Res Ipsa Loquitur

I found this in the New York Times review of books:

The public scenes of the President surrounded by smiling legislators whom he praises for their wonderful work as he hands out the pens he has used to sign the bill are often utterly misleading. The elected officials aren't informed at that time of the President's real intentions concerning the law. After they leave, the President's signing statements—which he does not issue verbally at the time of signing— are placed in the Federal Register, a compendium of US laws, which members of Congress rarely read. And they are often so technical, referring as they do to this subsection and that statute, that they are difficult to understand.

For five years, Bush has been issuing a series of signing statements which amount to a systematic attempt to take power from the legislative branch. Though Ronald Reagan started issuing signing statements to set forth his own position on a piece of legislation, he did it essentially to guide possible court rulings, and he only occasionally objected to a particular provision of a bill. Though subsequent presidents also issued such statements, they came nowhere near to making the extraordinary claims [of power] that Bush has; nor did they make such statements nearly so often.

"A gutless Republican worm cowering in the face of pressure from the administration and fellow Republicans."  That's how Jack Cafferty is describing Arlen Specter, who made a good show of the possibility of holding Bush's feet to the fire on domestic spying, but then when the cameras stopped rolling, he caved.

Instead of hearings, Orrin Hatch has received "assurances" from Cheney.  We all know what it means when the Bush administration assures Congress of anything: they're lying through their teeth. 

Senators like Specter are in many ways worse than those who openly support the imperial presidency, because they talk a good game--and make it look like we have a system of checks and balances in operation--but then do nothing about it.  This is just further evidence that there are no Republican "moderates" left, only collaborators in the construction of a full-blown dictatorship.

OK, so we know that President Bush has never vetoed a bill, the first president to not do so since the 1800's.  We also know that instead of using the veto power, which can be overridden and is very public, Bush signs the bills but attaches a signing statement in which he carves out an exception or declares that a provision will be completely ignored.  Examples include the ban on torture, oversight requirements of the USA PATRIOT Act, and about 748 other ones, all designed to increase the scope of presidential power.

A recent article provides a bit more of a window into this process.  Turns out that David Addington, one of Cheney's staff, is responsible for reviewing all the legislation passed by Congress and flagging any of it that might contradict with Dick Cheney's expansive view of that power.  The White House legal team then presumably writes up the signing statement, and Bush puts pen to paper.  The Constitutional scholars in the article seem to agree with me that this is clearly cannot be reconciled with the Constitution:

Cheney's office has taken the lead in challenging many of these laws, officials said, because they run counter to an expansive view of executive power that Cheney has cultivated for the past 30 years. Under the theory, Congress cannot pass laws that place restrictions or requirements on how the president runs the military and spy agencies. Nor can it pass laws giving government officials the power or responsibility to act independently of the president.

Mainstream legal scholars across the political spectrum reject Cheney's expansive view of presidential authority, saying the Constitution gives Congress the power to make all rules and regulations for the military and the executive branch and the Supreme Court has consistently upheld laws giving bureaucrats and certain prosecutors the power to act independently of the president.

The veto power is the President's only allowed method of blocking legislation that has been duly passed by both houses of Congress; what this amounts to is an abdication of the President's duty to faithfully execute the laws that he himself has approved.

Despite how this appears, as in the image above, Bush cannot be excused as simply ignorant of what he is doing:

Martin Lederman , who worked in the Justice Department's Office of Legal Counsel under presidents Bill Clinton and George W. Bush , said that Addington is simply doing the day-to-day legwork for Cheney and that he is influential within the administration because of the vice president's desire to enhance executive power and Bush's willingness to endorse Cheney's views.

``In every administration, Democratic and Republican, there are officials with strongly held constitutional views, including somewhat idiosyncratic views," said Lederman, now a law professor at Georgetown University. ``What is new is that the extremely idiosyncratic and aggressive constitutional views are being adopted by the vice president and, therefore, by the administration."

I just discovered the other day that the Ashland Daily Independent printed my letter to the editor about the fall congressional races.  A friend from high school told me at the gym that he had seen it, and that he completely agreed with me.  A very good sign considering he was a Bush voter before; I wonder how many more are out there?

Fall Congressional races are critical

I’m writing to urge citizens to participate in the midterm congressional elections this fall.

The issues couldn't be more crystal clear. President Bush has presided over a concerted effort to expand the powers of the presidency at the expense of Congress (and hence, us all). He gave the green light to warrantless wiretapping of American citizens in direct contravention of the Foreign Intelligence Surveillance Act and continues to assert the power to do so.

