Category Archives: The Constitution

Will Congress Cave?

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There was a blogger conference call today with Sen. Harry Reid, who (remarkably) didn’t read us a prepared statement but simply took our questions. Bob Geiger blogs about it here. See also Chicago Dyke at Corrente.

In the course of the call, I brought up the apparent buildup to war in Iran, and let him know that y’all (including me) are worried to death that the Senate is going to cave in to Bush’s warmongering. Actually, I think I said “wimp out.” Or something like that. He assured me the Senate would stand up to the White House on this matter, as well as taking on a stronger oversight role in Iraq.

In the Washington Post today, Fred Barbash has quite a good column asking a good question — Why Would Congress Surrender?

At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the “battlefield” over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.

In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words. …

… Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it’s as good as law.

This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch. …

… Article II does indeed make the president commander in chief.

But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to “declare war,” to “make rules concerning captures on land and water,” to “provide for the common defense,” to “raise and support Armies,” and to “make rules for the government and regulation of the land and naval forces.” In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.

War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to “make war.”

The delegates changed the wording to “declare war,” not to remove Congress from the process but to leave the commander in chief the “power to repel sudden attacks,” as James Madison put it. “The executive should be able to repel and not to commence war,” agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because “no executive would ever make war but when the nation will support it,” said delegate Pierce Butler.

As I wrote here, there is no way in hell the authors of the Constitution intended to give the President the kind of war powers Bush has assumed. But the parameters of the presidential war powers have been pushed outward for a long time. Until now the chief executives have been reasonably responsible, if only because they were mindful of public opinion. But now we’ve got a Creature in the Oval Office with no sense of responsibility at all, but with some kind of unresolved adolescent resentment against authority other than his own.

For more than two centuries we’ve respected the Constitution as the Law of the Land. Certainly there have been many disagreements about what this or that clause means, or how to interpret a 17th century document in the light of 21st century reality. Even presidents have taken actions that were found to be unconstitutional later on. But I can’t think of another time in our history in which we were threatened by an executive branch that just plain wanted to blow the Constitution off and rule any way they damn well pleased.

This is a precedent Congress must not allow to stand. They must not just try to keep the Creature in check for the next two years until his term expires. Congress’s authorities must be made clear.

Dweebs in Space

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WSJ Opinion Journal:

To understand why the Founders put war powers in the hands of the Presidency, look no further than the current spectacle in Congress on Iraq. What we are witnessing is a Federalist Papers illustration of criticism and micromanagement without responsibility.

The Founders gave war powers to Congress, dweeb. Article I, Section 8, paragraphs 11-14; see Findlaw. And if you want a Federalist Paper, try #69, by Alexander Hamilton. Hamilton made it clear that the President, as Commander-in-Chief, was to have much less war power than that of a British king. The declaring of war and the raising and regulating of armies and navies are powers given to Congress.

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

The dweeb at WSJ continues. He both upbraids the Senate Foreign Relations Committee for the non-binding resolution it passed yesterday and taunts Congress that if it really believed the Iraq War is so bad it should do something more drastic, like cut off funds.

By passing “non-binding resolutions,” they can assail Mr. Bush and put all of the burden of success or failure on his shoulders.

I ‘spect that was the idea. It’s Bush’s War, dweeb. I’m hoping that if Congress can pass one non-binding resolution it will go on to something bolder.

Minority Leader John Boehner is even asking Speaker Nancy Pelosi to create another special Congressional committee to look over the general’s shoulder. It’s a shame Ulysses S. Grant isn’t around to tell them where to put their special committee.

I believe the point of the committees is to look over Bush’s shoulders, not the generals’, and I ‘spect General Grant would have been OK with that. Right now I don’t have time to look up what precedents there might have been during the Civil War and what Grant thought about them.

Anyway, the dweeb continues,

In addition to being feckless, all of this is unconstitutional. As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.

But Bush obtained that resolution on false pretenses, which as far as I’m concerned renders it null and void. The Iraq War we got was the result of a bait-and-switch. And while the President has the authority to manage the war effort, he does so with a military raised and managed by authority of Congress, and he goes to war only by the authority of Congress. To claim that a President can trick Congress into one war resolution and then treat that resolution as a carte blanch to make war as he pleases for the rest of his administration is stretching things a tad.

