December 26, 2005
At stake in the so-called war on terror
is longer just treatment of detainees, but the freedom of Americans.
Bush and company have very
wrongly used the commander-in-chief power as a lever to make
the President far, far too powerful, powerful far beyond anything
intended by the framers, who created a government in which the
legislature was to be the more powerful branch.
John Yoo has despicably abetted
this process by writing intellectually corrupt legal opinions,
which were to be used to shield officials high and low against
the possibility of criminal prosecutions even though their acts
plainly are criminal. The legal opinions, moreover, were classified,
were all kept secret, in major part because Congress and the
public would never stand for what is being done if they were
to learn about it by reading the opinions
Congress has been ineffective
and cowardly.
Bush has committed the impeachable
felony of conspiracy to commit torture, but the media and the
politicians refuse to discuss this. He should, however, be impeached
for this felony.
The New York Times has apparently withheld information
about various important subjects, and one wonders what those
subjects might be.
Samuel Alito should be asked
very specific, pointed questions about the extent of Presidential
power.
In accordance with first amendment
values, there should be reporters' privilege when confidential
sources alert them to evildoing by government, but not when confidential
sources try to use reporters to further evildoing by government.
Bush's claims of power all
come down to a single overarching principle, articulated for
him in legal terms by John Yoo, and articulated in political
speech by Bush himself. That overarching principle is that the
President is all powerful whenever he asserts a claim that what
he authorizes or does is for the purpose of fighting a war.
John Yoo said that such all-surpassing
power comes from the commander-in-chief clause and cannot be
limited by Congress. Of course, Yoo shamelessly distorts the
commander-in-chief power, which was intended simply to put a
civilian in charge of the military lest a general seek to take
over the country and become dictator, and was not intended
to make the President a dictator, was not intended to
give him the dictatorial power that the framers were guarding
against in a general.
Never has this been put more
eloquently than in a passage in a concurring opinion written
in the Korean War's Steel Seizure Case by that most eloquent
of all Supreme Court Justices, Robert Jackson:
His command power is not such
an absolute as might be implied from that office in a militaristic
system but is subject to limitations consistent with a constitutional
Republic whose law and policy-making branch is a representative
Congress. The purpose of lodging dual titles in one man was to
insure that the civilian would control the military, not to enable
the military to subordinate the presidential office. No penance
would ever expiate the sin against free government of holding
that a President can escape control of executive powers by law
through assuming his military role.
Bush, of course, doesn't write,
and most likely doesn't even read, legal opinions, whether from
Supreme Court Justices or Department of Justice lawyers. (Opinions
are more than one page long.) Bush merely says, echoing Yoo,
that because he is commander-in-chief he can do whatever he claims
is necessary to protect Americans. He also says that Congress'
authorization of the use of force allows him to engage in warrantless
electronic surveillance.
Of no concern to Push is the
fact that legislators say they never even thought about warrantless
electronic eavesdropping when considering an authorization of
force (they were, after all, focused on military action, not
surveillance); that people who apparently have read the Congressional
history find no mention of surveillance, that there is a specific
law against what he is doing. Ich bin der Staat, after
all.
Attorney General Gonzalez,
in Bush's defense, says that a few Justices of the Supreme Court
-- not all -- said in the Guantanamo case that the authorization
of force means we can imprison enemy fighters. Therefore, concludes
Gonzalez, the authorization also means we can wiretap citizens
without a warrant. It does not seem to occur to this mental giant
of an Attorney General that in every war one takes and holds
prisoners, so that an authorization of force must mean
you can do this. But why the authority to take enemy prisoners
-- an incident of every war -- means you can also wiretap
American citizens without a warrant, and why it means this even
in the face of a contrary statute, simply escapes one who is
not a hack henchman for Bush. On the other hand, L'Etat, c'est
moi, so what a statute of Congress says is irrelevant.
