberg and Tokyo Tribunals. Through this process, America demonstrated it had a powerful thirst for justice. It vindicated America's cause in the war. It exorcised the demon of fascism which had laid hold of the heart of Europe. And it produced a new world in which the vanquished foes, Germany, Italy and Japan, emerged as America's allies for the coming generations. Eisenhower's faith in the power of justice, pursued swiftly and with a firm sense of fairness, was borne out. Wielded effectively, justice is indeed among the most potent tools in our arsenal.

And this provides reason for us to ask: Why is this administration afraid of justice the way our fathers and their fathers understood it? Why do we wait five and a half years after 9/11 to witness the first sessions of the military commissions? And why do we then witness a confused tumult which embarrasses us in the eyes of the entire world, just as Gates suggested it would?

In the end the turn against traditions and values has been about the aggrandizement of power in the executive. It has been about arrogant avoidance of accountability. And it has been about that principle that lies most at the heart of the development of the Anglo-American legal tradition, namely that no man is above the law, not even the king or the man who would be king. As with so many things of recent times, it resonates of England in the seventeenth century, and reminds us of the famous words uttered by Thomas Fuller: "Be ye ever so high, still the law is above thee." But the mantra of the current administration is to frustrate all efforts to hold it to account, to grant itself immunity for its crimes, to strip courts of jurisdiction, including even the great writ. On each of these points, the conduct of the Bush presidency mirrors that of Charles I, the monarch whose conduct provoked Fuller's statement.

Americans have inherited a great legacy, one that embraces the worth and dignity of all human beings, the promise of equal justice for all before the law, a principle of limited, carefully divided and counter-posed governmental powers, with full accountability to a people in whom sovereignty rests. The answer to our current problems lies in our past, and in fidelity to the best that America has brought forth. But it requires citizens to be alert and to see what passes before them. And it requires us to take our heritage seriously.


Remarks delivered at the University of Mississippi School of Law, Oxford, MS, Mar. 28, 2007
Posted 1:22 AM by Scott Horton [link]

Grandkids will ask, "What did you do to protect America from Bush's tyranny?". How will you answer?

Grandkids will ask questions about Bush

In his book, "The Sorrows of Empire," Chalmers Johnson wrote; "Four sorrows ... are certain to be visited on the United States. Their cumulative effect guarantees that the U.S. will cease to resemble the country outlined in the Constitution of 1787.

"First, there will be a state of perpetual war, leading to more terrorism against Americans wherever they may be and a spreading reliance on nuclear weapons among smaller nations as they try to ward off the imperial juggernaut.

"Second is a loss of democracy and Constitutional rights as the presidency eclipses Congress and is itself transformed from a co-equal 'executive branch' of government into a military junta.

"Third is the replacement of truth by propaganda, disinformation, and the glorification of war, power and the military legions.

"Lastly, there is bankruptcy, as the United States pours its economic resources into ever more grandiose military projects and shortchanges the education, health, and safety of its citizens."

Generations of Germans asked their parents and grandparents, "What did you do to protect Germany from the fanaticism of Adolf Hitler?" Sadly, many had to reply - "Nothing," and many others would have had to admit that they actually supported him, some defiantly proud to have done so.

One day in the not too distant future your young children or grandchildren will be adults and may ask, "What did you do to preserve democracy during the regime of George W. Bush?" Will you be able to respond honestly that you tried your best to save our country from Bush's pathological lust for power, or will you, like those devoted fascists, stand defiantly by your support of the most pernicious administration in American history?

You know, or should know, the countless outrages against democracy this man has committed; this brief article can't possibly provide an exhaustive list, but the following few are representative.

He made an unprovoked war of aggression against Iraq and lied to Congress and the American people to do so. He authorized torture of captives. He has willfully put America in violation of the Geneva Conventions and in the process branded us as a rogue nation.

He has authorized illegal surreptitious surveillance of American citizens. He has authorized the abduction, torture and indefinite detention of people - including American citizens.

He has denied the constitutionally protected right of habeas corpus to those he chooses to brand as "enemy combatants." He is responsible for disclosing the identity of an undercover CIA operative, thus endangering the lives of a broad network of her contacts and rendering years of intelligence useless.

Through the unprecedented abusive use of "signing statements" he has claimed the dictatorial authority to violate laws at will. He is responsible for firing U.S. attorneys as retribution for their prosecution of his political cronies or their unwillingness to engage in trumped-up prosecutions of political enemies. With the help of the feckless Republican Party he has instituted tax and fiscal polices that have brought us to the edge of bankruptcy.