Update: Glenn Greenwald has more.

The Purge

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Following up yesterday’s post on replacing U.S. attorneys — Paul Krugman writes in today’s New York Times,

There’s something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors. …

… Since the middle of last month, the Bush administration has pushed out at least four U.S. attorneys, and possibly as many as seven, without explanation. The list includes Carol Lam, the U.S. attorney for San Diego, who successfully prosecuted Duke Cunningham, a Republican congressman, on major corruption charges. The top F.B.I. official in San Diego told The San Diego Union-Tribune that Ms. Lam’s dismissal would undermine multiple continuing investigations.

In Senate testimony yesterday, Attorney General Alberto Gonzales refused to say how many other attorneys have been asked to resign, calling it a “personnel matter.”

As I wrote yesterday, U.S. attorneys usually are appointed at the beginning of a president’s term and serve for that term. it is not normal to replace U.S. attorneys in the middle of a term except in cases of gross misconduct. I don’t know if the current rash of mid-term firings is unprecedented, but if there is a precedent I haven’t found it.

For a long time the administration nonetheless seemed untouchable, protected both by Republican control of Congress and by its ability to justify anything and everything as necessary for the war on terror. Now, however, the investigations are closing in on the Oval Office. The latest news is that J. Steven Griles, the former deputy secretary of the Interior Department and the poster child for the administration’s systematic policy of putting foxes in charge of henhouses, is finally facing possible indictment.

And the purge of U.S. attorneys looks like a pre-emptive strike against the gathering forces of justice.

As I wrote yesterday, it isn’t necessarily scandalous for a U.S. attorney to be forced to resign. Incoming administrations often ask all or most of their predecessors’ U.S. attorneys to resign. But mid-term firings for no clear reason do look suspicious. And the Bush Administration, through the Patriot Act, has found a way to circumvent the constitutional requirement that U.S. attorneys be confirmed by the Senate. President Bush can appoint “interim” attorneys with no limit on how long the “interim” period will be. So if he doesn’t get around to sending the nominations to the Senate in the next couple of years — well, he’s busy. Got brush to cut, you know.

If someone finds the Krugman column republished outside the firewall, please add the link to the comments.

In other news about the Bush Administration’s contempt for the rule of law and civil liberties — see this New York Times editorial.

It is hard to render a convincing apology when you are not really apologizing. Consider Charles Stimson, the deputy assistant secretary of state for detainee affairs, who has been trying to spin his way out of his loathsome attempt to punish lawyers who represent inmates of the Guantánamo Bay internment camp.

Last week, Mr. Stimson expressed his “shock” that major American law firms would represent terrorism suspects, hinted that they were paid by unsavory characters and suggested that companies should reconsider doing business with them. On Wednesday, Mr. Stimson said he apologized and regretted that his comments “left the impression” that he was attacking the integrity of those lawyers.

It was not just an impression. It was exactly what he did. Mr. Stimson actually read out a list of law firms during an interview with a radio station friendly to the Bush administration.

On top of that, Alberto Gonzales is blaming lawyers for the delays — some as long as five years — in bringing detainees to trial. The editorial continues,

There’s no truth to that. The cause of the delay in bringing any Guantánamo detainee to trial is Mr. Bush himself. He refused to hold trials at first, then refused to work with Congress on the issue and claimed the power to devise his own slanted court system. Mr. Bush went to Congress only when the Supreme Court struck those courts down. The result was a bill establishing military tribunals for detainees that is a mockery of American justice.

U.S. Attorneys: It’s the Replacing, Stupid

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By itself, forcing the resignations of at least seven U.S. attorneys is not necessarily scandalous. Presidents may fire U.S. attorneys, and they do so routinely at the beginning of a new administration.

