Democrats’ responsibility for Bush radicalism

From Common Dreams:

Democrats’ Responsibility for Bush Radicalism
by Glenn Greenwald
Salon.com
August 4, 2007

It is staggering, and truly disgusting, that even in August, 2007 — almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history — that George W. Bush can “demand” that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply (Meteor Blades has the list of the 16 Senate Democrats voting in favor; the House will soon follow).

I just finished a discussion panel with ACLU Executive Director Anthony Romero which was originally planned to examine his new (superb) book about the work his organization has done for years in battling the endless expansion of executive power and presidential lawbreaking. But the only issue anyone in the room really wanted to discuss — including us — was the outrage unfolding on Capitol Hill. And the anger was almost universally directed where it belongs: on Congressional Democrats, who increasingly bear more and more responsibility for the assaults on our constitutional liberties and unparalleled abuses of government power — many (probably most) of which, it should always be emphasized, remain concealed rather than disclosed.

Examine virtually every Bush scandal and it increasingly bears the mark not merely of Democratic capitulation, but Democratic participation. In August of 2006, the Supreme Court finally asserted the first real limit on Bush’s radical executive power theories in Hamdan, only for Congress, months later, to completely eviscerate those minimal limits — and then go far beyond — by enacting the grotesque Military Commissions Act with the support of substantial numbers of Democrats. What began as a covert and illegal Bush interrogation and detention program became the officially sanctioned, bipartisan policy of the United States.

Grave dangers are posed to our basic constitutional safeguards by the replacement of Sandra Day O’Connor with Sam Alito, whose elevation to the Supreme Court Congressional Democrats chose to permit. Vast abuses and criminality in surveillance remain undisclosed, uninvestigated and unimpeded because Congressional Democrats have stood meekly by while the administration refuses to disclose what it has been doing in how it spies on us. And we remain in Iraq, in direct defiance of the will of the vast majority of the country, because the Democratic Beltway establishment lacks both the courage and the desire to compel an end to that war.

And now Nancy Pelosi and Harry Reid, with revealing symbolism, cancel their scheduled appearances this morning at Yearly Kos because George Bush ordered them to remain in Washington in order to re-write and expand FISA — a law which he has repeatedly refused to allow to be revised for years and which he has openly and proudly violated. Congressional Democrats know virtually nothing about how the Bush administration has been eavesdropping on our conversations because the administration refused to tell them and they passively accepted this state of affairs.

The intense rush to amend this legislation means that most of them have no idea what they are actually enacting — even less of an idea than they typically have. But what they know is that George Bush and Fox News and the Beltway establishment have told them that they would be irresponsible and weak and unserious if they failed to comply with George Bush’s instructions, and hence, they comply. In the American political landscape, there have been profound changes in public opinion since September of 2001. But in the Beltway, among our political and media establishment, virtually nothing has changed.

I don’t have time this morning to dissect the various excesses and dangers of the new FISA amendments, though Marty Lederman and Steve Benen both do a typically thorough job in that regard. Suffice to say, craven fear, as usual, is the author of this debacle.

There are many mythologies about what are the defining beliefs and motivations of bloggers and their readers and the attendees at Yearly Kos. One of the principal myths is that it is all driven by a familiar and easily defined ideological agenda and/or a partisan attachment to the Democratic Party. That is all false.

The common, defining political principle here — what resonates far more powerfully than any other idea — is a fervent and passionate belief in our country’s constitutional framework, the core liberties it secures, and the checks and balances it offers as a safeguard against tyrannical power. Those who fail to defend that framework, or worse, those who are passively or actively complicit in its further erosion, are all equally culpable. With each day that passes, the radicalism and extremism originally spawned in secret by the Bush presidency becomes less and less his fault and more and more the fault of those who — having discovered what they have been doing and having been given the power to stop it — instead acquiesce to it and, worse, enable and endorse it.

Deputy Attorney General James Comey's testimony: George W. Bush "engage[d] in conduct that the Department of Justice had said had no legal basis"

SCHUMER: And why did you decide to resign?

COMEY: I believed that I couldn’t — I couldn’t stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis. I just simply couldn’t stay.

Via Truthdig, this video from YouTube shows former Deputy Attorney General James Comey's testimony to the U.S. Congress this week about this story (summarized on Wikipedia):

In early January 2006, the New York Times, as part of their investigation into alleged domestic surveillance by the National Security Agency, reported that Comey, who was Acting Attorney General during the March 2004 surgical hospitalization of John Ashcroft, refused to "certify" central aspects of the NSA program at that time. The certification was required under existing White House procedures to continue the program. After Comey's refusal, the newspaper reported, Andrew H. Card Jr., White House Chief of Staff, and Alberto R. Gonzales, then White House counsel and now Attorney General, made an emergency visit to the George Washington University Hospital, to attempt to win approval directly from Ashcroft for the program. Comey confirmed these events took place (but declined to confirm the specific program) in testimony to the Senate Judiciary Committee on 16 May 2007.