The situation we face is made more dire by the fact that Republicans in Congress — even the fabled “moderates” and “mavericks” — are rubber-stamping the president. They’ve apparently not contemplated that they are handing a loaded gun to Bush and future presidents.

With no restraints on the president’s ability to spy on Americans, overturn laws and suspend due process, the next terrorist attack on American soil will be the day we mourn not only loss of life but the further erosion of our liberties.

We need a Congress that is willing to do its job — to exercise the power of the purse and subpoena to stand up to this reckless president. That won't happen until we have Democratic leadership; Republicans in Congress have amply demonstrated that.

Justin Faulkner

Catlettsburg

Sorry I haven't posted much lately, I've been concentrating on the wonderful new girlfriend in my life and honestly haven't been home all that much.  I wanted to relate this comment ary from Balkinization about illegality and corruption on the part of the Republican White House and Congress.  It's such a powerful post that I don't think I could add much, but a quick summary is in order.  From what I can tell, an executive branch raid on a Congressman's office has the Rubber-Stamp Republicans spooked.  Despite approvals by these true believers of virtually every expansion of presidential power, now they're crying foul because it has hit home.  Too little, too late, I say; if there's any justice in this world the litmus test for 2006 will be whether a candidate is willing to stand up to the White House.  By that measure, most of the current crew should be kicked out.

The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority.

...

Make no mistake: the real reason why Congress is so concerned about the raid on Jefferson's office is that many of them know that corruption within Congress is rampant. If the FBI and the Justice Department can start getting serious about investigating corruption in Congress, many of their colleagues (and possibly they themselves) could be next. Is it any accident, do you think, that instead of trumpeting corruption by a Democratic Congressman, Speaker Hastert-- who himself is rumored to be under investigation in the Abramoff affair-- is objecting loudly to the search of Jefferson's office?

The American Constitution is premised on the idea that any Executive overreaching that might take us on the path to tyranny and dictatorship would be met with Congressional objection and Congressional oversight. For six years we have been subjected to an arrogant, self-righteous, and incompetent Administration, which has grabbed for power and avoided accountability in every way it could, chipping away at Americans' proud traditions of freedom, harming our country's interests around the world and undermining the deliberative processes that produce sound policy and good governance. It is an Administration blinded by smug self-righteousness, devoted not to the development of competent and sound policies for the governance of our country, but to the concentration and perpetuation of its own power. But at the moment that we need the Congress most, it is feckless, corrupt, and venal, offering no resistance to mounting evidence of this Administration's illegality and incompetence. If Congress now finds that Executive power is encroaching a bit too close for comfort, it is poetic justice, for this Congress has thoroughly abdicated its constitutional responsibilities to protect the American people from Executive overreaching.

...but for some reason this segment on Scarborough Country about the NSA "Phone Tap Fiasco" leaves a strange taste in my mouth.  Probably because I realize that people are more likely to understand how the Bush administration is trying to trample all constitutional barriers to absolute executive power (i.e. dictatorship) when it's delivered as an analogy based on popular movies and television. And that's pretty fucking sad. It's just too flashy and tongue-in-cheek, I guess; why use "There's something about Mary" as an example of abuse of power when there are so many more legitimately chilling ones?

It's simple: his tenure at the NSA would have included overseeing the warrantless domestic spying, which is flat-out illegal.  As a military officer, and a government official, he had a duty to report (and not cooperate with) violations of the law.  By not fulfilling that duty, he's demonstrated that he can't be trusted.

Jack Cafferty:

We all hope nothing happens to Arlen Specter, the Republican head of the Senate Judiciary Committee, cause he might be all that stands between us and a full blown dictatorship in this country. He's vowed to question these phone company executives about volunteering to provide the government with my telephone records, and yours, and tens of millions of other Americans.

Shortly after 9/11, AT7T, Verizon, and BellSouth began providing the super-secret NSA with information on phone calls of millions of our citizens, all part of the War on Terror, President Bush says. Why don't you go find Osama bin Laden, and seal the country's borders, and start inspecting the containers that come into our ports?