It is unusual to fire U.S. attorneys in mid-term except in cases of gross misconduct, which doesn’t appear to be the case for the forced resignations under discussion. I don’t yet know how often that’s been done. But the larger issue here is not so much the firing (although the firing is an issue) as it is the replacing. The Bush White House appears to have found another way to gut the Constitution and usurp powers that belong to another branch of government.

Since the office of United States Attorney was created by the Judiciary Act of 1789, U.S. attorneys have been subject to Senate confirmation, per the DOJ’s own web site and Article II, Section 2, paragraph 2 of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The White House didn’t directly nullify the “advice and consent” clause. Instead, through a provision in the Patriot Act reauthorization that went into effect last year, the Attorney General can appoint “interim” replacements who can serve indefinitely without confirmation. Mark Agrast of the Center for American Progress explains:

The administration has managed to bypass the confirmation process by taking advantage of an obscure provision slipped into last year’s PATRIOT Act amendments. Until then, the U.S. Attorney General was permitted to appoint an interim U.S. Attorney for a maximum of 120 days, after which time the vacancy would be filled by the federal district court until a successor could be confirmed. The new provision removes the 120-day expiration date, allowing the Attorney General to appoint interim U.S. Attorneys on an essentially permanent basis, without Senate confirmation.

Precisely why the seven attorneys were forced out of office remains unclear. The most controversial “replacement” so far is J. Timothy Griffin, a former aide to Karl Rove, who will become the new U. S. attorney for the Eastern District of Arkansas. Griffin is replacing Bud Cummins, who was appointed by President Bush in 2001. Per Paul Kiel of TPM Muckracker,

Former Arkansas USA Bud Cummins told the Wall Street Journal that “a top Justice official asked for his resignation in June, saying the White House wanted to give another person the opportunity to serve.” Cummins was finally forced out in December, replaced with Timothy Griffin, formerly the research director of the Republican National Committee.

“Wanted to give another person the opportunity to serve”? What the hell kind of reason is that?

The New York Times:

The Bush administration has appointed an extreme political partisan as the new United States attorney for Arkansas. Normally, the Senate would have vetted him, and quite possibly blocked his appointment. But the White House took advantage of a little-noticed provision of the Patriot Act, which allows it to do an end run around the Senate.

Certainly, the firings look fishy. One of the attorneys was the “Duke” Cunningham prosecutor . Another (allegedly being sacked because of his “management style“) had been engaging in high-profile investigations into companies and executives fraudulently backdating stock-option grants. But in some cases no clear and obvious reason for the “firings” jumps out of news stories.

You can read Sen. Dianne Feinstein’s objections to the “replacings,” here.

It’s the Replacing, Stupid

I want to be sure we’re all clear about this issue, because the Right wants you to think the issue is mostly about the firing, not the replacing.

For example, NRO columnist Andrew McCarthy (in his artfully disingenuous way) justified the new “procedure” by explaining, “One of President Clinton’s very first official acts upon taking office in 1993 was to fire every United States attorney then serving,” except for Michael Chertoff.

It was just politics, plain and simple.

Patronage is the chief spoil of electoral war. For a dozen years, Republicans had been in control of the White House, and, therefore of the appointment of all U.S. attorneys. President Clinton, as was his right, wanted his party’s own people in. So he got rid of the Republican appointees and replaced them with, predominantly, Democrat appointees (or Republicans and Independents who were acceptable to Democrats).

I dug an article about this episode out of the New York Times archives. On March 24, 1993, Attorney General Janet Reno demanded the resignation of all United States Attorneys. At the time, this prompted accusations from the Right that the Clinton Administration was trying to save the political career of Rep. Dan Rostenkowski. (If that was the plan, it didn’t work.)

In any event, as I recall righties banged their pots and howled something fierce about these firings as part of their campaign to destroy Bill Clinton, even though it was a standard practice for an incoming president to replace U.S. attorneys.

Back in 1993, David Johnston of the Times wrote,

All 93 United States Attorneys knew they would be asked to step down, since all are Republican holdovers, and 16 have resigned so far. But the process generally takes much longer and had usually been carried out without the involvement of the Attorney General.

