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, June 06, 2006

Media awakening to Bush lawlessness

by Glenn Greenwald

(updated below)

There is a potentially significant front-page article today in USA Today which claims -- with a mild amount of persuasiveness -- that "there are tentative signs that Congress and the courts are beginning to push back against what has been the greatest expansion of presidential powers in a generation or more." The article details various incidents which, it suggests, demonstrates that courts, Congress and even the American people are finally awakening to just how extremist the Bush administration's seizures of power are, and are beginning to take steps to impose restraints on the President.

According to the article, public opinion has clearly shifted on these issues:

Now, about half of Americans surveyed by USA TODAY/Gallup from Thursday to Sunday say the Bush administration has "gone too far in expanding the power of the presidency." About one-third say it has struck the right balance. Just 14% say it hasn't gone far enough.

To buttress the claim that there is a sea change in the willingness of Congress to stand up to the President's claims of limitless power, the article cites examples such as Congressional anger over the Jefferson search, the recent 9-6 vote of the Senate Intelligence Committee (with two GOP defections, Snowe and Hagel) to require full briefings on all intelligence matters, the Dubai port rebellion, and the alleged attempts by Congress to force the administration to comply with the McCain anti-torture law which Congress passed overwhelmingly but which the administration clearly intends to ignore.

The article also references the judicial rebuking of the administration by Judge Luttig in the Padilla case, as well as the Supreme Court's imminent decision on the legality of Guantanamo military tribunals, as evidence that courts are becoming increasingly skeptical of the administration's radical power theories. All of these events led Bruce Fein, who has great credibility on these issues, to observe:

Still, Bruce Fein, a Justice Department official in the Reagan administration, says Congress' attitude toward the White House is toughening a bit. "We're seeing, maybe, the embryonic stages of drawing the line and saying: 'Here. No more,' " he says.

And in a perversely amusing paragraph, Arlen Specter obviously thinks that it is now safe to meaningfully oppose the administration, because he tries, in the article, to depict himself as one of the early, lone warriors standing up to the administration's excesses when nobody else was brave enough to do so:

"You ask, 'Is the tide shifting?' and I say, 'Maybe, maybe,' " says Senate Judiciary Chairman Arlen Specter, R-Pa., who has pushed for stronger congressional oversight of intelligence operations. "If you ask me if I still feel like a lonely voice, I would say that I feel like a member of a small chorus."

The article is most notable for its accurate description of the Bush power theories as being unprecedented in our nation's history -- one of the very few times this self-evident fact has been stated clearly and unapologetically in a national media outlet outside of The Boston Globe:

Tom Mann, a congressional scholar at the Brookings Institution, says Bush has exceeded even the expansive view that Franklin Roosevelt took of the presidency during the buildup to World War II.

Analysts credit Bush's ability to prevail in large part to the aftermath of 9/11, which buttressed Americans' backing for a president with the power to battle a shadowy and terrifying foe. In the fiercely partisan climate of Washington, the Republican-controlled House and Senate generally have lined up behind Bush, not challenged him.

"For five years, this Congress has been breathtakingly supine in the face of the most aggressive assertions of executive power we have seen in modern American history," Mann says. Even now, he says, the House "blowback" over the Jefferson search "probably wouldn't have happened if we didn't have a president whose popularity is in the low 30s."

While I don't yet share this optimism over Congress' supposed re-discovery of its institutional purpose, it is clearly the case that Bush's weaknesses are significant and growing, and those weaknesses render him far more vulnerable to being challenged on all fronts. The USA Today article accurately describes the reasons why some optimism on these issues is justified:

Bush's dismal job-approval ratings have made critics in Congress and elsewhere more willing to confront him. Another factor: As time passes the threat of
terrorism remains a potent argument but may no longer automatically trump other issues.

The only real weapon this administration possesses -- exploiting fears of terrorism -- simply isn't working well any longer. The growing emotional distance between now and 9/11 has -- for all but the most hysterical and frightened Americans -- put the terrorist threat into its proper perspective along side other threats. And even for those still vulnerable to fear-mongering, the lack of trust in the president means that mere invocation of protection promises no longer suffice to induce the public to overlook the administration's ineptitude and misconduct.

The theories of power claimed by this administration are so patently contrary to the ingrained beliefs which Americans have about our country that I do not think it will take all that much to induce real opposition and anger. The reason the opposition has been muted is not because Americans know what the administration is doing but don't care. It's because they don't know what the administration has been doing, because the national press has so profoundly failed in its duty to inform them. Articles such as this one from USA Today were unthinkable several months ago -- when the only discussion of Bush lawlessness was taking place in the blogosphere. But the steady emergence of articles like this one signify that these issues will, finally, receive the attention they deserve.

UPDATE: I will be at the University of Florida today at 4:00 p.m. for a Book Talk, at the Civic Media Center. Tomorrow, I will be in San Francisco at Book Passages for a book signing at 7:00 p.m. (1 Ferry Bldg # 34). On Thursday, I will be on the Will & Willy Show from 8:00-8:30 a.m, and then at a W&W book signing from 8:30-10:00 a.m. (Hotel Vitale, 8 Mission St.). The same day, there will be a Book Launch Party from 6:00-8:00 p.m. at Swig (561 Geary); if you are interested in attending, please e-mail Jennifer Nix ( for a ticket. On Friday, from 12:00-1:00 p.m., I will be at the Working Assets Speakers Series Lunch (101 Market - RSVP: 415-369-2158). I'll post other SF events, including media appearances, as they are confirmed.

From June 10-12, I'll be in Las Vegas for Yearly Kos, including a book signing, along with a panel I am on (regarding privacy and civil liberties issues) with Ralph Neas of People for the American Way and Jeani Murray, the National Field Director for the ACLU. I'll be in Washington, DC from June 12-14 and then New York from June 15-18 and will post the specific events as those dates approach.

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