The President rushed out this morning in the wake of this front page story in USA Today and declared the government is doing nothing wrong, and all this is just fine. Is it? Is it legal? Then why did the Justice Department suddenly drop its investigation of the warrantless spying on citizens because the NSA said Justice Department lawyers didn't have the necessary security clearance to do the investigation. Read that sentence again. A secret government agency has told our Justice Department that it's not allowed to investigate it. And the Justice Department just says ok and drops the whole thing. We're in some serious trouble, boys and girls"

Tens of millions of people's phone records....does that sound like narrowly targeting Al-Qaeda to you?  How many more times will people foolishly give them the benefit of the doubt?  And how many more dupes of the public can we afford before the mechanisms of government accountability that form the backbone of our democracy are tattered beyond repair?

Howard Fineman:

Bush and Rove are daring the Democrats to turn the nomination of Gen. Michael Hayden as head of the CIA into a fight over the president’s secret eavesdropping program. That’s a fight they think they can win politically, by turning a legitimate constitutional issue into another Us vs. Them morality play.

I would advise Democrats at this point to shove the warrantless wiretapping down Bush's throat at every opportunity. If that means opposing Hayden's nomination, so be it. It's a losing issue for Republicans because they are defending the indefensible: the shredding of the Constitution.

I'm headed out the door pretty soon so I won't elaborate too much, but these three things just can't be allowed to pass unnoticed. 

First, some details about Bush's illegal wiretap program have been confirmed:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

Isn't it nice to know that these phone companies are assisting the executive branch in breaking the law?

Next, I thought I might point out this entry at Balkinization highlighting the Pentagon's desire to send death squads into countries with which we are not at war to kill and perform black bag jobs:

...surely the US would not tolerate a President who would even think of turning us into an up-market version of Argentina, Chile, and El Salvador and their own domestic "disappearances" and "death squads." But where is the public debate about our foreign death squads? Will Democrats continue to be so cowed that they will refuse to challenge this latest foray into fascist-style tactics by Rumsfeld and Boykin lest they be charged by the raging bull Karl Rove as "soft on national security" as we enter into the 2006 elections that Rove is determined to win by any means necessary. And if the operation of foreign death squads is tolerated, then why not in the US?

Levinson asks what would prevent these death squads from being used in the territorial US. After all, the Bush administration claims that their war is without boundaries, and Bush has asserted the power to ignore duly enacted statutes (aka laws) and the Constitution as well.

Finally, there's a good video up at Crooks and Liars in which Jonathan Turley, a constitutional law expert, notes that he has never seen a president so uncomfortable in his "constitutional skin:"

Well, first of all this President's theory of his power I think is now so extreme that it's unprecedented. He believes that he has the inherent authority to violate federal law. He has said that. Not just the signing statements and the infamous torture memo-that Alberto Gonzales signed. It was stated that he could in some circumstances order federal officials to violate federal law and this is consistent across the board with this President. Frankly, I'm not too sure what he thought he was swearing to when he took the oath of office to uphold the Constitution and our laws. I've never seen a President who is so uncomfortable in his constitutional skin.

From Wired:

Former National Security Agency director Bobby Ray Inman lashed out at the Bush administration Monday night over its continued use of warrantless domestic wiretaps, making him one of the highest-ranking former intelligence officials to criticize the program in public, analysts say.

“This activity is not authorized,” Inman said, as part of a panel discussion on eavesdropping that was sponsored by The New York Public Library. The Bush administration “need(s) to get away from the idea that they can continue doing it.”

...In 1978, Inman helped spearhead the effort to pass the Foreign Intelligence Surveillance Act, or FISA, which makes it illegal to eavesdrop on American citizens without court approval. Inman said he wouldn’t have a problem sidestepping that law—as a “limited response to an emergency situation,” like the terror attacks of Sept. 11, 2001. But nearly five years since those strikes, the NSA is continuing to track phone calls and e-mails without warrants.

This isn't a partisan issue, it's a matter of bedrock American principle. The President is not above the law...we are a nation of laws, not men.  Bush needs to come back within the law or face serious consequences from Congress.

Aparently Specter has set up hearings to look into the 750 laws Bush doesn't think he has to execute faithfully.

Will he go out of his way again to avoid putting Gonzales under oath again, giving him a free pass to deceive the committee?  Or will he change his rubber-stamping ways and really look into this?  I'm skeptical, but stay tuned...

Balkinization chimes in with a few words to say about the Boston Globe article covering Bush's extensive use of signing statements:

Bush is not the first President to try this strategy, but he has taken it to new extremes, making it a regular part of his relationship to law, as Savage details in his article. Making this a regular and pervasive practice is constitutionally worrisome, because it allows the President to escape responsibility for enforcing laws that he himself signs into law based on what may be unreasonable claims about constitutionality which are devised primarily to increase his own power. It allows the President to gain many of the advantages of the veto without incurring the political disadvantages, and it allows him, by riddling bills with exceptions in how he will enforce them, to produce what is in effect legislation that Congress never passed. In this way, Bush does an end run around the logic of separation of powers, one of whose central purposes, it should be pointed out, is to restrain the arbitrary exercise of power.