Battles of the Past

Ms. Reno is under pressure to assert her control over appointments at the Justice Department. She was Mr. Clinton’s third choice for Attorney General and arrived after most of the department’s senior positions were already filled by the White House.

The comments of Ms. Reno and Mr. Stephens evoked the pitched battles of the past, when independent United States Attorneys resisted removal by new administrations.

In 1969, for instance Robert Morgenthau, now the Manhattan District Attorney, resisted efforts by the Nixon Administration to replace him as United States Attorney in New York until he was given what he called an “ultimatum” by President Richard M. Nixon to leave office.

In 1978, Attorney General Griffin B. Bell removed David W. Marston as United States Attorney in Philadelphia, provoking charges, never proved, that a lawmaker under scrutiny by Mr. Marston’s office had urged President Jimmy Carter to remove the prosecutor.

Four-Year Terms

United States Attorneys are appointed to serve four-year terms at the pleasure of the President. It was unclear whether Ms. Reno initiated the request for resignations or whether it was pressed on her by the White House. The Attorney General said it was a “joint decision.”

Likewise, in 2001 the Bush Administration replaced Democratic prosecutors with Republican prosecutors. This was expected. And it’s entirely beside the point.

About halfway through his NRO column, McCarthy admits that the Patriot Act did change the procedure for appointments. But McCarthy called the old process “a bizarre arrangement.”

Previously, under the federal code (Title 28, Section 546), if the position of district U.S. attorney became vacant, it could be filled for up to 120 days by an interim appointee selected by the attorney general. What would happen at the end of that 120-day period, if a new appointee (who would likely also be the interim appointee) had not yet been appointed by the president and confirmed by the senate? The old law said the power to appoint an interim U.S. attorney would then shift to the federal district court, whose appointee would serve until the president finally got his own nominee confirmed.

And what was wrong with that?

Law enforcement is exclusively an executive branch power. The Constitution gives the judiciary no role in executive appointments, and the congressional input is limited to senate confirmation. U.S. attorneys are important members of the Justice Department — the top federal law enforcement officers in their districts. But while the attorney general runs the Justice Department, U.S. attorneys work not for the AG but for the president. They are delegated to exercise executive authority the Constitution reposes only in the president, and can thus be terminated at will by the president. Consequently, having the courts make interim appointments made no practical sense, in addition to being constitutionally dubious.

Basically, McCarthy is arguing that the Senate’s “advice and consent” role is purely ceremonial — to rubber stamp the appointments of the President. Under the previous system, if the appointment proved to be controversial and was hung up in the Senate, the President could either withdraw the nominee and appoint somebody else, or the courts would appoint an interim attorney to serve while the President and the Senate haggled. And this, to McCarthy, is unacceptable.

So yes, a president who wanted to bypass the Constitution’s appointments process could fire the U.S. attorney, have the attorney general name an interim appointee, and simply refrain from submitting a nominee to the senate for confirmation. But we’ve also seen plenty of abuse from the Senate side of appointments — and such abuse was not unknown under the old law. Though the president can nominate very able U.S. attorney candidates — just as this president has also nominated very able judicial candidates — those appointments are often stalled in the confirmation process by the senate’s refusal to act, its imperious blue-slip privileges (basically, a veto for senators from the home state of the nominee), and its filibusters.

How dare those Senators question the decisions of the Lord High Decider!

McCarthy finally falls back on the most fundamental principle of conservative ethics — Billy did it first!

It’s worth noting, however, that the same Democrats who will be up in arms now were mum in the 1990s. President Clinton not only fired U.S. attorneys sweepingly and without cause.

Which, as I explained above, is a red herring.

He also appointed high executive-branch officials, such as Justice Department civil-rights division chief Bill Lann Lee, on an “acting” basis even though their positions called for senate confirmation. This sharp maneuver enabled those officials to serve even though it had become clear that they would never be confirmed.

Reporting on Lee on February 26, 1998, the New York Times noted: “Under a Federal law known as the Vacancy Act, a person may serve in an acting capacity for 120 days. But the [Clinton] Administration has argued that another Federal law supersedes the Vacancy Act and gives the Attorney General the power to make temporary law enforcement assignments of any duration.”

