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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, November 28, 2006

The next two years

In an excellent new New Yorker article, Jeffrey Toobin documents how Arlen Specter lambasted the Military Commissions Act as a tyrannical, unconstitutional, profoundly unjust atrocity, only to then, like the good boy that he is, cast his vote in favor of it. After his habeas corpus amendment failed, "Specter, visibly angry, left the Senate chamber. He told reporters that he thought the habeas ban was 'patently unconstitutional' and vowed to vote against the detainee bill." The next day -- the next day -- he voted in favor of it. That's just sad.

But one of the most glorious results of the midterm elections is that it has relegated former-Chairman Specter (such a nice-sounding phrase) to an inconsequential afterthought. The more important aspect of Toobin's article is that it provides an important and potent reminder that while it is nice that Democrats, rather than Bush-loyal Republicans, now control Congress, the people who occupy the White House don't think that matters because they believe -- literally -- that Congress has no power to restrain what they do.

One episode which Toobin recounts is that Lindsey Graham travelled with Dick Cheney's counsel, John-Yoo-copycat David Addington, to Guantanamo in 2002, and on the way back, Graham tried to convince Addington to "allow" Congress to enact legislation legalizing the administration's detention and interrogation practices (which, as of that time, had no legal authorization whatsoever). In other words, just like they wanted to do with the President's illegal warrantless eavesdropping program, Congress pleaded with the Bush administration after the fact to be permitted to pass legislation approving of what the President had ordered.

But the administration refused to allow Congress to authorize what they were doing because the administration wanted it to be as clear as could be that they could do whatever they wanted in the national security area (defined as broadly as possible) and that Congress had no role whatsoever to play -- even to rubber-stamp the Leader's Will:

The Bush Administration, believing that the treatment of the detainees was a matter that belonged under the exclusive control of the executive branch, was disdainful of attempts by Congress to address the issue. “I went down to Guantánamo with a group of senators shortly after it opened, and Dave Addington was also on the trip,” Lindsey Graham, the Republican senator from South Carolina, recalled, referring to Vice-President Dick Cheney’s counsel, who has been a leading advocate in the Administration for a broad view of Presidential power.

“As we were flying back to the States, I pulled Dave aside on the plane and said, ‘You really need to come over and draft some legislation with us, and, if you do that, the Supreme Court will be much more likely to uphold what we do. It would be better to work in concert with each other when it comes to wartime decision-making about how you try and interrogate a prisoner.’

“I remember Dave had a copy of the Constitution he carried around with him,” Graham went on. “He took it out, and he said the Administration didn’t need congressional authorization for what it was doing. The President had the inherent authority to handle the prisoners any way he wanted. And I said, ‘ That may be a good legal argument, but it’s not a good political argument. The more united the nation, the better it is for everyone.’ But Dave said, ‘ Thanks but no thanks.’

On Sunday, the Boston Globe's Charlie Savage -- one of the country's few real "journalists" in the meaningful sense of that term -- documented Dick Cheney's decades-long obsession with vesting all power in a single authoritarian leader and rendering Congress almost completely impotent, nothing more than a symbolic body. One of the incidents which Savage described, one of which I was not previously aware, is that Cheney actually urged the first President Bush not to seek Congressional approval for the Persian Gulf War, arguing that the President had the power to start whatever wars he wanted regardless of whether Congress approved or not:

"I was not enthusiastic about going to Congress for an additional grant of authority," Cheney recalled in a 1996 PBS "Frontline" documentary. "I was concerned that they might well vote 'no' and that would make life more difficult for us."

Notice that, in Cheney's authoritarian mind, if Congress had voted "no" on the question of whether to declare war (or provide the President with the authorization to use military force), that would not have meant that they couldn't start the war. It just would have "made life more difficult" for them. As I have documented before, there is simply no question -- none -- that the Bush administration believes it has the power to initiate wars against other countries, such as Iran or Syria or anyone else, without having even a pretense of Congressional approval.

And starting wars isn't the only thing they believe they can do without Congressional approval. As a Congressman, Cheney was the ranking Republican in 1987 on the Committee investigating the Iran-Contra affair and, as Savage details, he expressly argued that the President had the power to ignore the Boland Amendments, the Congressional prohibition on the providing of support to the Nicaraguan contras, on the ground that Congress has no power to restrict the President's national security decisions. As Savage reports: "The 'committee issued a scathing, bipartisan report accusing White House officials of 'disdain for the law,'" which Cheney refused to sign.

Democrats replaced Republicans in Congress as a result of the midterm election but nobody has replaced Dick Cheney and George Bush. And they see Congress as irrelevant. The increasingly assertive defender of American values, the American Patriot Pat Leahy, explains in Toobin's article how Congress functioned for the last five years and what it reveals about the "character" of those who still rule the executive branch:

Specter’s own beliefs appear to have changed little over the years, but he has been forced to work in an environment in which the Republican Party, especially in Congress, has imposed ever-tighter discipline. “When Lyndon Johnson became Vice-President, he wasn’t welcome at Senate Democratic caucus meetings anymore, because it was for senators only,” Patrick Leahy, the ranking Democrat on the Judiciary Committee, told me.

“But every Tuesday since Bush has been President it’s been like a Mafia funeral around here. There are, like, fifteen cars with lights and sirens, and Cheney and Karl Rove come to the Republican caucus meetings and tell those guys what to do. It’s all ‘Yes, sir, yes, sir.’ I bet there is not a lot of dissent that goes on in that room. In thirty-two years in the Senate, I have never seen a Congress roll over and play dead like this one.”

There are a lot of Democrats who, understandably enough, seem all excited about the great new policies and legislation they think they can enact now. And many people are equally excited (at least) about the Congressional investigations that are going to commence. But it is vital to keep at the forefront of our political discussions the fact that the Bush administration is composed of individuals who do not recognize the rule of law or the authority of Congress to do much of anything, and -- unless they are absolutely forced to do so, and it's unclear what that might include -- they are not going to comply with these things we used to call "laws" or with Congressional subpoenas and other mandates because they believe they do not have to. And they have said so expressly, time and again.

The rule of law is being made a mockery of every day by an administration that continues to eavesdrop on us without warrants even though there is still a law in place that makes doing that a felony punishable by five years in prison and a $10,000 fine. The Yoo Theory of Presidential Omnipotence is still the official and embraced position of the executive branch. Neither it nor its adherents have gone anywhere.

And we still don't know whether the last two years of this administration will be driven by the broken, humbled, tired and drained President whom we saw the day after the elections, or by a more-than-ever embittered and contemptuous Cheney-led administration bent on more war-making and lawlessness. I think most people assume, quite correctly, that it will be the latter.

It is good to hear Democrats talking about their intentions to investigate and to exercise oversight and impose limits on the administration's behavior, but it is vital that they recognize that doing that is not going to happen easily. It will require some extremely contentious confrontations and very difficult fights to enforce the rule of law.

There are going to be all sorts of pressures placed on those who want to impose genuine limits on this President -- from the bipartisan/centrist fetishists in the media who will condemn such measures as shrill and extremist to threats and attacks from the administration's filth machine to Congressional Democrats eager to win Beltway approval by showing they are serious, sensible, responsible, etc. But there is no more urgent task than restoring the basic principles of our system of government, and it remains to be seen whether there are Democrats in Congress who are up to that Herculean task.

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