The statements of people like
Bush, Gonzalez and Cheney, and the so-called legal opinions of
John Yoo, are not to be taken seriously from the intellectual
standpoint. Indeed, one wonders if they are even seriously meant,
since they are too stupid, too frivolous, to be intellectually
serious. The true, underlying intended function of these claims,
and particularly of the legal memos, is really something quite
different.
The intended function is to
provide a shield for Bush and company, down to the lowest CIA
operative, NSA operative, or grunt, if someone were ever to think
about putting them in the criminal dock for what they have done.
The possible defendant, be he Bush on down to a grunt, could
point to the legal opinions of John Yoo (and his one time boss,
now Federal judge Jay Bybee) and say, "I cannot be fairly
accused of a crime. There were legal opinions from high Department
of Justice officials -- opinions on torture, on surveillance
[and possibly on God knows what else that we don't even know
about yet] that said what I was doing was legal." It was,
indeed, CIA personnel's desire for protection -- dare one say
cover -- that led to the torture opinions. Gonzalez recently
pointed out that Bush had documents from lawyers all over Washington
(as I believe Gonzalez put the matter) saying that what Bush
was doing was lawful. Some NSA officials were very worried about
the legality of the warrantless surveillance. Some of the NSA
people were -- and still are -- so worried about its legality
that they apparently wouldn't participate in it and/or blew the
whistle to The New York Times despite John Yoo's classified
memos claiming legality.
Once the story about the warrantless
surveillance broke, Bush, Gonzalez & Co. came up with some
other claims that in effect hold that the 1978 Foreign Intelligence
Surveillance Act, which banned warrantless electronic surveillance,
must be considered in Ron Zeigler's deathless word -- inoperative.
There has been, it is said, a lot of technology changes since
1978. And a two minute phone call between terrorists can lead
to hundreds or thousands of deaths.
But FISA allows the government
to engage in immediate warrantless electronic surveillance as
long as it thereafter seeks a warrant within 72 hours. All the
new technology and two minute phone calls in the world can't
be quick enough to escape electronic surveillance once the latter
has been applied immediately, without a warrant, with
the only requirement being that the government then seek a warrant
within 72 hours after starting the surveillance. The claims
about the need for speed are just so much smoke. One cannot,
after all, be more immediate than immediate, and the government
is authorized by FISA to be immediate.
Nor need there be fear of lack
of cooperation from the secretly operating Foreign Intelligence
Surveillance Court, from which warrants need be sought. The court
can and does act very quickly -- once a judge held a hearing
in his living room at 3 a.m. on applications for a warrant --
and last year, it is reported, the court received 1754 applications
for warrants and denied not a single one. From 1995-2004 the
court received over 10,600 applications for warrants and from
1978 onward it has received nearly 19,000, and in this entire
period it has turned down only four of the nearly 19,000 (all
four in 2003, apparently). So, if there is to be a fear here,
it is not that the court will be uncooperative, it is that the
court is usually a rubber stamp. (Indeed, the head of the court
is the pro-establishment Judge Colleen Kollar-Kotelly).
The only administration claim
that makes even the slightest intellectual sense is one that
amounts to saying that the FISA procedure was ignored because
the government wanted to conduct surveillance that could not
meet even the obviously minimal standards of a FISA court that
rejected none of 1,754 applications for warrants last
year and only 4 of nearly 19,000 since 1978. But this claim simply
leads to the heart of the problem: it simply leads to the fact
that, as has been said here before, it is now no longer the fates
of our enemies that is involved, but rather the rights and freedom
of Americans themselves.
For we are faced with an Executive,
whose charge is led by the dumb Bush and the truly evil Cheney,
that says it can do whatever it wants in the name of allegedly
safeguarding America, and that whatever it does for this claimed
purpose is therefore ipso facto legal regardless of whether it
is in violation of statutory law, in violation of longstanding
custom and precedent, or in violation of any reasonable conception
of humanity.