To be clear, Lee’s appointment was as Assistant Attorney General for Civil Rights, not as U.S. attorney, and I assume a different part of the federal code applied. The situations are similar in principle, of course. Here is the New York Times article McCarthy cites, and here is a New York Times editorial about the Republicans’ war against Bill Lann Lee.

This story is long and complicated, but in a nutshell, Orrin Hatch, as chairman of the Senate Judiciary Committee, sat on Lee’s nomination. Literally. He scheduled no committee hearings; he just ignored the nomination. The Republicans found Lee’s nomination unacceptable because he had a long record of supporting civil rights and equal opportunity and other scary socialist stuff. Clinton kept him in the job through recess appointments, in the same way John Bolton became a UN ambassador.

McCarthy screams about hypocrisy; where was he when Orrin Hatch sat on Bill Lann Lee’s nomination? Was he wringing his hands because the presidents’ nominee wasn’t allowed an up-or-down vote in the Senate? Somehow, I doubt it.

For the record, I don’t like recess appointments, either, except in case of genuine emergency. But aren’t you just damn tired of Republicans who want the Dems to abide by a stricter set of rules than they accept for themselves? And isn’t there some way we can amend the Constitution so that Washington politicians act like grown ups?

Bushies Know Best

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You’ll like this one. Suzanne Goldenberg writes for the Guardian:

The Bush administration’s most senior legal official said today that US courts were not fit to make decisions on national security and should show deference to the White House.

I should have warned you at the top of the post to sit down and stay calm.

In remarks made after a talk at the American Enterprise Institute, a conservative thinktank, the attorney-general, Alberto Gonzales, said: “I don’t think that a judge is equipped at all to make decisions about what is in the national security interest of our country.”

Mr Gonzales’s comments come a few days after a Pentagon official provoked a national backlash after suggesting large corporations boycott law firms that defend detainees at Guantánamo.

You, there! You banging your head against the wall! Stop that right now!

The Associated Press reports (emphasis added),

Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who “apply an activist philosophy that stretches the law to suit policy preferences.”

‘Scuse me while I go bang my head against the wall. At least I didn’t throw up, like some people.

Big Tent Democrat explains,

I think the Attorney General could not be clearer. He advocates the vitiation of the Constitution by the judiciary when the President so desires. He is unfit for the office of Attorney General. He should be removed from office.

On the other hand, AG Gonzales has decided the National Security Agency’s domestic surveillance program will be subject to FISA approval, after all. (Glenn Greenwald is, as ever, the go-to guy for in-depth explanation of FISA.)

I understand Mr. Gonzales is scheduled to testify before the Senate Judiciary Committee tomorrow.

Speaking of atrocities, my buddy the Talking Dog (who is not an atrocity; more of a shepherd-newfoundland mix, I think) interviews H. Candace Gorman, one of the attorneys Alberto Gonzales thinks should be boycotted because she represents detainees at Guantánamo. Good stuff.

Prelude to the Speech

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I guess I’ll watch the speech so you don’t have to.

I’m hearing noises from the cable news bobbleheads that Republican support for the escalation is weak and crumbling. I can’t tell from current news stories how widespread the Republican insurgency might be. If a substantial number of congressional Republicans fall away, and vote no even on a non-binding resolution, this could pave the way for bigger and better things in the future — like a binding vote to de-fund the war. And how’s about impeachment?

Jonathan Turley on Countdown — The president can only spend funds that are given to him by Congress, he says. Go back to the Mexican War to see conditions put on funds. Congress prevented the U.S. to go into Angola and to get out of Somalia. The framers of the Constitution deliberately divided the war powers between Congress and the President. They wanted these two branches to negotiate and cooperate on decisions to go to war.

Non-binding resolutions are the same thing as doing nothing at all Turley says. But Congress can stipulate that no money in an Iraq appropriation bill might be used in a surge. If Dubya tries a signing statement countermanding the clear will of Congress on an appropriations bill, it would be nothing short of theft.

At the Washington Post, Dan Froomkin says the escalation is a change of tactic, not strategy.

