Prosecutor Purge and the Unitary Executve

Over and over again, the defense espoused by those in official position is that "no one has done anything improper," because even if they were dismissed for the most blatantly improper political reason - to interfere with ongoing investigations of the corrupt Republican power structure in Washington - that wouldn't be improper because of of the Theory of the Unitary Executive, where the President has sole control over anyone in the executive department. This is an assault on the underlying conventions of our political system - that people are treated equally under the law. By changing the conventions without notice, they are turning this country into something it has never been.

So, there was political pressure, but that's entirely proper because the President has complete unitary authority over the executive. It's all part of the same slide.

Unitary Executive = Ignore the Congress and the Courts

Libertarian leaning Republicans can't bring themselves to believe what I tell them about the "Unitary Executive" theory of presidential power to which this Administration adheres, but the fact is that this theory informs all of the excesses and arrogation of power that Bush has enacted. If laws get in the way of this theory, they are broken, plain and simple. It reduces our Rule of Law Republic to tatters - not worth the paper on which the hallowed Constitution is written.

The President continues signing laws publicly and with fanfare, and then, in a dark room away from the cameras, he signs his own special version of the law - the only one he'll obey - that doesn't bear any resemblance to will of Congress. Separation of Powers be damned.

President Bush, again defying Congress, says he has the power to edit the Homeland Security Department’s reports about whether it obeys privacy rules while handling background checks, ID cards and watchlists.

In the law Bush signed Wednesday, Congress stated no one but the privacy officer could alter, delay or prohibit the mandatory annual report on Homeland Security department activities that affect privacy, including complaints.

But Bush, in a signing statement attached to the agency’s 2007 spending bill, said he will interpret that section “in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch.”

The facets of the American governmental system that the President is questioning through his theory - that the Congress has any right whatsoever to regulate his execution of executive branch powers - have been well decided. The Supreme Court affirmed that Congress does have the power to regulate the discharge of Constitutional duties, even during wartime, back in the 1950's. You'd think the plain language of the Constitution would have been enough:

Article 1, Section 8
The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Article 2, Section 1
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Article 2, Section 3
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; ... he shall take care that the laws be faithfully executed...

Hell, Hamdan v Rumsfeld reaffirmed that the Congress has the power to regulate the Executive just months ago, and yet we still are subjected to this march of Executive Power. It amounts to a violation of Bush's oath, an affront to the Constitution, and an assault on traditions that have made this the Land of the Free.

Ultimately, the 60% of Republicans that still support these programs do so only because we have a Republican President. They "Trust" him. But they, God's Own Party, should know that human nature hasn't changed. From the time of the Bible on, power has corrupted. Our Founding Fathers understood that:

In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

You just can't beat Jefferson. How can the Republican Party have drifted so far from our core political values? I suspect the answer is that they are terribly afraid, and so can't miss an opportunity to sacrifice liberty for a phantom "security" that will never arrive.

Specter and the NSA

You've got to be kidding me, Arlen. There's a lot wrong with Specter's op-ed explaining his bill, but I'll start with this:

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say.

The President may well have constitutional authority to utilize his war powers, but that does not mean that the Congress must be mute in how he executes those powers. As we've seen recently in Hamdan, the Congress has the constitutional authority to regulate the discharge of duties by members of the government, whether they are officers of the Unitary Executive or not. So addressing whether the NSA program violates our 4th Amendment rights isn't the sole question. The question is whether the NSA program violates FISA, which is a constitutional and duly enacted law.

In fact, Senator Specter's bill effectively repeals FISA by amending the exclusivity clause. FISA would just be one of the possible ways to eavesdrop on American citizens on U.S. soil - the other being the executive authority of the President. This plops us right back in the bad old days before FISA, when for decades Presidents of both parties secretly abused their power to eavesdrop on innocent Americans. Political opponents were surveilled, blackmail ensued, and the core of our democracy was threatened. There can be no freedom when the government has the power to secretly invade our privacy because dissent is strangled through intimidation. There will be abuses of this power, because since the times of the bible human nature hasn't changed! The entreaties to "just trust us" are fundamentally unAmerican! As Thomas Jefferson once said, "in questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

If Specter's bill passes, our intelligence apparatus will once again vanish into the black hole of our Unitary Executive. Once again, our vast intelligence resources will turn, in secret, on our own citizens. Such authority, and the power to control it represents, will lose us the Republic.

