Roasting an old chestnut

On September 17th, 1787, some 221 years ago today, a bunch of guys got together to sign their names to a little ditty that started something like this:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Yeah, spelling and punctuation was kind of quaint back then, but the rest of the thing holds up pretty well. . . or at least did for about 214 years or so. It was ‘round about then that the current vice president decided that he could form an even more perfect union—a union of his self-serving and paranoid worldview with virtually every aspect of American power and governance.

From drafting an “energy policy” all by his lonesome to manufacturing intelligence and lying the country into a war for oil, from kidnapping people abroad and disappearing them to torturing citizens in the basement of the White House, from abandoning the Geneva Conventions to abrogating the Fourth Amendment, Dick Cheney, with the blessings of his incurious regent patron, unitarily set about to edit away about two-thirds of the United States Constitution.

Well, not quite. As much as the biggest proponent of the unitary executive “theory” would like to think he did it alone, he couldn’t have really made his solo performance hum as well as he has without the cooperation of a furtive and feckless legislature. That the leadership of Congress changed hands two years ago has been of little consequence when it comes to these grand matters, and so, with Cheney due to relinquish his official control in just four short months, the 221-year-old Constitution is in more peril today than ever.

That point might seem odd to some—surely the menace has been two terms of rapacious Republican rule, and with that soon over, so, too, the threat, no?

No. For after eight years of complicity and codification, the current imbalance of power runs the risk of being passed on to another executive with little done to restore the equilibrium between the branches that is required by the Constitution, and nothing done to punish those that disregarded those constraints. That the next administration might be a Democratic one is of little consolation. Perhaps Barack Obama, who was, as we are oft reminded, a teacher of Constitutional law, will govern with a greater respect for the checks and balances envisioned by the founders, but his behavior in the recent battle over FISA revisions proves that such deference cannot be assumed. And without action by the Congress to reveal the Bush Administration’s transgressions, explain them to a distracted America, and hold responsible Cheney, Bush, and their minions, a restoration of the balance of power is most certainly not assured.

For without explanation of how harmful this has been to our Union, there will be little incentive for the next president to behave more in line with the provisions of Articles I, II, III, and, for that matter, IV and V, too, and without penalties assessed against those currently in violation, there will be no disincentive to behaving in much the same way. As has been noted before, there are few that would voluntarily choose to give up some of their power. A belief that this power might be used for good instead of evil makes that prognosis all the more certain. . . and grim.

America’s greatest strength these 221 Constitutionally governed years has been the openness that comes with a deliberative democracy. The push, pull, and pace may often be infuriating, but the informed debate is what keeps a country honest. It allows for a confident dissent and the contributions of a diverse population. It should, in theory, prevent wars of ego and choice, and guard against crony capitalism, selective prosecution, environmental exploitation, and a host of initiatives that benefit the friends of the current executive at the expense of the national interest.

In theory. The history of the US Constitution is littered with its failures, for sure, but those failures tend toward its misapplications or instances where it is not applied at all. Which brings to mind Article II, section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If there were ever a day to revisit those words, it would be today; if there were ever a time to honor them, it would be now.

To that end, there are some in Congress who are trying—Democratic Representatives Dennis Kucinich and Robert Wexler come to mind. And, today, Wisconsin Senator Russ Feingold (D), as Chair of the Senate Judiciary’s Constitution Subcommittee, will host a celebrity roast, of sorts, in honor of the star document’s birthday. Titled “Restoring the Rule of Law.” Feingold introduced these hearings yesterday:

“Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia," said Feingold in opening the hearings this morning. "It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country."

Calling the Bush-Cheney shredding of our national creed "a shameful legacy that will haunt our country for years to come," Feingold addressed the difficulty that a new Congress will have in rectifying this administration's actions as the public and even Washington become numb to what Bush has made standard practice since September 11.

Feingold, to my mind, sells short the disrespect that the Bush-Cheney Administration had for the Constitution before 9/11/01, but the Senator fully recognizes the difficulties that lie ahead, especially considering how little support his and likeminded efforts have received from his own party’s leadership. Given that sorry state of affairs, and given the noise of the presidential election and the needs of a failing economy, I am not expecting much to come of Feingold’s hearings.

