Brave New World

At some level I suppose it's futile to expect Nero to do something other than fiddling, but it's the manner in which they went about this that's so frustrating. Feeling unsatisfied by directly contravening federal Congressional statutes, the Bushes have moved on to contravening judicial mandates. And since nobody in Washington is demanding anything approaching accountability, they'll get away with it.

The Environmental Protection Agency plans to announce today that it will seek months of further public comment on the threat posed by global warming to human health and welfare -- a matter that federal climate experts and international scientists have repeatedly said should be urgently addressed.

The Supreme Court, in a decision 15 months ago that startled the government, ordered the EPA to decide whether human health and welfare are being harmed by greenhouse gas pollution from cars, power plants and other sources, or to provide a good explanation for not doing so. But the administration has opted to postpone action instead, according to interviews and documents obtained by The Washington Post.

To defer compliance with the Supreme Court's demand, the White House has walked a tortured policy path, editing its officials' congressional testimony, refusing to read documents prepared by career employees and approved by top appointees, requesting changes in computer models to lower estimates of the benefits of curbing carbon dioxide, and pushing narrowly drafted legislation on fuel-economy standards that officials said was meant to sap public interest in wider regulatory action.

The decision to solicit further comment overrides the EPA's written recommendation from December. Officials said a few senior White House officials were unwilling to allow the EPA to state officially that global warming harms human welfare. Doing so would legally trigger sweeping regulatory requirements under the 45-year-old Clean Air Act, one of the pillars of U.S. environmental protection, and would cost utilities, automakers and others billions of dollars while also bringing economic benefits, EPA's analyses found.

Short version: The EPA lost a case in court, the Supreme Court ordered a decision on regulating greenhouse gases as a pollutant, the EPA rendered one, the White House decided not to open the email, and now they're going to punt on the whole thing. So goodbye from the world's biggest polluter.

The radical nature of the Cheneyite project in Washington has revealed giant flaws in the modern rendition of the Constitutional system. What we've now seen is that the structure of democracy in America has to this point been held by a broad gentleman's agreement. If laws aren't followed by the branch meant to execute the laws, everything breaks down. If court orders mean nothing, if federal statutes can be appended by someone other than the legislature, we are living in a spinning chaos.

This isn't that new - Andrew Jackson's famous quote about Chief Justice John Marshall's ruling on removing Cherokees from their land in Georgia, "John Marshall has made his
decision, now let him enforce it," comes to mind - but there's an audacity to the current project that does suggest that somuch of this government's practices are faith-based. Many of us believe in the law and the rules and the expected conduct based on following them, and this sliver of conservative thought just doesn't. They find it perfectly acceptable to disavow their own reports and rewrite their own rules and create their own reality. It's only because of the stunning lack of success of this project that there's even a chance to discredit it.

But this all comes back to accountability. Nobody tries to pull this off if they aren't confident they'll suffer no consequences. I think one of the more revealing essays of the week comes from Tim Noah at Slate, discussing this new Serious Bipartisan Commission report from Village elders about war powers, which is pretty much not needed if Article I, Section 8 were ever consulted in a rigorous manner. The document that James Baker and Warren Christopher provided this week would eliminate what little accountability is provided in the 1973 War Powers Act, eliminating the sunset provision for military action by the executive without Congressional approval after 30 days. But this is precisely what Congress desires. Noah writes:

Congress doesn't want to streamline its role in declaring war, because, for all its bluster (not to mention its constitutional responsibility), Congress doesn't want to be held politically accountable for the results. I first became aware of this phenomenon 21 summers ago while covering a House debate on the use of Navy convoys to escort 11 Kuwaiti oil tankers through the Persian Gulf. Iraq and Iran were at war, and although the United States didn't officially take sides, this military action reflected our government's quiet tilt toward Saddam Hussein's Iraq...

