I’ve been meaning to write this post for a little while but net issues have been keeping me away. In any event, the recent passage of the so-called “FISA reform” (now with telecom immunity!) has sent the Health of the Republic tumbling downward. I had begun to be cautiously optimistic that American liberty might begin to recover now that we are approaching the end of the Worst Administration Ever.

But Senator Obama and the Senate Democrats blew this call. Somehow they believe there is a huge constituency for enhanced domestic spying, for rewarding lawbreakers, and for undermining the Constitution. I understand the political calculus, I think, but I’m pretty sure it’s flat-out wrong and it’s disturbing to see the “change” candidate get stuck in worn-out thinking. Usually, Sen. Obama treats Americans as smart and engaged. He is never better than when an issues is nuanced and charged. This time, he just surrendered to the “We must sacrifice liberty to survive the Evil Terrorists” meme.

I’m still going to vote for him and I’ll probably even continue to donate money. After all, the only hope of addressing the ills of this bill lie with a Democratic President and Congress — you can be sure McCain won’t do anything to rein it in. But something has gone out of my enthusiasm. The public finance thing and the slow withdrawal thing didn’t really faze me. But this was important.

It was a chance to lead, and he blew it — and we don’t have all that many chances left.

Long before this blog, I kept an equally-erratic literary journal called A Voice in the Wilderness. And while nothing written there was particularly world-shattering, I don’t want it to get lost in the mists of cyberspace. So to do my part to save the planet, I’m going to recycle and reuse that content, putting the save-worthy stuff here on Mongrel Dogs. Today we start with a piece written in reaction to an op-ed in the Washington Post written by one Victoria Toensing, on 2002 September 23, about the then-nascent Bush policy of secret detention and arbitrary arrest. Sadly it’s five years later and we are five years deeper into the pit, the cause of liberty even more undermined by its alleged defenders.

The piece is reproduced below the fold.

It is hard to imagine any more ways in which Victoria Toensing (“A National Need for Preventive Justice”, 2002 Sep 23) could completely misunderstand American priorities, American justice, or American liberty. The proper response to an act of barbarism is not more barbarism. It is a re-dedication to the cause of freedom — to the Constitutional guarantees that make the United States of America the most free and open society in the history of the planet.

I would feel more assured that her proposed “prism for dealing with the issues of detainees and the collection of evidence would not abandon our constitutional precepts” if she did not then go on to spell exactly how, in fact, it does jettison those precepts. Due process? Presumption of innocence? Separation of powers? Judicial review? Although these terms have long been identified with American liberty, Ms. Toensing sees fit to cast them on the dustbin of history.

And please do not repeat the tired — and wrong! — assertion that World War II justifies the secret tribunals, indefinite uncharged detentions, and highhanded assumption of unbridled exectuive power. In case Ms. Toensing has missed it, there is a crucial difference between 1942 and 2002: Today, Congress has not seen fit to grant — nor the President to even seek! — a declaration of war. The elected leaders of this great democracy have not said, in the voice of the people, that we are at war. Therefore, no “wartime emergency” measures are legal or justified. The President has had twelve months to make his case and to ask for a writ of war. He has not troubled to do this, making the overheated calls for rampaging executive authority ring somewhat hollow.

I mention only in passing that almost every one of the decisions so happily offered as precedent now, has been long considered a travesty of American justice, that every act of judicial deference has been long considered a regrettable mistake, and that every executive trampling of individual liberties has been long regarded as a Constitutional debacle.

Ms. Toensing finds it “bizarre” that the government was required to disclose its charges and evidence to the counsel to John Walker Lindh. What she finds bizarre, true lovers of liberty will find heartening: The Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and all the attendant legal structure, exist to protect the individual from the unrestrained fury of the State. Not merely as a citizen but as a human being, Mr. Lindh was entitled to those full protections and was afforded all of them. Amazingly, the walls of civilization somehow did not come tumbling down — because America is strong enough to offer those protections even to those who wish to destroy us — and America is strong enough to triumph nonetheless.

In the case of Messr. Hamdi and Padilla, it is so comforting to know that “they are being held as prisoners of war until the end of the conflict, as has been done ever since rules of war were written.” Apparently, in this example, since the rules of war happen to be convenient, they are to be sacrosanct. But when the rules of war do not favor the administration view — such as when the Geneva Convention demands full and impartial hearings into the status of prisoners of war — then suddenly we are in a “new age” when the old rules do not apply. By the way, Ms. Toensing is somewhat untruthful. Messrs. Padilla and Hamdi are not being held as “prisoners of war”. The President’s men claim only that the two are “unlawful combatants” — a designation with no recognized meaning and thus, ironically, itself unlawful. “Prisoners of war” have rights as guaranteed by the Geneva Convention and other treaties. “Unlawful combatants” apparently remain or go free at the whim of the President.