Bush has already adopted President Nixon's view that if the President authorizes something, it isn't illegal, despite what the text of the law says. Now Bush has taken the converse position that if the President doesn't agree with legislation, even legislation that he signs, it isn't law. Together, these two attitudes are deeply corrosive of the Rule of Law and move us down the path to a dictatorial conception of Presidential power-- that is, the conception that the President on his own may dictate what is and what is not law, rather than the President merely being the person in constitutional system entrusted with faithful implementation and enforcement of the law.

Couldn't have said it better.  The Bush administration makes me ashamed to be an American sometimes.

(Crossposted on ljdemocrats and ljlunaticfringe )

Jacob Hornberger wrote an article on the 26th called Democratic Dictatorship that anyone who cares about freedom should take a look at.  In it he first takes a look at our situation:

No restraints on declaring and waging war against other nations. No restraints on the power to secretly record telephone conversations of the American people. No restraints on the power to kidnap and send people into overseas concentration camps for the purpose of torture and even execution. No restraints on the power to take Americans into custody as “enemy combatants” and punish them — even torture and execute them — without due process of law and jury trials.

If all that isn’t dictatorship, what is?

( Read more... )

It's a start, anyways:

Senate Judiciary Committee Chairman Arlen Specter said Thursday he is considering legislation to cut off funding for the Bush administration's secret domestic wiretapping program until he gets satisfactory answers about it from theWhite House.

"Institutionally, the presidency is walking all over Congress at the moment," Specter, R-Pa., told the panel. "If we are to maintain our institutional prerogative, that may be the only way we can do it." Specter said he had informed President Bush about his intention and that he has attracted several potential co-sponsors. He said he's become increasingly frustrated in trying to elicit information about the program from senior White House officials at several public hearings.

According to a copy of the amendment obtained by The Associated Press, it would enact a "prohibition on use of funds for domestic electronic surveillance for foreign intelligence purposes unless Congress is kept fully and currently informed."

Specter also agreed with Democrats who say that any of the bills to tighten guidelines for National Security Agency program and increase congressional oversight could be flatly ignored by an administration with a long history of acting alone in security matters.

"It is true that we have no assurance that the president would follow any statute that we enact," Specter said. He said he's considering adding an amendment to stop funding of the program to an Iraq war- hurricane relief bill being debated by the Senate this week and next.

Some thoughts: it's good to see open acknowledgment of the fact that Bush has abandoned the rule of law.  Now we just have to take it the next step.  I'll believe it when I see it--the so-called "moderate Republicans" usually talk a good game then bow down to dear Leader in the end--but it looks like the call for censure by Senator Feingold has at least had the effect of keeping this issue on the radar screen. Congress has the power to stand up to the President and I think by invoking the power of the purse Specter is thinking along the right lines. Let's hope that he really does have a few Republican cosponsors and that Dems will line up behind the bill when proposed.

But like Specter says, since this entire fiasco centers on Bush's self-proclaimed "authority" to override duly enacted laws, what reason is there to think that they wouldn't just ignore any such action by Congress (as with the recent prohibition on torture, etc)?  Congress must call the administration's bluff because what they're hoping for is no action on the part of Congress, in order to establish a new (most would say unconstitutional) balance of power tilted in the extreme towards the executive branch:

"Terrorism is not the only new danger of this era," noted George F. Will, the conservative columnist. "Another is the administration’s argument that because the president is commander in chief, he is the ’sole organ for the nation in foreign affairs’ … [which] is refuted by the Constitution’s plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws ‘necessary and proper’ for the execution of all presidential powers."

Unfortunately we may need a Democratic Congress to ever see that institution fully reassert itself...I predict that most Republicans will keep rubber-stamping away.

For embarrassing the President during his photo op with Chinese President Hu, this woman protesting religious persecution in China has been charged with disorderly conduct, and possibly "intimidation" of foreign officials. Specifically, she was protesting the imprisonment, torture and execution of Falun Gong (a chinese religious group) members by the Chinese government.

