Tuesday, May 30, 2006

Our Constitutional Crisis

Gary Hart and Joyce Appleby have a long and substantial post up on the Huffington Post about the nature of the Constitutional crisis facing the nation. Key graphs here:

During the Cold War, intelligence became a marshal's baton. Those who had access to it, particularly the president, held a trump card over those who did not. The theme of "if you only knew what I knew you wouldn't question my decisions" helped a succession of Cold War president keep Congressional inquiries at bay. It has resonated most blatantly in the George W. Bush administration. "We know secrets having to do with national security that we cannot divulge even to Congress, let alone the American people," has been their message. Access to intelligence, real or imagined, became the justification for unilateral presidential action.

Bush's prosecution of the Iraq war has included similar abuses. The Foreign Intelligence Surveillance Act, providing Constitutional means to carry out surveillance, and the Intelligence Identification Protection Act, protecting the identity of undercover intelligence agents, have both been violated by an administration seeking to "restore the power of the presidency," even those powers have been explicitly prohibited by acts of Congress.

The issue of presidential power in wartime has plagued the American republic throughout its history. Once past the founding era principle of "no foreign entanglements," various administrations have tried to use conflict, whether genuine or not, to consolidate and concentrate power in the executive branch. Characterizing the fight against terror as a war has accelerated this pernicious development.

Terror is a method not an ideology or tangible enemy, but declaring "war" on it has enabled the Bush administration to justify unlimited detention of "enemy combatants" (a unique, self-invented category meant to avoid both the criminal justice system and international conventions). So too has the "war on terror" permitted surreptitious domestic wiretaps and surveillance, in violation of U.S. law and in circumvention of established judicial warrant procedures. Its exigencies have been called in to defend unilateral, preemptive invasions of sovereign states....

... Al Qaeda provided the opportunity to carry out the long awaited project of restoring a dominant executive branch. War is always a convenient excuse to do that. Instead of overtly and directly announcing their intensions, the executive "restorationists" carried out their project largely in secret. No speeches were given, no mandate articulated. Senior Bush administration officials simply went about their business of making the presidency primus inter pares despite the importance in the Constitution of maintaining a balance.

The creation of a constitutional crisis became virtually inevitable once this program was in gear. Though the systematic effort to place ideologically motivated judges in federal district courts, courts of appeals, and Supreme Court positions was largely read as motivated by a social agenda centered on reversal of Roe v. Wade, there is now reason to believe that this effort was even more motivated by a realization that extra-constitutional concentration of power in the executive would, sooner or later, required judicial scrutiny and approval.

The Bush administration has built on the Cold War foundations of an imperial president, accelerating the rate of the power shift and openly defending the unlimited nature of the president's power in time of war. Five years and many decisions later, President Bush and his most trusted advisors have pushed the expansion of presidential power so far that we now confront a constitutional crisis.

President Bush has given Commander-in-chief Bush unlimited wartime authority. Relying upon legal opinions from Attorney General Albert Gonzales, then working in the White House, and John Yoo, in the Justice Department, Bush has insisted that there can be no limits to the power of the commander-in-chief in time of war. More recently the president has claimed that laws relating to domestic spying and the torture of detainees do not apply to him.

President Bush's interpretation of his war powers has produced a devilish conundrum, for no peace treaty can possibly bring an end to the fight against terror. There will always be some rogue terrorist. The emergency powers of the president during this "war" can now extend indefinitely, at the pleasure of the president and at great threat to the liberties and rights guaranteed us under the Constitution. The entire scheme has required not just a president intent on accumulating and consolidating executive power, but a compliant Congress, and a judiciary willing to ratify this systematic march toward a quasi-authoritarian structure as well. Arguably, there is no precedent for this dangerous project in American history. Upon its outcome could rest the future of our republic.

There is yet more to read about the nature of the constitution and the deliberate subversion of its checks and balances. Please take time to read the whole thing.

There are two sides to the current Rethuglican assault upon the nation. One is out and out corruption, brought to apotheosis in the K Street Project, to use the federal government as a cash machine for the friends of crooked polititicians. It is the same as we saw in the Gilded Age, and done for exactly the same reasons - there's money for me to steal from you, and I'm going to do it. These guys don't give a rat's ass about governing or public service. They are there for the money.

The second is a frontal attack on the foundations of the nation as such, a deliberate and calculated program to gut out the substance of our laws and turn the nation into an authoritarian state. It is done by declaring perpetual war, and then eviscerating the institutions constructed to place limits upon executive power. As I argued in an earlier post, the doctrines proposed by Abu Gonzales and "Let's Incarcerate" Yoo have the goal of removing barriers and limitations on the arbitrary exercise of power.

The second is by far the more pernicious and dangerous, as it is pursuit of power for power's sake.

The Democrats must win back and hold Congress to clean up the first. Without the ATM machine open, business will be far less interested in supporting "the war effort". But don't forget that MZM is run by a guy deeply involved in the Contra imperial adventure of the Reagan era. Look to the Cunningham scandal to expose the intertwined operations of greed and power.

As for the second, it will take wresting the White House away from the Rethugs and their fascist supporters in broadcasting, and having an administration brave and honest enough to reject the ways in which lawlessness has been woven into the everyday operation of the executive office, exposing the dangers that giving that much power to one branch of government will do to the nation, and then leading the dismantling of those constructs.

Impossible? Perhaps, but what is the alternative?


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