Phase 2

Telling us something that you knew already if you were paying attention, we have finally have the Phase 2 Investigation into the lead-up to the war in Iraq. Phase 1 of the investigation was into the flaws in intelligence, whereas Phase 2 is the inquiry into how the public case for war was made by the Administration.

It is damning:

• Statements and implications by the President and Secretary of State suggesting that Iraq and al-Qa'ida had a partnership, or that Iraq had provided al-Qa'ida with weapons training, were not substantiated by the intelligence.
• Statements by the President and the Vice President indicating that Saddam Hussein was prepared to give weapons of mass destruction to terrorist groups for attacks against the United States were contradicted by available intelligence information.
• Statements by President Bush and Vice President Cheney regarding the postwar situation in Iraq, in terms of the political, security, and economic, did not reflect the concerns and uncertainties expressed in the intelligence products.
• Statements by the President and Vice President prior to the October 2002 National Intelligence Estimate regarding Iraq's chemical weapons production capability and activities did not reflect the intelligence community's uncertainties as to whether such production was ongoing.
• The Secretary of Defense's statement that the Iraqi government operated underground WMD facilities that were not vulnerable to conventional airstrikes because they were underground and deeply buried was not substantiated by available intelligence information.
• The Intelligence Community did not confirm that Muhammad Atta met an Iraqi intelligence officer in Prague in 2001 as the Vice President repeatedly claimed.

They swore to threats that were contradicted by available intelligence. That's called lying. The White House push back that this contradictory intelligence never made it to the president runs afoul of their often-cited theory of the Unitary Executive. If someone in the executive branch new it, then the Executive knew it, and they are accountable.

Fein on Forcing Oversight on the Unitary Executive

Via FireDogLake, we have a Bruce Fein editorial on a method for forcing the notoriously tight White House to give up some information to Congressional oversight. He proposes:

A Democrat-controlled 110th Congress must enact new legislation to challenge executive privilege if it hopes to exercise meaningful oversight of the White House. The legislation should establish House and Senate legislative-executive committees featuring legislative majorities to arbitrate disputes over congressional access to national security information.

Ummmm, Bruce? I love you, man, but how is that going to work? Perhaps I'm ignorant of some ability of the Congress to enact this type of legislation without the signature of the President. Barring that, though, the idea of Bush signing a law designed to allow the Congress to investigate him is what some might call naive. It should go without saying that we wouldn't have the votes to override. So what's the esteemed Deputy AG talking about?

Vacationing Through the Good Stuff

Well, I'm off on what promises to be a spectacular trip through Europe, and I'm taking it during a shocking deluge of "fun" news stories that I'm going to miss*. Fun for us Democrats, that is:

• We've got the Prosecutor Purge - the Gonzales Eight that were fired for not prosecuting enough Democrats "before November" to blunt the Republican Culture of Corruption. Please note that the DOJ had already focused 87% of its investigations on Democrats, but that just wasn't enough for this hyperpartisan White House. You can get all your coverage on the Purge from Josh Marshall at TalkingPointsMemo and TPMMuckraker.
  

• We've got the new disclosure of the abuse of one of the most controversial provisions in the Patriot Act, the National Security Letters that the FBI can issue secretly, and without judicial oversight, to spy on Americans. Given that the signing statements Bush uses to defend this law breaking are a direct consequence of this Administration's theory of the Unitary Executive, my old compatriot Glenn Greenwald will be your go-to source. I've written about the consequences of this theory again and again.
  

• We've got the breakdown of VA care that the Democrats have been making noises about since I first started paying attention to politics. Have the heads stopped rolling? At least, in this Post-Rumsfeld era, people are being held accountable. You can thank the Democrats for that too.

• We've got the ongoing response to Ann Coulter's almost unbelievable slur against John Edwards. So far we've knocked the harridan off of seven of her distributor's newspapers and forced many of her advertisers off her site. Small victories on this one are all we should expect - she exemplifies the new Republican Party and they're going to keep her.
  

• Scooter Libby was just convicted, and the fallout continues - despite what Fox News says to the contrary. With Jurors publicly emphasizing Libby as the "fall guy," wondering aloud "where Rove" and "these other guys" are, and the "cloud over the Vice Presidency," could Libby flip? Given that guidelines say the applicant should have been convicted at least 5 years before the pardon, the pressure may be on. Could we have our sights on Big Time?
  

