Today is Constitution Day, a commemoration of a document that reportedly once governed the United States of America. At one time, the rules contained therein actually bound politicians and citizens to an agreed set of laws which everybody would follow or suffer consequences.
That was a quaint time.
Today, we know from experience that indomitable will and a talent at evading opponents is sufficient to nullify that Constitution. This week, the Washington Post printed two excerpts
, a new book by Barton Gellman about the Cheney
Presidency. Longtime readers probably already know that Fourthbranch has hijacked the government and used it to his own ends, but reading these excerpts (and I'm sure, the book) reveals one head-scratching moment after another. Here's an example:
The command center of "the president's program," as Addington usually called it, was not in the White House. Its controlling documents, which gave strategic direction to the nation's largest spy agency, lived in a vault across an alley from the West Wing  -- in the Eisenhower Executive Office Building, on the east side of the second floor, where the vice president headquartered his staff.
The vault was in EEOB 268, Addington's office. Cheney's lawyer held the documents, physical and electronic, because he was the one who wrote them. New forms of domestic espionage were created and developed over time in presidential authorizations that Addington typed on a Tempest-shielded computer across from his desk .
It is unlikely that the history of U.S. intelligence includes another operation conceived and supervised by the office of the vice president. White House Chief of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders were held in a vice presidential safe. An authoritative source said the staff secretariat, which kept a comprehensive inventory of presidential papers, classified and unclassified, possessed no record of these.
The excerpts cover the time period in March 2004 when a significant portion of the upper leadership of the Justice Department threatened to resign en masse
over the illegal spying program, which of course the Democrats were bullied into giving blanket amnesty for earlier this year (a law which the ACLU is continuing to fight
, because they're the ACLU). But this violation of the Fourth Amendment is certainly not the end of Cheney's assault on the Constitution. Scott Horton asked 6 questions
of Gellman today about his book, and the revelations are amazing. Cheney may have burned VP hopeful Frank Keating by releasing damaging information HE GOT DURING THE SELECTION PROCESS to Newsweek. That's just the kind of guy this is. You can see the parallels to other events. Then there's this very important point:
A lot of critics call Cheney and Addington contemptuous of the Constitution. I think that’s completely wrong–a cartoon that misses something important, because it fails to take them seriously. The vice president has an unyielding conviction, to which he has devoted substantial thought, about what the Constitution means. He occupies an extreme position in the usual separation-of-powers debate, sometimes beginning with widely accepted tenets but carrying them beyond the bounds of accepted scholarship. In his own frame of reference, the Constitution not only permits but compels him to help Bush break free of restraints on his prerogatives as commander in chief and leader of the unitary executive branch. But where Cheney does show contempt is for public opinion, the capacity of the citizenry at large to make rational decisions.
Go back and look at what he says about “opinion polls.” Invariably his message is that a politician who pays them heed is failing to do his job. As Cheney sees it, public opinion is fickle, ill-informed, self-contradictory, emotional–nothing like his own conversation with himself and trusted aides. He speaks disdainfully of critics as “elites,” but his own view of democracy is at the far elite extreme. Voters are entitled to choose a president every four years, he said at the National Press Club, but then they need to let him do his job. The transaction is like hiring a surgeon; pick a good one, and don’t try to tell him where to place the knife. This “trustee” model of democracy is associated with Edmund Burke, the Old Whig philosopher in 18th century England. It is not the model that took root here when the Founders designed a plan of government that derived its authority from the people. If you take Cheney’s view, aggressive efforts at secrecy, for our own good, to prevent us from making the wrong choices or interfering with government’s important work, are a rational response.
That is crucial. If you simply don't care about what anyone thinks of you, there is no barrier. You can state without compunction that "To the extent that the Constitution and laws are read narrowly, as Jefferson wished, the Chief Executive will on occasion feel duty bound to assert monarchical notions of the prerogative that will permit him to exceed the law,"
because you feel you know better and you must organize your belief of the Constitution around that belief in yourself. You can lie to Congressional leaders
boldly, asserting that Iraq has suitcase nukes, because you believe that Saddam is a threat and you organize the intelligence around that belief.