Several times Ms. Toensing asserts that prisoners should be detained “until the end of the conflict”. Yet we are engaged in a drawn-out conflict, the very embodiment of a “long twilight struggle”. When, exactly, will the war end? How are we to know? Had President Bush deigned to obtain a writ of war, our objectives and victory conditions would be clear. But instead we are offered war without end, an ill-defined and unceasing conflict worthy of Orwell’s 1984. Normalcy will never return because this so-called “war”, unencumbered by anything so quaint as a Congressional writ, has no discernible endpoint. Terrorism is not a war to be fought. It is a disease to be contained, a virus on the body politic. It will remain for as long as regions exist in which it can incubate.

Ms. Toensing askes, “Why would we want to reveal any information about who is in custody or the basis for their detention when it could expose sources and methods?” The answer is simple: Because democracy and the fundamental liberty of Americans absolutely require an open and communicative government. If the people are to remain the government’s masters, must they not know what the government does in their name? Ms. Toensing also worries that opening deportation hearings aids the enemy, for example by “giving them pieces to complete an intelligence mosaic by which they can learn, for example, which detainee is cooperating or which cell has lost members and needs replacements”. If Al Qaeda needs to read the court docket to know which of its cells has gone missing, then this “terrorist network” poses no more threat than the keystone cops. The only ones who lose in an atmosphere of absolute, unchallenged secrecy is the American people.

Ms. Toensing bravely decries her own ability to judge terrorist trials. (By the way, the government can still close a deportation hearing — it need only show cause to the judge.) Why? Because, “Quite simply, I do not have access to the relevant investigative and classified information. Neither will the advocates of public disclosure. Nor will the press.” That is to say, the sovereign people of the United States of America cannot be trusted with the power to decide for themselves the propriety and validity of their government’s actions. If we remove the public entirely and without appeal from this, the most basic of actions, then what role is available? Or should we simply let our “betters” rule, perhaps in perpetuity?

Through her tone and her words, Ms. Toensing betrays the ultimate problem that any freedom-loving citizen has with the actions she defends: She and her ilk simply do not believe in democracy. They do not have any faith in the country they claim to defend and to cherish. They do not believe in the fundamental solidity and awe-inspiring strength of the American republic. They — more than the barbarians who felled the Towers — have wrought unneeded, unprecedented, and unwarranted changes in the political fabric of our nation. They — more than al Qaeda, more than Iraq — threaten the freedom of American citizens.

Ms. Toensing gets one thing right: “What is important for all these cases is that the courts are functioning.” They are indeed — and happily they have so far issued rebuke after sharp rebuke to the groping grasping grip of the executive. Thank Providence that the courts are open and functioning — for they alone are protecting the American people and American democracy itself against this President who purportedly swore to uphold the Constitution and now cynically strives to topple it.

We are stronger than this. We are smarter than this. We are better than this.

With respect,
-=-Bernard HP Gilroy

In reading this AP News story on the upcoming speech by the President, I came across the following:

Bush and his senior advisers are likely to hear the initial thinking from Ryan Crocker, Bush’s envoy in Baghdad
[emphasis added]

Isn’t Ryan Crocker the accredited ambassador to Iraq? Confirmed and empowered, one would hope, by the United States Senate? He’s not some office flunky that Bush sent over to Iraq for a look-see. He’s the full-time diplomatic representative (to an allegedly sovereign nation) of the United States of America, not of George W. Bush. Talk about your imperial presidencies! It’s about as bad as when Bush himself said, of Rumsfeld,

Good. He’s done a heck of a job. He’s conducted two wars, and at the same time is out to transfer my military from a military that was constructed for the post-Cold War to one that is going to be constructed to fight terrorism.

Ominous phrases, both.

With exactly 18 months left to go in office, this President has made a sweeping and unprecedented play for unchecked power. According to a Washington Post article, the President intends to claim that Congress cannot pursue its investigation into the political firing of 9 US Attorneys, because the President has exerted a broad “executive privilege” that (he claims) exempts his former underlings from testifying. By statute, enforcement of a contempt-of-Congress citation is handled through the Department of Justice, which must convene a grand jury on the matter. According to the Bush faction, because the Justice Department is a part of the executive branch and because Bus claims that the executive branch is “unitary” (an untried and abominable constitutional theory), the DoJ cannot take action that doesn’t conform to the “will” of the President.

Let that sink in there. Our government is now to be determined by the “emanations of the will of the President” — not by, say, the laws on the books (which clearly mandate that the DoJ pursue any contempt-of-Congress charge sent to it). One scholar called the attempted power grab “almost Nixonian in its scope and breadth of interpreting its power”. It’s time to stop pussy-footing around. This makes Nixon look like a little child. Even Nixon recognized that there were some checks on Presidential power; the Bush White House feels there are none.

More below the fold.