Were these stories occurring at any time during the last six years before the Democrats took power of both houses of Congress, they would no doubt languish - swept under the rug for Republican partisan considerations that seem to outweigh all responsibilities for good government. Now that we've got a Congress interested in fulfilling their duty of oversight, I wonder what will be different when I start absorbing news again in two weeks. Here's hoping it's a whole new world (but one where I can still be comfy).

I know it's going to be hard coping without my saber-like mind picking out (and apart) the gems for you during these two weeks, just as I know that the hundreds of thousands of other blogs out there could never fill that void. What can I say? You'll just have to deal - but stay away from the Oxycontin.

*It's an easy trade. :)

Habeas Not a Right Pt II

Our Attorney General, ladies and gentlemen:

GONZALES: There is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it's never been the case, and I'm not a Supreme --

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can't take it away, except in the case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn't say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by...

Gonzales is technically correct - the best kind of correct. Our Constitution does not explicitly grant the right of habeas corpus to its citizens. It does guarantee that the right to habeas corpus - which apparently no one actually has - shall not be suspended except during times of insurrection or invasion, but that doesn't mean that we the people actually retain the right. I've seen full arguments articulating this position, and they rely on congressional authorization of scopes of habeas corpus.

Gonzales' reading is exceedingly convenient, isn't it? The Bush Administration doesn't believe in the right to challenge your detention, so it's head lawyer contorts himself thusly. Perhaps he should be reminded of the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That seems clear enough, eh? The really radical thing about America, you see, was that the government of the United States doesn't grant us rights, but rather guarantees them. Our rights are granted by our creator, or by virtue of our shared humanity if you prefer. Rather than our citizens having a set number of rights, it is our government whose powers are enumerated and thereby constrained. We the people retain all the rights not explicitly given to our government, which, at the time of its inception, made America a radical nation indeed.

Just to drive home how scandalous we should view Alberto Gonzales' statement, the following quote from James Madison is useful:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system...

Alberto Gonzales is the avatar of Madison's concern. Yoo's theory of the Unitary Executive is the founder's worst nightmare.

Finally, we have the following comment, via Kevin Drum:

There is indeed no bottom to this Administration's sophistry. So here's something to wonder about. Amendment IV to the US Constitution says "no warrants shall issue, but upon probable cause." It doesn't explicitly say only the courts can issue warrants. Nor does Article III say "only courts can issue warrants" in so many words. The word warrant does not appear in the main text of the constitution. I assume this is because we inherited a common-law practice from England that nobody thought needed to be written down. But I don't see why the Gonzales-Yoo school would not declare at some point that the executive branch can issue "warrants" too. Presto! Instant Fourth Amendment compliance! Of a kind.

I've grown into a hearty dislike of Alberto Gonzales. Who could have thought that we'd be nostalgic for Ashcroft?

Condi and the Dust of 9/11

In the days after 9/11, thousands of New Yorkers breathed the cloudy air with trepidation, allayed only by reassuring EPA pronouncements concerning air quality. Recently, Christie Todd Whitman has been somewhat of a punching bag on the issue of those "safe to breath" findings, since hundreds of first responders have been getting sick. It turns out that the contents of the buildings they inhaled are still there, irritating their lungs with a highly alkaline mixture - effectively giving them an internal chemical burn. These men and women are losing lung capacity at a shocking rate, and indeed, the first air-related fatalities are now being reported.

As I said, Christie Todd Whitman has been getting plastered over her involvement, so perhaps she's looking to spread the burden around a little. Any guesses who leaked these internal documents?

Condoleezza Rice's office gave final approval to the infamous Environmental Protection Agency press releases days after 9/11 claiming the air around Ground Zero was "safe to breathe," internal documents show.

Now Secretary of State, Rice was then head of the National Security Council - "the final decision maker" on EPA statements about lower Manhattan air quality, the documents say.

Scientists and lawmakers have since deemed the air rife with toxins.

Early tests known to the EPA at the time had already found high asbestos levels, the notes say. But those results were omitted from the press releases because of "competing priorities" such as national security and "opening Wall Street," according to a report by the EPA's inspector general.

The chief of staff for then-EPA head Christie Todd Whitman, Eileen McGinnis, told the inspector general of heated discussions, including "screaming telephone calls," about what to put in the press releases.

Whoever leaked this stuff, the upshot is the same. Shame on you, Condi. You failed your countrymen again - this time for political expediency. The August PDB bungle was just incompetence, whereas this is an active decision to put Wall Street's needs above the lives of our 9/11 heros.