Comey also confirmed that Attorney General Ashcroft forcefully refused to certify the program and that the White House proceeded to go ahead with the program anyway, thus giving rise to what Comey described as "engag[ing] in conduct that the Department of Justice had said had no legal basis". He also testified that he, his chief of staff, Ashcroft, Ashcroft's chief of staff, and FBI director Robert Mueller all threatened to resign over President Bush's defiance of the law.

The transcript of Comey's testimony is at Think Progress.

This article from Slate has the story and its implications for the "unitary executive theory" -- in other words, the dictatorship our country has become in the endless war Bush claims we are engaged in:

Nixon Rides Again
It's only illegal when the president agrees it's illegal.
By Dahlia Lithwick
May 17, 2007

It took a day, but the newspapers finally caught up to the bloggers this morning in recognizing the real shocker in former Deputy Attorney General James Comey's dramatic congressional testimony Tuesday. It's not just the Grim Reaper tale of Alberto Gonzales and Andy Card double-teaming a critically ill John Ashcroft in his hospital bed. The real issue, as Orin Kerr, Glenn Greenwald, Marty Lederman, The Anonymous Liberal, and Paul Kiel started explaining Wednesday, is much bigger: The story isn't who picked on a sick guy or even who did or didn't break laws. The story is who gets to decide what's legal. And the president's now-familiar claim, a la Richard Nixon, is that it's never illegal when he does it.

We now know that in 2004 Gonzales and Andy Card raced to the hospital to try to get a very sick John Ashcroft to certify the legality of the president's secret NSA surveillance program—going over the head of Comey, the acting attorney general while Ashcroft was ill. When Ashcroft refused to override Comey, the White House reauthorized the program without DoJ certification. The question now is whether in so doing, the White House did something illegal, improper, neither, or both.

The Wall Street Journal today dismisses this story as a "full length docudrama." Quoting selectively from Arlen Specter's long colloquy with Comey, in which Comey conceded that "the Justice Department's certification ... was not [required] as far as I know," the Journal concludes that "nothing illegal was done, [Comey] was never threatened by White House officials, and the President told him to do what he felt was right." No laws broken. Nothing to see here, America. Move along.

But those of you who actually read the transcript know that Comey never conceded that DoJ certification of the classified program was legally unnecessary. He seems merely to have said that the administration may not have believed it was legally necessary. Indeed, when Specter asked whether "the certification by the Department of Justice as to legality was indispensable as a matter of law," Comey said he believed that it was. He said, twice, and most carefully, that while he was not a presidential scholar, there were those who argued "that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal." Comey added that he disagreed with that conclusion.

There is a normative legal argument about whether the president should need any permission to do anything in wartime. The bloggers above agree that this bare assertion—that the president's Article II powers allow him to do what needs doing—appears to be the basis for the work of John Yoo, the Office of Legal Counsel lawyer who laid much of the legal groundwork for torture and other forms of unchecked executive power before 2004. That may, in turn, have been the basis for the apparently rigorous re-evaluation of Yoo's legal work by the new head of OLC, Jack Goldsmith. (Disclosure: Goldsmith and I have co-authored here in Slate.)

But regardless of what the Journal claims, Comey was not this week endorsing the assertion that whatever the president says goes. He conceded that the attorney general's certification was not required by statute or by regulation, but it was "the practice in this particular [surveillance] program ... there was a signature line for that." And he added that the AG's certification had never yet been disregarded.

Specter hardly wrung from Comey the concession that the White House decision to reauthorize its NSA program over DoJ objections was "legal." What Comey did grant was the proposition that it could have been legal if you accepted that what the White House does is legal by definition. The administration's decision to push forward with the program anyway meant that Comey (and DoJ) had no role to play at all, and he found that untenable, if not expressly illegal.

It's impossible to draw neat lines around which elements of the mushrooming U.S. attorneys scandal violate the law and which are encompassed in Bush's larger worldview that life happens at the pleasure of the president. But these discussions raise the bigger question: How can the president ever break a law, so long as he insists he is the law? And how can the rest of us know if he's broken a law, if we've absolutely no idea what he's been doing?

The psychodrama in Ashcroft's hospital room boils down to a rift between the people at Justice (Ashcroft, Comey, and Goldsmith) who believed even the president can cross a line into lawless behavior and those who simply don't. Glenn Greenwald contends that "the President consciously and deliberately violated the law and committed multiple felonies by eavesdropping on Americans." The Wall Street Journal insists that no law was broken because the surveillance program put the president above the law. Greenwald believes in an immutable legal architecture that binds even the president. The White House contends the president answers to nobody. There is no midpoint between these two arguments. The president is either above the law or he isn't.