And that is a shame (and I mean that in the most condemnatory tone), for it will be harder to make the aggressive, long term changes to our financial markets, or our economy writ large, our energy policy, our national infrastructure, or our foreign policy, without the structures and strictures put in place 221 years ago. Not that it will be easy with them, but without the balance that has modernized and energized this Republic for two centuries, the rule of law is reduced to the whims of men and women. Any of those leaders will prove to be imperfect—even those that embody the hopes and good will of the majority are susceptible to the corrupting influences of power, the recalcitrance of institutions, the blindness of certitude, and the sway the interested few. It is the Constitution that protects the general welfare against misguided whims, that gives mere mortals the counterweight to politicized pressure, that gives the imperfect a means by which to become more perfect.

It is a 221-year-old idea—the idea of three co-equal branches each asserting their power equally and in the open—that gives a large and aging country the tools to make the change we need.


(cross-posted on The Seminal and Daily Kos)

AG to US: FU

Attorney General Michael Mukasey was on Capitol Hill yesterday, welcoming the House Judiciary Committee—and all of us Americans—to the era of recourse-free government.

In what can’t possibly be over-reported (but, alas, will be noticed by very few—it is not on the front page of the New York Times, for instance, and their short story about the hearing, buried deep inside, only mentions the AG’s face off with Congress over cocaine sentencing guidelines), Mukasey made several startling declarations:

• No, the Justice Department will not be investigating whether the now-admitted-to waterboarding of US prisoners was against the law.
• And, no, the DoJ will not be investigating whether the Bush Administration’s warrantless surveillance was illegal. Nor will the AG appoint a special prosecutor to investigate.
• And, no, the Department of Justice will not enforce any contempt citations that Congress might bring against administration officials that have failed to honor subpoenas for testimony.

“How can that be?” say so many (Democratic) members of the HJC.

“Because we’re just not going to,” says the imperious AG.

“But aren’t you sworn to uphold the law?” the perplexed HJC members ask.

“We are the law,” blurts Mukasey.

No, that’s not an exact verbatim—but you might be shocked to find just how close it is. The transcripts are quite lengthy, so let me borrow Paul Kiel’s quick summary of an exchange with New York Rep. Jerrold Nadler over appointing a special counsel to look at the warrantless wiretaps (you can find the complete transcript below that post):

The question came after Mukasey had baldly asserted that it was not a "practical view" that the president could order someone to act outside the law. Nadler wanted to know if the president hadn't done just that with his warrantless wiretapping program, which had ignored the constraints of FISA.

Well, Mukasey said, the President had ordered that on the advice of the Justice Department that it was lawful. So, just as he will not initiate an investigation of waterboarding since the DoJ had given its OK, he will also not investigate whether the warrantless wiretapping was lawful, since it was legal, because the DoJ said it was ("there are views on both sides of that" he acknowledged).

You’ve got your Nuremburg Defense, you’ve got your executive privilege, and you’ve got a bucket-full of L’État c’est moi—and it all adds up to the most arrogant, bald-faced, and shameless defense of the unitary executive “theory” ever uttered by this administration (and, yes, I know, that is saying a lot).

What AG Mukasey is claiming—and what he is establishing unless Congress does something quickly to contradict him—is that there is effectively only one branch of government, and that is the Executive Branch. The AG’s statements do not allow for congressional oversight, and they do not allow for judicial oversight. It does not even allow for the rule of law, since the law is whatever the President instructs his Office of Legal Counsel and Attorney General to say it is. How can we know what he instructed? We can’t—that’s a state secret or subject to executive privilege. What if a member of Congress, or a judge, or any US citizen has a problem with that? Tough luck—you have no effective recourse beyond the whims or benevolence of the President/Emperor.

This doesn’t just trample on the United States Constitution—it abrogates the Magna Carta.

Perhaps it is easy to chalk this up to business as usual for a corrupt administration that is less than a year from out the door, but that would be letting Mukasey and his bosses off easy, and it would be letting the country down. While it is unbelievable that the establishment media won’t cover this power grab, it will be unforgivable if Congress doesn’t correct it.


(cross-posted on The Seminal and Daily Kos)

Meanwhile, back here at home. . .

While it is all well and good that a “very ruly crowd” of some 500 lawyers gathered yesterday outside the county courthouse in lower Manhattan for a brief rally to show solidarity with lawyers and judges jailed and persecuted since General Perves Musharraf declared martial law in Pakistan, I can’t help but wonder why a crisis abroad has them so hot and bothered.