He has encouraged religious zealots in their campaign to replace the scientific search for understanding of our world with their interpretation of Biblical revelation. He is at the top of the list of most despised world leaders and has made America an international pariah.

Under Bush's domination, the Republican Party has attempted to ensconce him as the "unitary executive" answerable only to himself with no oversight by either the legislative or judicial branches of government. Fortunately, we now have a Democratic congressional majority that has reinstated congressional oversight of the executive branch, a dormant process while Republicans were in the majority.

In just two months at least three instances of executive malfeasance have been exposed for which heads should roll, and it's clear that there will be more to come. At long last there is hope that we may slowly return to sanity and regain some measure of respect by a world alienated by the years of Bush's imperial arrogance.

So if we survive the Bush catastrophe - when your grandchildren ask, "What did you do to protect America from Bush's tyranny?", how will you answer?


Bob Regl is a resident of Hattiesburg.

Executive Overreach

The White House Is Taking Privilege Too Far
By Beth Nolan

Friday, March 23, 2007; A17

The Framers of our Constitution envisioned that in the exercise of their authorities, the two political branches would assert their prerogatives against each other. A process of negotiation and accommodation between the branches is what one would expect. That process isn't elegant, but a push-pull between the branches doesn't necessarily mean that anything is wrong.

What is going wrong today, however, is the take-it-or-leave-it position of the White House.

The struggle between Congress and the executive branch over the requested testimony of White House officials regarding the removal of eight U.S. attorneys is playing out in the political arena. In fact, the political arena is where the contours of these prerogatives are largely shaped, rather than in our courts. While executive privilege is based in constitutional principles of the separation of powers and the authority of the president over the executive branch, and the privilege has been recognized by the Supreme Court, its scope has been largely determined outside the judicial process.

President Bush's counsel not inappropriately started by seeking to shield high-level White House advisers from compelled testimony before Congress. The White House offered the officials for private interviews by lawmakers and their staffs, so long as there are no oaths, transcripts, follow-up interviews or queries delving into White House discussions. Lawmakers have rejected that offer as insufficient to permit Congress to exercise fully its oversight and legislative roles, and congressional committees have authorized the issuance of subpoenas.

Out of respect for the separation of powers, Congress should not ordinarily call on such officials for testimony but should leave such officials to devote their attention to their duties for the president. This rationale no longer has force for those who have left the White House, such as Harriet Miers, but even then, communications with the president or internal White House communications about the president's decision to dismiss his appointees should usually be shielded from disclosure. Presidents need candid advice from their counselors, and respecting the privilege enhances the likelihood of such candor.

But Congress has duties and responsibilities in our constitutional system as well, and the president has an equal responsibility to respect Congress's important and legitimate interests in this matter. Serious questions have been raised about whether illegitimate considerations played into those dismissal decisions. These are questions Congress should be exploring. While any president has the authority to fire his or her appointees, including U.S. attorneys, the independence of our prosecutors from improper political (not policy) influence is a bedrock principle of our criminal justice system.

We don't know exactly what happened, but enough questions have been raised by the e-mails that have been disclosed and officials' changing stories to establish that Congress -- and the American people -- are entitled to know more. When Congress has already received information and testimony that raises serious questions about possible wrongdoing, the White House counsel's offer -- a closed-door session that may not be recorded, even by a transcript, and on the condition that Congress has only one bite at the apple, no matter what it may subsequently learn -- is simply inadequate. Executive privilege is an important and essential constitutional principle, but it is not the only important principle at issue here.

Congress can be too aggressive in intruding on executive prerogatives. When I was counsel to the president, we were deluged with subpoenas, many of which were issued unilaterally by a committee chair and served on us without even the courtesy of a phone call first. So much for respecting a co-equal branch or engaging in a process of accommodation. I testified before Congress twice, under oath and pursuant to subpoena, on White House e-mail reconstruction. Even after the change in administrations, I testified under oath when Congress sought information about presidential pardons. (Once, the president asserted a privilege when my testimony was sought regarding earlier pardons.) Too often during that period, Congress failed to show proper restraint in seeking information from the White House.

But the executive can also be too aggressive in asserting its prerogatives in the face of a legitimate need of Congress. Each branch should vigorously seek to protect its legitimate powers, and each branch should recognize the legitimacy of the others' concerns. The White House's current insistence that its restrictive offer is nonnegotiable prevents the process from working as it should.

The writer is a litigation partner in the Washington-based law firm Crowell & Moring LLP. She was counsel to the president from September 1999 to January 2001 and served in the Justice Department's Office of Legal Counsel as deputy assistant attorney general from 1996 to 1999.