If the President says it's
necessary to torture people to safeguard America, and even to
murder some of them as part of the interrogation process in order
to safeguard the country, then this is legal.
If he says it's necessary to
secretly kidnap people, apparently by the thousands, and secretly
fly them off to other countries where they will be tortured,
all as part of a process that is sanitized by calling it "rendition,"
then this is legal.
If he says, it is necessary
to engage in permanently warrantless wiretaps, then this is legal.
And so on. Why, then, would it not be legal, if the President
says it must be done to safeguard America, to pick up Americans
off the street and beat the crap out of them (or worse) in prison
in order to obtain information? Why wouldn't it be legal, if
the President says it must be done to safeguard our country,
to wiretap two or three million people, or to break into their
homes in order to steal their papers, computers, etc. in order
to obtain information (like Nixon's henchmen broke into the office
of Daniel Ellsberg's psychiatrist for this very purpose)?
Thus it is that today we find
that our country has been doing things, many of them discussed
above, that would have once seemed inconceivable, even in the
darkest days of the Civil War or World War II. Because of the
orders and opinions of Bush and his henchmen we have tortured
and killed prisoners, kidnapped thousands (apparently) of people
as part of the process that is sanitized by calling it "rendition,"
have sent kidnapped people to other countries to be tortured,
have run secret prisons in foreign countries, have secretly held
various "high value" prisoners in compounds located
God knows where, have conducted warrantless electronic surveillance
on Americans, on false premises have started a war that has killed
over 2,000 Americans and many, many thousands of Iraqis, and
have done God knows what else that has not yet been disclosed.
It is little wonder given all
this, and given claims that the President can do whatever he
wants, that one believes it is democracy and freedom that have
become at stake.
It was, I think, Germaine Greer
who said a few decades ago that a person's views are a cluster,
that if a guy on an airplane told her what he thinks about one
thing, she could almost surely tell you what he thinks about
a lot of things. She was, of course, dead right. And the cluster
of views held by Bush, Cheney, et. al., are really pretty rotten,
as made plain by the roster of once inconceivable things we have
now done. We did all these things because those guys claimed
them essential and ordered them done. People who variously are
and collectively include, a former drunk, a serial failure in
business, a drunken flunk-out from Yale when less than two percent
of Yalies flunked out, a draft dodger, a combat avoider, guys
who have spent their lives getting ahead by pull, connections
and family influence rather than brains and talent (which they
don't have), and guys who are just plain mean, nasty bastards
are at the helm, and ardently believe in doing the terrible things
we have done.
Are we supposed to not
fear the possibility that there could already be more horrible
stuff which we don't even know about yet, or that in future more
such stuff could be done? Are we supposed to not worry
about this?
The New York Times admitted earlier this year that the
paper had changed articles in response to concerns expressed
in advance by the CIA and other government agencies. Since the
paper would not disclose what articles these were, or what changes
had been made, I wrote here that "For all we know, the excluded
facts or details could be ones of enormous importance for the
public to know. The possibilities will not bear mention; the
mind reels at some of them."
As indeed the mind should have.
For now we know one of the stories that was not only changed,
but was killed for a year: the story about the warrantless electronic
disclosure authorized by Bush (and, as he himself has said, reauthorized
by him 30 times). When it finally broke the story a few weeks
ago, The Times said, in its lengthy article, that the
government had asked it not to print the story, and it therefore
had in fact delayed it for a year to do "additional reporting"
(and then had omitted certain unknown details).
Imagine that: The Times,
at the behest of the government, sat on this nation-shaking story
for over a year without disclosing it. Does this not remind you
of The Times' failure, at government request, to print
what it knew in the early 1960s about the impending Bay of Pigs
invasion, the invasion which therefore went ahead because it
had not been publicly disclosed and which proved to be a perfect
storm of disaster?