After all, for more than six years now, the law has been under assault here at home. Where were the lawyers when the ironically named “USA Patriot Act” papered over or watered down about half of the Bill of Rights? Where were the lawyers when it was revealed that the Bush Administration had ignored the Fourth Amendment and the Foreign Intelligence Security Act and illegally spied on their fellow citizens? Where were they when the administration, and then the Republican Congress, eliminated Habeas rights for, well, for practically anyone that The Decider decides is an enemy? Where were they during the politicization of the entire federal justice system, from the US Attorneys, through the Courts of Appeals, all the way up to the Supreme Court? Where were they during the confirmation of Attorney General Ashcroft? Attorney General Gonzales? Attorney General Mukasey?

For that matter, where were they after Justices Scalia and Thomas refused to recuse themselves (because of blatant conflict of interest) in Bush v. Gore?

While some members of the bar in this country fight, and fight hard, every day for an end to torture, to rendition, and unlawful detention, while some fight, and fight hard, for a restoration of Habeas Corpus and FISA, and in defense of the First, Fourth, Fifth, Sixth, and Seventh Amendments, far too many of those with direct experience and a detailed understanding of the laws of the land have chosen to go about their business as if nothing much has changed here in the United States. And while American jurists are far from the only citizens who have come up light on the outrage scale, I am hard-pressed to think of a group that is better positioned—in terms of education, employment, status, and first-hand knowledge—to make a less than joyful noise about what has happened to this country’s legal principles and protections.

The jurists of Pakistan have been out in the streets everyday, protesting in the face of beatings and mass arrests, so, by all means, stand in solidarity with them--they deserve your support. But beyond shouting “No more Musharraf,” beyond simply supporting the Pakistani lawyers, it might be good to learn from them, too. How about regular gatherings of American jurists to stand in solidarity with our Constitution? How about shouts against the myriad ways that our less than legitimately elected President has abused the law and its practitioners right here at home?

. . .

I heard the head of the New York Bar on the radio speaking in support of Pakistani lawyers because, he said, the Musharraf government had tortured some of them. Well, the American government is torturing people, probably every day, probably for some six years now—do they have to torture lawyers to get you to stage protests of your own government’s behavior?


(cross-posted on Daily Kos and The Seminal)

Too pissed to blog

I really thought that with the elevation of Democrats to the leadership of both houses of Congress that the worst of my politicocentric rages were behind me—but today, my cardiovascular system and I discovered that I was wrong.

WASHINGTON, Oct. 8 — Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.

Say what??? Are you fuckin’ kidding me? Have we learned nothing. . . again? Did the Democratic leadership fail to read the editorials back in August that shot their cavalier strategizing square through the strangely missing moral core? Did they fail to read my blog???

Sadly, everything—absolutely everything—that I, the New York Times, the Washington Post and Rep. Jerrold Nadler (D-NY) said back in August still applies (please take a moment to click back to that post—I can’t bear to write it out again). And that leaves me seething to point of crimson face and bulging eyes.

Today, even the previously resolute and admirable Rep. Nadler seems to be showing his jelly-leg.

Mr. Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.

“It is not perfect, but it is a good bill,” he said. “It makes huge improvements in the current law. In some respects it is better than the old FISA law,” a reference to the foreign intelligence court.

Not perfect, in this case, is not good enough. . . and not at all good. Calling the proposal an improvement on the current law is like calling a stake through the heart an improvement on water-boarding followed by a stake through the heart. I will remind everyone, including Mr. Nadler, that all the Democrats have to do (like all they had to do in August) is NOTHING. This colossal capitulation mistake is set to expire around Valentine’s Day—this no time to pen another love letter to the Bush Administration and its cowardly pals in Congress.

Jerrold Nadler is my Representative, and I plan to give him a piece of my mind. I urge all of you to do the same with the men and women that claim to represent you. . . especially if he or she is a Democrat. (I can’t believe I just wrote that. . . I can’t believe I just had to write that.)

Remind them that you support moral representatives that uphold their oath to defend the Constitution against all enemies, foreign and domestic—including the Bush/Cheney Administration.