It illuminates the hypocrisy of George Bush, calling for freedom of expression in China while quashing it at home. No wonder the US has no international credibility on these issues anymore. And isn't it kind of repugnant that we would help them cover up torture and arbitrary imprisonment?  Oh that's right, Hu is in pretty good company after all...

Concerning the revalation that it was, in fact, George W. Bush himself who told Scooter Libby to selectively leak classified information:

Many people seem to have forgotten the fact that selectively leaking portions of the National Intelligence Estimate--whether the president had the legal authority to do it or not--had as its aim the calculated deception of the American people.  The White House admits that they were attempting to "rebut" Joe Wilson (a more accurate word might be to dishonestly destroy and discredit) but what's important to remember is that the information they leaked proved to be completely false and misleading (aluminum tubes and Nigerian uranium, anyone?).  And they knew these claims were false before they were ever uttered as War Buildup Propaganda@. 

I dont know of anybody in my administration who leaked classified information.  If someone did leak classified information, I'd like to know about it, and we'll take the appropriate action.  -- G.W.Bush, Sep. 30, 2003

This isn't an isolated incident, of course. Exaggeration, half-truths, omission of information to mislead and flat-out, bald-faced lies seem to have become common currency the past few years.  Once enough people realize how little this administration (and truly, the Republican party itself) respects them and how they think of them as children that need to be manipulated, the shit will hit the fan.

...there's no foul, says the Bush administration.  After all, in Republican world, He IS the law, and so if he leaks the information cannot by definition be classified.  That seems to be the general message anyways.  Richard Nixon would be proud.

CJR Daily (in re: USA Today), 3/24/2006:

The head of U.S. reconstruction efforts in Iraq has declared that America is done paying the bills to rebuild the country. "The Iraqi government needs to build up its capability to do its own capital budget investment," said Daniel Speckhard, director of the Iraq Reconstruction Management Office.

The government has slipped a noose around the $21 billion program that, according to the article, was supposed to "fix or build schools, roads, clinics, ports, bridges, government offices, phone networks, power plants and water systems."

I guess that means we're done, right?  Time to pack up and come home because the job is done.  So why is the Pentagon ramping up construction of permanent bases in Iraq?

Los Angeles Times, same day:

Even as military planners look to withdraw significant numbers of American troops from Iraq in the coming year, the Bush administration continues to request hundreds of millions of dollars for large bases there, raising concerns over whether they are intended as permanent sites for U.S. forces.

Questions on Capitol Hill about the future of the bases have been prompted by the new emergency spending bill for military operations in Iraq and Afghanistan, which overwhelmingly passed the House of Representatives last week with $67.6 billion in funding for the war effort, including the base money.

Although the House approved the measure, lawmakers are demanding that the Pentagon explain its plans for the bases, and they unanimously passed a provision blocking the use of funds for base agreements with the Iraqi government.

"It's the kind of thing that incites terrorism," Rep. Ron Paul (R-Texas) said of long-term or permanent U.S. bases in countries such as Iraq.

I can see Bush's signing statement now: "The President shall construe the provisions of the spending bill requiring information disclosure in a manner consistent with his constitutional authority to rule the globe"

Bill Arkin calls for members of the 902nd Military Intelligence Group to step forward with information on these ongoing operations:

I believe your unit is spying on anti-war, anti-military and environmental organizations under the guise of "force protection."

Ever since Pentagon domestic spying was revealed by yours truly in December, the Defense Department has aggressively tried to assure Congress and the American public that it is not another agency breaking the law. [...]

The Pentagon "suspicious activity" database I revealed in December contained entries of anti-war and anti-military demonstrations, certainly suggesting that the military was conducting surveillance.

To understand what kind of surveillance though, one has to abandon the Nixonian model of surveillance for the purpose of harassing government opponents or selecting individuals to spy on because of their political affiliations. [...]

But in this world of Pentagon "force protection," CIFA and 902nd analysts (and their contractor proxies) are mostly engaged in culling through intelligence and law enforcement reports and databases looking for "dots". As part of this work, they surf the web looking for upcoming protests, they follow threads of conversations on newsgroups, join listservs to receive announcements, even join organizations under false pretenses to attend meetings and receive materials.

The objective is to look for patterns or tip-offs that might be the next big one. And if not the next big one, maybe just an anti-war protest at the gate of the local National Guard armory.

The Pentagon's own force protection documents associated with the suspicious activity database reveal that CIFA and 902nd MI Group analysts are looking at whether the same license plates show up at different protests or meetings or whether the same individuals appear at different venues. [,,,]

"Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions." - Daniel Webster