Gellman may think that Fourthbranch has given the Constitution a lot of thought, but I don't. I think he's given his own ego a lot of thought, and he's warped the Constitution to fit around it. And he's secure that this interpretation won't be challenged because he has enough will to steamroll right through anyone who would raise an objection. We're seeing this again right now from the woman who would be Vice President with respect to the "Troopergate" investigation in Alaska. The McCain campaign has sent a lawyer
(one of a whole passel
) to shut down the investigation and pressure the state Republicans who allowed it in the first place. Subpoenas have been issued for aides and Todd Palin, but the Governor's hand-picked Attorney General has told investigators that they won't testify
. And Sarah Palin herself has refused to testify
This is not about this particular politician. What is significant here is that Cheneyism is LEARNED behavior. Want to avoid a subpoena? Don't show up. Want to break the law? Just plow ahead and do it, and fight like hell to ignore the consequences, saying things like "I can do whatever I want until the courts tell me I can't."
The question becomes how you end Cheneyism before this cancer grows. Russ Feingold has some ideas
Our next president will face a difficult challenge. He must repair the wreckage the current administration has left, which means renouncing some of the powers the current President tried to amass as he turned a blind eye to the rule of law and separation of powers. No president will want to limit his own power. But if we are to be the nation our founders envisioned when they gathered in Philadelphia more than two centuries ago, we must work together — across party lines and at all levels of government — to protect and defend our Constitution and restore the rule of law.
So does Marty Lederman
1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the President’s constitutional powers and that minimize those of Congress and the courts. We have not conducted a comprehensive review of OLC opinions, nor could we as many are classified or otherwise inaccessible. Thus, we cannot offer an exhaustive list of the opinions that should be withdrawn. We do believe, however, that the list should include the Torture Memos, the DOJ Whitepaper on the Terrorist Surveillance Program, and the September 25, 2001 opinion on war powers.
The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. We believe that a model the next President should seriously consider adopting is “The Constitutional Separation of Powers between the President and Congress.” Setting forth the principles that will govern the determination of questions of presidential power will provide a constraint against the sort of result-oriented advice-giving that proved so problematic in instances such as the Torture Memo.
2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. The goal of the review should be to make sure that OLC’s memoranda and opinions are made available to the public to the maximum extent possible consistent with the legitimate confidentiality interests of the Executive Branch.
Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the President’s domestic surveillance program, and the use of secret prisons overseas for detention and interrogation [...]
The next President should also commit to review the Executive Branch’s practice in asserting privileges, including executive privilege. The presidential communications privilege is, according to the Supreme Court, a legitimate constitutional privilege rooted in the separation of powers. Nevertheless, this privilege is not absolut e and judicial precedent as well as long Executive Branch and congressional practice recognize that the President’s constitutional interest must be balanced against Congress’s legitimate interests in conducting investigations and oversight. The next President should commit that, when disputes over privilege arise, the executive will seek to resolve them through good faith negotiation and meaningful accommodation. This negotiation and accommodation process must include recognition by the Executive Branch of the legitimate claims to information that the Congress does have in its legislative, oversight and investigatory functions. In a recent and highly relevant case, Judge Bates authored a helpful discussion of Congress’ legitimate interests in information, which in our judgment is largely correct.
3. Structural Safeguards against Abuse of Power. To advance the third commitment to enhance structural safeguards, we suggest that the President instruct the Attorney General to pay particular attention to the procedures of OLC. Together with a number of our former colleagues, we have written a set of guidelines that OLC should foll ow in order to best effectuate its role... Public confidence in the impartial administration of justice must be restored. It is not sufficient that the President and Attorney General themselves be satisfied that they have addressed the problem. Their efforts must be considered credible on bipartisan and interbranch bases.
The Constitution has not become an issue
in this election, as much a cause of the failure of the media to cover it as of the candidates to express it. Barack Obama made a strong statement
a week or so ago on habeas corpus, but it went into the ether. Joe Biden made noise
by appearing to put criminal prosecutions of those who violated the law on the table (he later recanted
), but it didn't gather much interest. There are rumblings about a Congressionally-empowered commission in an Obama Administration
to study abuses of the rule of law and maybe prosecute down the road. But you're not hearing a lot about it.
I do believe that ending Chenyism in our time is the greatest challenge for the next President. Unless we restore the fundamentals of American government it won't much matter what we do on an economic or foreign policy or environmental level. I would like you to pledge to be a Constitution Voter
. The pressure will be immense to bind up the nation's wounds and heal the partisan divide, and then we'll have another disciple of Cheneyism 4, 8, 12, or 16 years down the road. We cannot cede the Constitution because it doesn't hit people in the gut. Democracy is at risk, everyone. That cannot be in dispute. Cheneyism must be rejected. Fully.
Labels: Barack Obama, Constitution, democracy, Dick Cheney, Joe Biden, warrantless wiretapping