Incidentally, at the end of the piece there's a quick allusion to the consequences of the Unitary Executive theory of Presidential power:

Now-retired Inspector General Nikki Tinsley told The Post her auditors tried to question the head of President Bush's Environmental Quality Council, but "he would not talk to us."

That's not some journalist that couldn't get answers - that's the IG.

Hamdan vs. Rumsfeld

Victory for the constitution! Defeat for the royalists!

Addressing the substance of Hamdan vs. Rumsfeld, the Supreme Court found that the military tribunals set up to review the cases of prisoners held at Guantanamo are unconstitutional, requiring review of their cases by congressionally established courts. It is with a sense of irony that I note these are the same tribunals set up by the Bush Administration after Hamdi vs Rumsfeld came down holding that the President could not order people held indefinitely without court review. Needless to say, by finding that the President has overstepped his constitutional authority the Supreme Court has delivered a serious blow to the unitary theory of executive power held by the Bush Administration.

But, according to this teaser from Marty Lederman at SCOTUSblog this holding isn't the most important one in the decision:

As I indicated here, the holding that the military commissions are unlawful -- although of enormous significance -- is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:

1. That the President's conduct is subject to the limitations of statute and treaty.

Additionally, in the process of the decision, the court dismissed the government's argument that when Congress passed the AUMF (Authorization for Use of Military Force) it silently amended the law to allow military tribunals in violation of the Uniform Code of Military Justice.

In the Slashdot parlance, IANAL, but in the context of the NSA spying scandal these two findings are facially important. The Supreme Court has held to be true what we as Americans have known since the revolution: That no American is above the law. There is no American King, and thank god. It seems, to my unlawyerly mind, that these facts demolish any justification the Bush Administration has for calling the NSA spying program lawful, since they directly attack the two arguments the Administration has left. (1) The Congress did not silently amend FISA to allow for the NSA program when the enacted the AUMF. (2) The Congress has the authority to regulate the actions of members of the Federal government, including how the President executes his Article II responsibilities.

You wouldn't have thought those two points would be contested, but this is the Bush Administration, and they have a radical agenda.

Lies in the Iraq Intelligence?

The Washington Post has an article about ex-CIA officer Tyler Drumheller's claims that his warnings about faulty Iraq Intelligence went unheeded in the run-up to war.

In late January 2003, as Secretary of State Colin Powell prepared to argue the Bush administration's case against Iraq at the United Nations, veteran CIA officer Tyler Drumheller sat down with a classified draft of Powell's speech to look for errors. He found a whopper: a claim about mobile biological labs built by Iraq for germ warfare.

Drumheller instantly recognized the source, an Iraqi defector suspected of being mentally unstable and a liar. The CIA officer took his pen, he recounted in an interview, and crossed out the whole paragraph.

A few days later, the lines were back in the speech. Powell stood before the U.N. Security Council on Feb. 5 and said: "We have first-hand descriptions of biological weapons factories on wheels and on rails."

So, we have yet another example of the Administration deliberately ignoring the facts that don't agree with their predetermined conclusion. They ignore the facts so that, when caught, they can conveniently claim ignorance of the facts that cast their assertions in doubt. As with the aluminum tubes, the reconstituted nuclear program, the tons of operational chemical and biological agents, the Al Qaeda connections, the "mobile chemical weapons trailers" that we found out were mobile outhouses, and now with more of the intelligence Powell used in his infamous U.N. presentation, the Administration presented evidence it had been told was unreliable or flat-out false.

If this happened once or twice, you might reasonably say that knowledge is not perfect within a bureaucracy, and even without rampant incompetence or malfeasance communication up and down the chain might falter on a few occasions. But this is not once or twice, this is a pattern. This is a concerted attempt to use the only excuse available to them - "sure, we were told at one time that this intelligence wasn't worthy, but then we weren't reminded later so it found its way back in." It's an excuse based on ignorance within the "Unitary executive", and this highest of accountability-phobic arguments is all they have left to offer as an explanation for the litany of falsehoods that took us to war.

No, at this point it is much more likely that we were actively mislead to achieve a preordained policy goal. It wasn't that everyone agreed that Saddam had WMDs, it was that everyone we agreed to listen to said he had WMD, and the dissenters were Bush haters that couldn't get over the 2000 election loss - even in the CIA, of all places, that most liberal of Washington institutions. Oy. Our nation's sterling image and honorable military stand in tatters because of this disastrous and dishonest war.