No doubt The Times
felt it was acting patriotically in both cases, but we know
that its failure to perform its First Amendment duty led to disaster
at the Bay of Pigs. And it is not unfair to suspect that bending
its knee to the government for one year with regard to illegal
surveillance will also prove a horrible mistake, just as its
failure to question the government's reasons for going to war
in Iraq was a horrible mistake.
The Times did not disclose why it bent the knee
for one year on the electronic eavesdropping story, and there
has been but little notice or discussion of the matter in the
media. When a newspaper, let alone the country's leading newspaper,
sits on a story like this for a year, instead of telling the
public what it has every right to know and a deep interest in
knowing because the nature of our governing system is involved
and our freedoms are involved, when the nation's paper of record
sits on a story like this for a year, its conduct and the reasons
for its conduct demand explanation and analysis.
There is one other matter that
has been brought up here before and is vitally related to The
Times story. That is the question of the reporter's privilege
of confidentiality.
It appears that one of the
big reasons that The Times was able to learn about and
report on the warrantless eavesdropping is that at least a dozen
people in government agencies, including the NSA, were so worried
about the legality and propriety of the eavesdropping that they
were willing to talk to The Times on condition of being
granted anonymity.
King George, however, has
ordered an investigation. He wants to find out who these people
were and clap them in irons because they revealed his illegal
conduct. It is possible that one way he might try to learn their
identities is by subpoenaing the reporters in an effort to force
them to reveal their sources or to confirm or deny various pieces
of information. If this were to happen, The Times should
fight him to the death, for freedom of the press to perform its
first amendment duty of revealing governmental misconduct to
the people -- the very duty mentioned by Justice Black in The
Pentagon Papers Case -- would be deeply involved, as derivatively
would be the safeguarding of the freedom of citizens themselves.
It has been said before here
that, in terms of the purposes of the first amendment, prominent
among which is the revelation of governmental misconduct so that
it can be stopped, there is a vast difference between governmental
insiders revealing such misconduct to the press on an anonymous,
confidential basis in the hope that it may thereby be stopped,
as occurred in the electronic surveillance case, and government
insiders using the press, on an anonymous, confidential
basis, in order to further governmental misconduct, as
Libby, Rove and Cheney have done on the Valerie Plame case. If
we want to carry out the first amendment purpose of stopping
governmental misconduct, there should be a privilege of confidentiality
in the first case but not the second.
One suspects that the Times,
as it should, will fight the government to the death if
its reporters are subpoenaed in the warrantless surveillance
case. For about a couple of months now, the paper's news columns
(like some other media too) have regularly given the reasons
why sources who revealed particular matters did so only on condition
of anonymity. It is regularly said in news stories that sources
required anonymity because they were not authorized to speak
about a matter, or because a matter was classified, etc. This
likely is being done partly as a result of the heat that has
recently been put on the media for its prior vast overuse of
anonymous sources without ever mentioning the fact, let alone
the reason for it.
But doubtless it is also being
done to build a record, a public record, of all the information
that the paper (like other media) could bring to the public only
by granting anonymity to sources who otherwise would not talk.
One builds a record for a reason. Here the reason almost surely
is to have a conveniently available public record of the importance
of confidentiality in bringing important information to people
should there be legal proceedings seeking to force reporters
to reveal sources' identities or confidential information or
documents, or should it prove necessary to seek state or federal
legislation protecting the confidentiality of sources. So, as
said, the Times (and other media too) seems to be preparing to
fight if necessary, and one say more power to them in the warrantless
surveillance matter, where our freedoms are at stake.
This brings me to the subject
of Congress.
The institutional and individual
rot in Congress has now been put on display in the electronic
surveillance area. Here Congress was supposed to exercise oversight
over the executive branch. The way this "oversight"
was "exercised" was that a small number of legislators
at the head of relevant committees would go to the White House,
where Cheney and company would rapidly go through subjects that
are claimed to be technical and complex. The legislators could
bring no staff and were not allowed even to take notes -- how
could any self respecting human being accept a condition under
which he or she is told, has it imposed on him/her, is ordered
, that he/she is not permitted to take notes on a serious
and difficult subject but is expected nonetheless to learn and
exercise oversight over it.