Peter W Galbraith explains why the surge won’t work.

Manisfesto

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I started out to write a letter to the editor, and (you know me!) went on way too long. But here’s a first draft, submitted for your correction and comments. I’ll do a podcast version and maybe tidy it up and whittle it down for the newspaper letter editors later this afternoon.

As I write this, Congress is debating the President’s proposed troop escalation. And pundits are debating whether attempting to stop escalation is politically smart. But there are larger issues here than politics or even the war itself. The debate over escalation in Iraq is also a debate over the integrity of our Constitution and the system of government that has sustained this nation for 218 years.

Even a sloppy reading of American history should tell us that the Founding Fathers never intended one man, even one with a title so lofty as Commander-in-Chief, to have the power to deploy the military any way he wants for as long as he wants at his own discretion.

History had provided many examples of one man with control of an army seizing dictatorial powers. For this reason, the authors of the Constitution divided authority over war and the military between Congress and the President. Consider that an early draft of Section 8 gave Congress the authority “to make war,” not just to declare war. The change was made to allow the President some leeway to act quickly without congressional debate when enemy troops are landing on our shores. It was not intended to strip Congress of all but a ceremonial role in approving the President’s war plans.

Most of the authors of the Constitution were loathe even to maintain a standing army. For that reason, the Founding Fathers decided to keep only a minimal federal force and primarily rely on state militias for the nation’s defense (Article I, Section 8, clauses 15 and 16). The militias were to be under the command of the several state governors until called into federal service (with a governor’s permission) by Congress and the President, which further divided control of the military between the state and federal governments.

The original militia system proved inadequate for the nation’s defense, and in the 20th century the state militias became today’s National Guard. But the National Guard was never intended to be the President’s personal plaything, and the citizen soldiers of the Guard cannot – must not — be kept in a foreign war merely at the President’s pleasure.

It was not until the Cold War that the United States chose to maintain a formidable federal military at all times, war or no. Our military might requires more, not less, vigilance that the nation’s war powers not fall into the hands of just one man.

President George W. Bush has embraced a controversial theory called the “unitary executive” to justify his increasingly autocratic powers. In issues from warrantless surveillance to stripping a citizen of the right of habeas corpus at his discretion, President Bush has pushed the powers of the presidency far beyond what any President has assumed before. And this includes wartime presidents such as Abraham Lincoln and Franklin Roosevelt.

President Bush justifies these powers by evoking the threat of terrorism. I was in lower Manhattan on September 11, and I have seen the worst that terrorism can do with my own eyes. I know that terrorism destroys precious lives, landmarks, and vital infrastructure.

But terrorists cannot destroy the United States. Terrorists cannot occupy our territory and force us to abandon our political institutions to despotism. Only we can do that.

Today many television and newspaper pundits warn our senators and representatives that trying to stop the escalation is politically risky. Why stopping the unpopular acts of an unpopular President should be politically risky isn’t clear to me, but we are told it is. Today the men and women we elected to represent us struggle to find the courage to enact the will of We, the People. Instead, they tiptoe about in fear of the White House and will not use the power the Constitution gives them. The system of checks and balances has withered away, and a single secretive, autocratic man who has shown us little else but bumbling incompetence and moral cowardice for the past six years rules the nation like Caesar. How did we come to this?

I ask our senators and congresspersons to please look beyond their personal ambitions and whatever heat they might take from the President’s apologists. Instead, please think of the nation. Think of the soldiers whose lives are forfeit to President Bush’s stubborn refusal to face reality. And think of preserving the Constitution and the integrity of the separation of powers for generations to come.

Another Rightie Who Can’t Read

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I noticed this trackback to the last post. It proves my point about the general fuzzy-headedness of the “limited government” argument. Even though I specifically (and clearly, I think) wrote that government must be restricted from abusing civil liberties, the blogger wrote,

Does Ms. O’Brien really believe that there shouldn’t be any limits on the will of the people ? If she does, then we’ve got to toss out most of the Constitution and the Bill of Rights, because that’s precisely what they do.