As it turns out, almost everyone who espoused the latter view has fled DoJ. The most underreported moment at Comey's hearing this week was not, as the Journal claims, the Comey-Specter colloquy, but Sen. Chuck Schumer's Freudian effort to swear Comey back into office when he was supposed to be administering an oath. As Ben Wittes puts it today, "the bad guys won."

But that's not quite right. The bad guys were winning for a while because they picked the teams, set the rules, sidelined the referees, and turned off all the lights in the stadium. Congress has some work to do. It needs to drill down on what this mystery eavesdropping program was (and which worse mystery eavesdropping program it replaced) and to get to the bottom of the Yoo memos and what else they've authorized. Let's call the Comey testimony the halftime show. With the refs in and the lights finally on, this might just prove to be an interesting game after all.

Dahlia Lithwick is a Slate senior editor.

Boy King Bush

This article from Znet goes over well-worn ground, but I think it makes the case that our country's system of government has become almost indistinguishable from a monarchy under Bush.

Boy King Bush
by Paul Street
ZNet
May 09, 2007

George W. Bush sure looked uncomfortable spending a day with the Queen of England. I find this ironic. It is richly appropriate that he be intimately linked in the public eye for at least one day to the English monarchy.

The core founding United States document The Declaration of Independence (DOI) was written in fierce defiance of the English crown, the British Empire, and the institution of absolute monarchy.

But the U.S. President Bush has been defying key DOI postulates in ways that the original “royal brute” (as Thomas Jefferson described the King George of 1776) would approve. He has invoked a modern version of the Divine Right of Kings by claiming to be above the law in enacting such policies as the wiretapping of U.S. citizens, extraordinary rendition, the denial of habeas corpus to “enemy combatants” and the torture of alleged terrorists and occupation resisters.

Boy-king George has only half-jokingly referred to the nation’s billionaires as his real “base” and to thinking it would be easier to rule through dictatorship than via “democracy,” which he falsely claims to promote within and beyond Iraq. He is a longstanding close friend of the monarchical rulers of the totalitarian and arch-reactionary state of Saudi Arabia. His administration sponsored and supported a military coup against the democratically elected president of Venezuela in April of 2002.

And while he just cringed through a royal day culminating in a nauseating and hyper-classist white-tie dinner that cost U.S. taxpayers untold tens if not hundreds of thousands (millions?) of dollars, more United States troops died in an illegal war that Bush strategized with top British officials while hiding his plans from the American people. People trying to deal with the aftermath of a devastating Kansas tornado were denied assistance from state National Guard units still diverted to Bush’s arch-criminal oil occupation of Mesopotamia.

In the leaked Downing Street Memo of 23 July 2002, it was revealed by top British military intelligence officials that English authorities learned something remarkable from Bush and his team. “Military action was now seen as inevitable,” the British discovered. “Bush wanted to remove Saddam through military action,” the Memo reads, “justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”

The cooked intelligence claims used to trick the American people into supporting the pre-ordained invasion of Iraq were being manufactured in advance by U.S. authorities. British rulers were let in on this terrible reality.

Things got positively weird between Team Bush and the rulers of England five months later. In a two-hour meeting with British Prime Minister Tony Blair that took place in the White House office on January 31, 2003, Bush discussed several ways to provoke a confrontation. One of the methods he proposed was to paint a U.S. surveillance plane in the colors of the United Nations in hopes of anti-aircraft fire that could be used to justify an invasion.

Formed in opposition to British rule and institutions, the DOI made history by saying that the consent of the governed was the only legitimate basis for a government and that the people had the right to replace an authoritarian government with more popular forms of rule. This is the well known right of revolution.

Just less than two hundred and twenty one years later, the rulers of the British state knew more about Bush’s foreign policy plans than “the Decider’s” own U.S. subjects as he prepared to undertake the thoroughly immoral and illegal invasion of petroleum-rich Iraq. Nearly two hundred and thirty one years later, after at least one stolen Bush election, the majority of those subjects oppose their authoritarian president’s recently escalated criminal war but lack confidence in their ability to do anything to stop it. After committing numerous offenses worthy of impeachment, removal, incarceration and worse, the messianic- militarist Bush continues to tell reporters and the public that his decisions on Iraq will be informed by his generals and “commanders on the ground” – unelected military authorities – and not by merely elected “politicians in Washington.” He exhibits special reverence for the title “Commander-in-Chief,” also suggesting a belief that military rule has supplanted civilian rule in his authoritarian mind.

Paul Street is a frequent ZNet contributor and the author of many articles, studies, speeches, chapters and books. He can be reached at paulstreet99@yahoo.com.