In addition to being allowed
no staff and no notes, legislators say they were unable to discuss
what they learned with anybody , lest they violate rules
of classification and secrecy. When one of them, Jay Rockefeller,
wished to register concerns in writing, he could not even have
a secretary type the letter lest the secretary see what he was
saying, and instead he had to send a handwritten letter. (And
when one NSA official privately mentioned his concerns to a Congressional
official, nothing ensued because "'People just looked the
other way because they didn't want to know what was going on.'")
How can grown men and women act so cravenly.
It has been said here many
times that there should be impeachment because Bush and Cheney
are plainly committing the felony of conspiracy to commit torture,
which is punishable by up to life imprisonment and, being
a felony, is an impeachable high crime or misdemeanor. No conservative
has ever written or emailed to deny that they are violating the
anti-torture statute, but thus far neither Congress nor the media
have wanted to discuss this. Now Bush and Cheney are committing
the felony of unlawful electronic surveillance in violation of
the FISA, which is a felony punishable by up to five years in
prison and is likewise an impeachable high crime and misdemeanor.
(Senator Boxer says that she heard John Dean say that Bush's
recent admission about the surveillance is the first time that
he, Dean, had ever heard a President admit to an impeachable
offense.)
So now we know that
Bush is guilty of at least two impeachable crimes. And many people
think -- not implausibly -- that the distortions if not outright
lies by which Bush, Cheney, Rumsfeld, et. al., took us into war
are themselves impeachable as political (albeit not legal)
high crimes and misdemeanors.
Investigations are being discussed
and censure is being mentioned. These actions may be, almost
surely would be, politically easier than impeachment, but nothing
can really substitute for it as a vehicle for stopping
gross usurpations of power and ungodly distortions of the constitutional
plan envisioned by the founders whom Bush and his fellow right
wingers love to (falsely) cite.
The confirmation of Samuel
Alito should also be affected, although, like impeachment,
this probably won't happen even though it should
happen. By rights, as it were, Alito's confirmation hearings
should be put off until after full hearings are held, perhaps
by the Senate Judiciary Committee, into the question of the gross
usurpations of power by the Executive. Otherwise, at least if
one assumes Congress might impeach and convict Bush/Cheney, or
at minimum will issue a formal censure of them, we are likely
to get yet another Supreme Court Justice nominated by an unsurper
to carry out his views, including views of presidential power.
(If memory serves, the Republicans stopped Abe Fortas from gaining
a higher judicial position when Lyndon Johnson, who nominated
him, had become thoroughly discredited, and one is hard pressed
to understand any principled reason why the situation should
be different now.)
But, assuming as one does that
Alito's nomination hearings will go forward as scheduled, it
is more important than ever for Senators on the Judiciary Committee
to ask him sharp, short, penetrating questions about his views
of Presidential power, questions of the type Senator Specter
had submitted to Harriet Miers. It is similarly important that
Senators demand full, candid answers to those questions, rather
than letting Alito get away with the humbug they let John Roberts
get away with, and that Senators reject Alito if his answers
indicate that he would or might support, and would not necessarily
vigorously oppose, the kind of constitutional distortions, the
kind of overweening, freedom-destroying executive supremacy,
sought by the usurper of power who nominated him.
We cannot remain a free country
with the Bush/Cheney view of the Executive uber alles --
a view at the opposite pole from the framers' desire for a government
where, precisely to avoid tyranny, the legislature is
supreme as between the two political branches, and the Senate
should not confirm to the Supreme Court a man who will not pledge
to oppose this usurpation, this destruction of the constitutional
plan.
Lawrence R. Velvel is the Dean of Massachusetts School
of Law. He can be reached at velvel@mslaw.edu.
*This essay represents the
personal views of Lawrence R. Velvel.