Remind them that our most basic liberties hang in the balance. Tell them that you will stand by them if they stand strong themselves. Teach them what you and civil liberties experts already know about this purported FISA compromise:

‘This still authorizes the interception of Americans’ international communications without a warrant in far too many instances, and without adequate civil liberties protections,” said Kate Martin, director of the Center for National Security Studies, who was in the group that met House officials.

Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said she was troubled by the Democrats’ acceptance of broad, blanket warrants for the security agency rather than the individualized warrants traditionally required by the intelligence court.

“The Democratic leadership, philosophically, is with us,” Ms. Frederickson said. “But we need to help them realize the political case, which is that Democrats will not be in danger if they don’t reauthorize this Protect America Act. They’re nervous.

“There’s a ‘keep the majority’ mentality, which is understandable,” she said, “But we think they’re putting themselves in more danger by not standing on principle.”

Indeed, they are putting us all in danger. Let we the people try not to let that happen.

(Gosh, I guess that you just can’t really be too pissed to blog—who knew?)


Update: Apparently things are at least a little grayer than the Gray Lady would have us believe. According to Glenn Greenwald and Christy Hardin Smith, there is much to feel good about in the House version of this legislation. Christy is urging folks to call their Reps in support of the work of the House Progressive Caucus in restoring some safeguards and adding some new requirements to the FISA process.

Serves me right to go on record after only reading the paper of record.

Of course, the proof is in the endgame, which will involve the Senate and some serious backroom bullying and front room grandstanding by the likes of GW, Dick, and Mike McConnell. I am still uncomfortable with the idea of “umbrella warrants,” and, frankly, the whole idea of a secret FISA court strikes me a singularly anti-American, but, from a lobbying and calling your Representatives standpoint, perhaps it is best we keep our powder dry for the moment, and call to support what we like about this Conyers-Reyes proposal.


(cross-posted on guy2k and Daily Kos)

Swimming with Donkeys, Kicking Some Ass, Playing for Keeps (and a host of other metaphors)

This is a watershed moment for Democrats. At first blush, it might not feel that wet—the partisan Republicans packing the executive and judiciary branches are, after all, strong bulwarks against a progressive tide—or it might only feel that certain kind of wet one might get in a pissing match (a frame the establishment media is all too eager to put around the conflict between the new majority party in Congress and the dead-enders in the White House). But, this is not a pissing match, nor is it a time to tread water—how the congressional Democrats behave during the remainder of this session will define this generation of politicians for scores of Americans and set the tone for the ’08 election cycle.

Drew Weston, writing for the American Prospect, puts it like this:

The way Democrats handle their confrontation with the White House on the firing of the U.S. attorneys is as important to the party's brand on national defense as the way they handle the confrontation on the funding of the Iraq War itself. Why? Because it sends a meta-message about how they handle confrontations. The willingness of Democratic leaders such as Chuck Schumer, Harry Reid, and Nancy Pelosi to stare down the president has done far more to reassure the American people that Democrats know how to deal with aggression than all the efforts over the last five years to show that they, too, "support our troops."

I will take Weston’s insight a step further: How the Democrats confront the White House on all matters of oversight—investigating the administration’s deception in the run-up to the Iraq war, uncovering the warrantless domestic spying program(s), closing Guantanamo, ending torture and extraordinary rendition, restoring habeas rights, exposing the failures that lead to the Katrina disaster and continue to hamper Gulf Coast recovery, attempting to correct the partisan politicization of the civil rights division at the Department of Justice and the General Services Administration, prosecuting the influence peddling, cronyism, and outright larceny that has touched the Pentagon, the CIA, Commerce, DHS, the Department of the Interior, the EPA, and many more—will go a very long way to defining the Democrats as a positive force, and not just an opposition party.

Perhaps that seems strange at first—by opposing the Republican agenda, the Democrats transcend their oppositional branding—but if framed, communicated, and executed with the American people (dare I say, “the consumer”) in mind, Democrats can quickly move past saying “no,” move past being perceived as “not Republicans,” and gain brand equity as a force for constructive and noticeable change.

In other words, simply being a “not” brand is not a good positioning for Democrats. “Not” brands are weak brands—defined by their antagonist, reactive at best, reactionary at their worst. There is little that is aspirational in such a positioning; you are the lesser of two evils.