I wonder sometimes if these meatheads cannot grasp that, ultimately, “the government” and “the people” are the same thing. In the U.S. the government is an instrument by which We, the People, govern ourselves. The Constitution provides the basic parameters, structures, and divisions of authority of that government. The Bill of Rights enumerates which things the government does not have the power to do, meaning that no government official or political faction can use government to do those enumerated things.

And I think that’s grand. But libertarians want to deprive people of the ability to use government in ways that don’t have a dadblamed thing to do with civil liberties, and which in fact fall under the aegis of matters for which the Constitution was purposed —

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

If We, the People, want to promote the general Welfare by initiating taxpayer funded universal health care, for example, ain’t nothin’ in the Constitution that says we can’t have it. People opposed to it can argue about why they think universal health care is not a good use of taxpayer dollars, and then the voters can decide which way they want to go. But when such a program is nixied purely on some ideological dogmas about “big government,” that’s essentially an argument against republican government, and against democracy itself. It’s an argument that says people may not govern themselves, and it’s a violation of the principles on which this nation was founded.

The blogger I’m snarking about is the one who wants to “toss out most of the Constitution” and replace it with an antigovernment ideology.

It isn’t the size of government that makes it oppressive. I provided an example from history in the post below — in the very decade (the 1870s) that government was “smallest” and least intrusive into matters of business, markets, securities, etc., it was opening peoples’ mail to be sure they weren’t using the postal system to provide information on birth control.

Some years later federal courts ruled that Comstock Law agents could not interfere with dissemination of birth control information and devices. To many at the time, the courts’ rulings were an example of “big government.” Would the libertarians reduce the power of government to protect the civil liberties of people?

The knee-jerk attitude that government is always bad, and “big” government is worse, is not based on either reason or the Constitution.

The simple fact is that people oppress each other. They do this with or without government. Sometimes powerful political factions do use government as an instrument of oppression, but throughout our history government has also been the tool used by citizens to gain relief from oppression.

I say that reducing the size and power of government does not reduce oppression, because oppression takes place by means other than government. Those laissez-faire businessmen of the 1870s oppressed their workers outrageously, for example. Many of the inhuman outrages that were common then are rare today — because of government. We, the People, decided workers should have some protections. Labor unions were behind much of the political organization that brought about the Department of Labor and legislation protecting workers, but labor unions by themselves weren’t having a whole lot of success at protecting workers before that.

I’m old enough to know that much of the hysteria over “big government” that arose after World War II came about because government acted to protect the rights of African Americans and other oppressed minorities. The racist bigots who jeered at the “Little Rock Nine,” for example, thought that “big government” was oppressing them. The Governor of Arkansas had wanted to use National Guard to keep African Americans out of the public high school. A federal judge issued an injunction against this. When Little Rock police feared they could not protect the Nine from mob violence, President Eisenhower sent 1,000 troops from the 101st Airborne Division to protect the students from the mob. Eisenhower also federalized the Arkansas Guard, taking it away from control of the Governor. (Note that Eisenhower acted after the mayor of Little Rock asked for help.)

For years after that, white bigots complained about those armed troops in the streets of Little Rock and whined about how their “rights” were being infringed by “big government.” They were talking about their “rights” to prevent nine teenagers from going to school because of their skin color. They were talking about their “rights” to form a mob and tear nine young people to pieces because of their skin color.

Libertarians want to protect those “rights.” They want to deprive the federal government of the power to protect the civil liberties of citizens.

I’m not saying that all libertarians are bigots. I’m saying they haven’t thought it all through. They see “big government” and think “oppression,” and that’s that. But whether government is “big” or “little” is not the issue; the issue is whether government functions within the parameters of the Constitution, including the Bill of Rights, or whether it doesn’t. The issue is whether our government remains an instrument for self-government as it was intended, or whether it doesn’t.

Update: I’m closing comments on this post, as we’re starting to get an infestation of commenters who don’t know they should be polite to the hostess.

Why We Vote

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Roxana Tiron of The Hill reports that Senate Dems plan to revise the Military Commissions Act in the next term.