Anyway, on that August afternoon in 1987 the House was debating whether to invoke the War Powers Resolution, a 1973 law meant to require congressional approval of any executive action that introduced the armed forces into hostilities, or into a situation in which hostilities seemed pretty goddamned likely, as appeared to be the case here. (Happily, the Navy escort occurred without incident.) What amazed and shocked me, and moved me to write up the debate for the New Republic, was the unembarrassed manner in which members of Congress declared as their paramount interest the absence of any legislative fingerprints on whatever might result from allowing (or not allowing) the Navy convoys to enter an area of violent conflict. In fact, it was pretty much taken as a given that the War Powers Resolution would not be invoked, not because the president was not complying with it (no president ever has) but because doing so would require Congress to either approve or revoke Reagan's decision. Here is how I described the House debate 14 years later in this column (I can't seem to locate the original New Republic piece); I should point out that the first two speakers were members of Reagan's own party:

"This resolution puts congressional fingerprints on our course of action," complained Rep. Toby Roth. "Does this put the fingerprints and the handprints of the Congress on that policy?" asked Rep. Donald Lukens. No, assured Rep. Pat Schroeder: It was "a teeny-weeny first step" that "doesn't commit the Congress in any way." Only then could the resolution pass.

The Baker-Christopher proposal, then, is an empty exercise in high-mindedness for its own sake. Congress has all the war-making power it needs, and considerably more than it wants. The latter problem can't be solved legislatively. Cowardice, opportunism, and indecision inhabit a realm beyond the reach of law, and you'd think that two experienced hands like Baker and Christopher would understand that better than most.

Oh, they understand it all right. They're counting on it. And so do the Cheneyites who mapped out this plan for an unfettered unitary executive. It may have lost in unimportant areas like "court" and "public opinion," but inside the Beltway it is victorious and shining.

Charlie Brown On FISA

I had the opportunity to speak with CA-04 candidate Charlie Brown about the awful FISA bill that wormed its way through the House on Friday. Unlike Steny Hoyer and practically everyone else in the House, Brown has actually gathered intelligence in his career. He served two rotations in Saudi Arabia, coordinating surveillance flights over the No Fly Zone in Iraq. So he has an understanding of how intelligence is collected and what ought to be done when such collection results in information gleaned from Americans.

As soon as I brought up the FISA bill, Brown sighed. He said there was no way he could support the bill that was passed in the House, and he in particular cited the telecom immunity aspect for a variety of reasons. "When I was gathering intelligence, if I ever picked up information outside what was authorized, I would have to flag the tape and immediately deliver it to my commanding officer for destruction," he said. "If I didn't, I'd be sitting at Leavenworth." To treat the phone companies in a different way that he would have been personally treated seems unfathomable. Brown's main argument is that the world is a dangerous place and foreign surveillance within the law is sometimes warranted. But the precedent of giving phone companies a free pass after the President supplies them with a piece of paper allowing them to break the law is quite dangerous. "This is exactly what happened in 1973. In the Vietnam War, Lyndon Johnson lied about the Gulf of Tonkin incident as a pretext to get us into that war, and the resolution passed was misused to escalate that conflict without the control of Congress. in 1973 Congress reasserted itself and passed the War Powers Act to ensure that never again could the executive go to war without expressed approval of the legislative body. And that was ignored for the next 35 years." Passing a FISA bill that is the "exclusive" means for electronic surveillance is part of the same deception. Laws don't need to be reasserted, they need to be enforced.

Brown was concerned that we seem to continue granting immunity to the wrong people, and not just the telecoms. We bail out Bear Stearns but not individual homeowners. We throw individual privates in jail for Abu Ghraib but never go up the chain of command. "There is an accountability problem in Washington, DC," as Brown put it. And the Title I aspects of the bill, which allow warrantless spying of bulk targets under executive-proclaimed "exigent circumstances," particularly with no need to throw out the intelligence gained that way if later found to to be illegal, was a concern as well.

If Charlie Brown can manage to run for office in what has traditionally been a heavily Republican district and understand that Constitutional principles and federal statutes must come first, then it's just impossible to take Bush Dogs who voted for FISA out of fear seriously. "Conservative Republicans should never vote for this kind of bill... they ought to be skeptical of government power and protective of civil liberties."

It's important that as we go forward we support those candidates who understand these issues, who will not be swayed by what a lobbyist or a leadership PAC will suggest, but who have the experience and strength to vote based on their own principles. There's no question in my mind that Charlie Brown is that kind of candidate.