Is this really so important? In a word, yes. Bush has basically given himself the ultimate Get Out of Jail Free card: He can claim privilege for anything whatsoever — without any outside determination, in the Congress or the Court, as to whether that claim is valid — and having done so, he can place that material forever beyond investigation. It is, in essence, the documentary equivalent of Gitmo: He is creating ab initio a legal wasteland where he can squirrel away documents and testimony that implicates or even just inconveniences him. This is, in fact, a declaration of absolute, unchecked power — the tyrannical power of a mad king.

If Congress does not act to slap down this nonsense — if this is allowed to stand and fester — then it really will be the death knell of the Republic. In future years, when historians pore over the dusty records of the vanished American polity and wonder when the Republic fell into despotism, here is where they will draw the line. This could well be our Rubicon. Remember this: the Roman Republic didn’t fall because an outsider conquered it. It didn’t fall even because Julius Caesar marched on the Capitol. It fell because the people in it were too weary, too selfish, too weak to defend it. They allowed affronts against it to stand, and they paid the price.

Will we do any better?

The Health of the Republic bar has dropped another 4% in recent weeks. This is largely due to the unfolding three scandals at the Department of Justice:

• The blatantly-political firing of eight US prosecutors
• The new revelations about presidential interference in the internal DOJ audit of the warrantless wiretapping program
• The rampant abuse of National Security Letters by FBI agents

More below the fold.

Prosecutor Sack

As the right-wing noise machine is quick to point out, prosecutors serve at the pleasure of the President; are political appointees; and can be removed at any time. What the noise machine leaves out is that customarily US prosecutors are considered independent; that this independence is crucial to their functioning; and that the rule of law depends on respect and trust that the State is executing the laws neutrally and not for a political gain. Moreover, getting lost in the echo chamber is the vital fact that some, if not most, were fired because they were unwilling to brook interference in election fraud cases. Considering that this Administration squeaked into office on interpretations of election law that are — charitably — stretched, one would think they would not want to throw around charges of fraud. But then the arrogance of this Administration has been rarely matched in American history.

Warrantless Wiretapping Investigation Block

This story isn’t exactly new, but over the summer, the President personally intervened to deny clearances for the investigators in the Office of Professional Responsibility to look into the details of the warrantless wiretapping scheme to see if DOJ operatives broke the law in participating. By denying the clearances, the President effectively shut down the investigation — and he was apprised of that by the attorney-general, among others. At the time, the right wing noise machine clamored that this was routine and that allowing access would have undermined national security interests. Yet at the very same time that the OPR was being walled off from the information need to evaluate whether the DOJ was breaking the law, the President saw fit to hand out dozens of clearances to the same information — including to other DOJ investigators (those pursuing the leak of the program’s existence) and to outright non-governmental civilians (the President’s much-ballyhooed Prvacy Board). Somehow, these didn’t compromise national security.

FBI and the NSLs

This has the potential to drag the bar much lower. The FBI is authorized to obtain some information from, say, telecom companies in pursuit of a national security investigation and pursuant to warrants being sought. These so-called “national security letters” allow the agents to act quickly and attend to the legal details afterward, preventing suspects from slipping away while paperwork is done. The potential for abuse is staggering, and so the use of NSLs has been ringed with many safeguards. The revised Patriot Act cut away several of the important ones but left at least a few intact. A recent report by the DOJ inspector-general, however, has made clear that the FBI willfully and knowingly bypassed even those weakened safeguards and used the NSLs in a manner clearly and obnoxiously not legal. The telecoms, by the way, deserve much derision because they went along meekly rather than seek to protect the data of their customers. The number of improper accesses reaches into the thousands, perhaps tens of thousands. The FBI, the federal agency most charged with upholding the rule of law, has shown its utter comtempt for that concept. We are forced to wonder: In this so-called War on Terror — invoked as an existential struggle for the very future of civilization — what exactly are we fighting to save, if not the principles of law that have made us a free nation?

Magnitude

The drop is a relatively modest 4% because these scandals emerged and have shown surprising traction due to the correct and careful use of the subpeona power by the newly-invigorated Democratic Congress. It’s possible, just possible, that the rule of law is beginning to recover.

The Health of the Republic bar has shifted downward another percentage point. This follows the promulgation of a presidential decree that gives the White House a greater say over the issuance of policy guidelines by agencies. Previously most such documents were crafted by civil servants but now, they must pass through a politically-appointed gatekeeper (a so-called regulatory policy office) before they can be issued. The clear intent is for Bush to “regain control” over rogue agencies such as the Environmental Protection Agency, which for some reason seems determined to ignore presidential philosophy and, you know, do its legally-mandated job.

Not surprisingly, the new policy — demanding an aggregate estimate of costs and the determination of a “market failure” before any new regulation is promoted — was hailed by financial backers of the Bush administration, primarily businesses who find it irksome that regulatory agencies actually regulate.

This is only a 1% drop because — believe it or not — this administration has done such other egregious damage to American freedoms, that this Kremlinesque gathering-in of economic control, in comparison, ranks as a relatively minor matter. How we lived in diminished times!