Sen. Chris Dodd introduced a bill today that

… seeks to give habeas corpus protections to military detainees; bar information that was gained through coercion from being used in trials and empower military judges to exclude hearsay evidence they deem to be unreliable.

Dodd’s bill also narrows the definition of “unlawful enemy combatant” to individuals who directly participate in hostilities against the United States who are not lawful combatants. The legislation would also authorize the U.S. Court of Appeals for the armed forces to review decisions made by the military commissions.

In the next term Dodd will be the second ranking Democrat on the International Relations Committee. Sen. Patrick Leahy, the incoming Senate Judiciary Committee chairman, is also drafting changes to the Act that would reinstate habeas corpus. Incoming Senate Majority Whip Dick Durbin and incoming chairman of the Senate Armed Services Committee, Carl Levin, say they plan to look into “extraordinary rendition.”

“I’m not comfortable with the system,” Levin said earlier this week. “I think that there’s been some significant abuses which have not made us more secure, but have made us less secure and have also perhaps cost us some real allies, as well as not producing particularly useful information. So I think the system needs a thorough review, and as the military would say, a thorough scrubbing.”

I’d like to point out that these guys are the Big Guns, so to speak. We don’t have a veto-proof majority, but thanks to the midterms we’re in better shape to put up a fight.

See also: “GTMO Report: Only 10 out of 440 Charged“; “Guantanamo prisoners routinely denied witnesses, evidence“; “Judge: Detainee Can’t Speak to Attorney“; “Presbyterians to witness against torture“; “The Road to Guantanamo.”

Bill of Rights, We Hardly Knew Ye

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If there’s any comfort to be taken from today’s defeat of the “habeas corpus” amendment to the detainee bill it’s that only one Democratic Senator, Ben Nelson of Nebraska, voted with Senate Republicans to defeat the bill. William Branigin of the New York Times reports:

Senators voted 51 to 48 against the amendment, which called for deleting from the bill a provision that rules out habeas corpus petitions for foreigners held in the war on terrorism. The writ of habeas corpus, which is enshrined in the U.S. Constitution, allows people to challenge in court the legality of their detention, essentially meaning that they cannot be held indefinitely without charge or trial.

Regarding the detainee bill itself — 32 out of 44 Senate Democrats voted against the bill. According to Glenn Greenwald, the 12 are Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.).

Of that group I am most disappointed in Frank Lautenberg, who usually is on the side of liberalism.

Glenn Greenwald comments:

But it is still difficult to understand the Democrats’ strategy here. They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they voted against the bill in large numbers, thereby ensuring those exact accusations will be made anyway — and made loudly (the White House already started today). Yet they absented themselves the whole time from the debate (until they magically appeared today), spent the last several weeks only tepidly (at most) opposing the President’s position, and thus lost the opportunity to defend and advocate the position they took today in any meaningful way. As a result, the Democrats took a position today (opposition to this bill) which they have not really defended until today.

They make this same mistake over and over. Isn’t this exactly what happened when they sort-of-supported-but-sort-of-opposed the Iraq war resolution in 2002 because they were afraid of being depicted as soft on terrorism, only to then be successfully depicted as soft on terrorism because they were too afraid to forcefully defend their position? It’s true that fewer Democrats voted for the President’s policy this time around, but it’s equally true that they found their voice only on the last day of the debate — on the day of the vote — after disappearing for weeks while they let John McCain “debate” for them.

Several liberal bloggers had predicted the McCain et al. “compromise” was just a head fake to keep the Dems off guard, and that in the end Bush would get the bill he wanted. The Wise Guys in Washington have yet to figure this stuff out.

Dan Froomkin:

Today’s Senate vote on President Bush’s detainee legislation, after House approval yesterday, marks a defining moment for this nation.

How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?

The legislation before the Senate today would ban torture, but let Bush define it; would allow the president to imprison indefinitely anyone he decides falls under a wide-ranging new definition of unlawful combatant; would suspend the Great Writ of habeas corpus; would immunize retroactively those who may have engaged in torture. And that’s just for starters.

It’s a red-letter day for the country. It’s also a telling day for our political system.

Yep.