But by standing up for our Constitution, for the rule of law, for a guarantee that every vote counts, for a government for and by the people, for the right to privacy, for accountability and an honest government, the Democratic Party marries itself to the sort of iconic American values that countless beltway strategists have (wrongly) ceded to Republicans for the last decade. Being the party of the country that we set out to be two-and-a-quarter centuries ago, the country that we can be proud to be today, will go further to garner the support of so-called “values voters” than any twisted triangulation on the role of the New Testament in civil society.

And, by standing firm for the ideals laid out in the Constitution and the Declaration of Independence, and against the Republican executive’s attempts to degrade them, Democrats not only show what they are fighting for and who they are fighting for, but, that, when the fighting gets tough, they will stand their ground.

By continuing to hammer the Bush Administration and its enablers on the issues outlined above—as well as on the need for national healthcare and a living wage—Democrats will show that Americans have an ally in the everyday struggle for a better life—an ally that won’t cut and run or compromise on core values. There is no negotiating Liberty, after all, and it doesn’t look good to try.

And, by continuing to investigate, hold hearings, reign in the executive—to check and balance—by continuing to pass legislation that benefits hardworking Americans, that represents the beliefs of the majority, even if these bills just meet with a presidential veto, then Democrats will demonstrate strength far more effectively than any photo-op on an aircraft carrier.

If they can do this, Democrats will not only shed light on and throw up roadblocks to the rightwing agenda, and win the hearts of voters, they will do something almost as satisfying—they will disarm beltway blowhards. When you are acting on the instructions of the American majority, when you are advocating for the broad interests of the American people, then you are no longer engaged in a simple pissing match. When your special interest is the Constitution and the people it protects, it is not politics as usual.

Fail to stand tall, however, and you confirm every prejudice of the Paleolithic punditocracy. Talk loudly, but eventually whittle down your stick to something smaller than a souvenir miniature baseball bat, all in the interest of being seen as a team player, and you will soon find yourself handling the leather instead of the wood. You will be back on defense. It’s all a game; you’ll get ‘em next time.

Or, to go back and torture my opening metaphor, if Democrats lack the strong kick to swim with the progressive current, they will again be back to carrying the Republicans’ water, and 2006 will look like just another unremarkable high tide, rather than a defining sea change.

Or, let me put it yet another way: Don’t play for time—play for keeps.


(cross-posted to Daily Kos)

Happy “Law Day”

I know, you thought it was May Day, but, as a New York Times editorial reminds us:

President Dwight Eisenhower established May 1 as Law Day to co-opt the biggest day on the socialist calendar. While much of the world marked May Day with critiques of capitalism and parades celebrating working men and women, the United States would honor, President Eisenhower declared, the “national dedication to the principle of government under laws.”

A dumb beginning, true, but as the Times points out, in the age of King George 43, “not a bad idea.” And they add this interesting fact:

Law Day proved to be a boon to international law, which was seen during the cold war as a check on communism. In his proclamation creating the holiday, Eisenhower emphasized law’s role “in the settlement of international disputes.” On Law Day 1959, Senator Prescott Bush of Connecticut, grandfather of the current president, urged, remarkably, that international conflicts be settled by the World Court.

Which makes it all the more ridiculous and sad that while the editorial staff was acknowledging that

. . . for six years now, the rule of law has been under attack. An array of doctrines has emerged to undermine it, like the enemy combatant doctrine, which says people can be held indefinitely without trial. . .

Times reporter Linda Greenhouse and her editors on the news pages could barely be bothered to note the latest developments in the enemy combatant saga and the continued trampling of our Constitution by the Bush Administration and its puppet-dominated Supreme Court:

In another action, the court turned, without comment, down the latest appeals by two Guantánamo detainees, Salim A. Hamdan and Omar Khadr. Justices Ruth Bader Ginsburg, David H. Souter, and Stephen G. Breyer dissented, as they had earlier this month. The case was Hamdan v. Gates, No. 06-1169.

Those three sentences are the last paragraph—and the only mention of this—in a long article about Monday’s Supreme Court business that mostly concerns itself with the (also horrible) decision to find for the police in reckless car chases.

While I’m happy to see that case covered, the unfathomably short shrift that Greenhouse and the Times give this latest turn in the Hamdan case and the challenges to the US Constitution raised by the Military Commissions Act show that while some at the paper have come to praise the rule of law, the news czars still choose to bury it.

Shame—on the Supreme Court. . . and the New York Times.


(cross-posted to Daily Kos)