I‘ll say this for Vice President Dick Cheney: he puts it right out there, whether it is trying to ensure legal protection for those torturing prisoners, or insisting – as he did on Tuesday – that a wartime president "needs to have his powers unimpaired."
Supporters of this view are dredging up quotes from former officials like George H.W. Bush’s attorney general, William Barr, who, according to the Washington Post, contends:
"The Constitution’s intent when we’re under attack from outside is to place maximum power in the president, and the other branches – and especially the courts – don’t act as a check on the president’s authority against the enemy."
So there we have it: the Bush administration’s contention that the president’s power as commander in chief during wartime puts him above the law. Bush may bristle, as he did Monday, at a question from the press about "unchecked power," but that is plain English for it. Whether authorizing torture or wiretaps, he reserves the right to act irrespective of domestic or international law.
The question is whether Congress and the courts will acquiesce in this usurpation of their own powers, or whether there are still enough men and women in those branches of government determined to honor their oath to defend the Constitution of the United States "from all enemies, foreign and domestic."
Some hope can be seen in a recent remark by Republican Sen. Chuck Hagel, who told reporters:
"I took an oath of office to the Constitution. I didn’t take an oath of office to my party or to my president."
Two and a half years ago, when former ambassador Joseph Wilson exposed the president’s misstatement about Iraq seeking uranium in Africa, all the president’s men and the woman were in high dudgeon over Wilson’s op-ed exposé in the New York Times. What infuriated them the most, I am convinced, was Wilson’s pointed remark to Washington Post reporters that the Iraq-Africa-uranium canard "begs the question regarding what else they are lying about." Quite a lot, we are finding out.
Other Abuses?
We need to ask a similar question. What undermining of our Constitution may be going on below the surface elsewhere in the intelligence community besides unwarranted eavesdropping on U.S. citizens? Under last year’s intelligence-reform legislation, Director of National Intelligence John Negroponte has under his aegis not only the entire CIA but also a major part of the FBI. Under existing law, the CIA has no police powers, and its operatives are generally enjoined against collecting intelligence information on American citizens.
Since citizens’ constitutional protections do not sit atop the list of CIA priorities and its focus is abroad, it pays those protections little heed. In contrast, FBI personnel, for judicial and other reasons, are trained to observe those protections scrupulously and to avoid going beyond what the law permits. That accounts, in part, for why FBI agents at the Guantanamo detention facility judged it necessary to report the abuses they witnessed. Would they have acted so responsibly had they been part of a wider, more disparate environment in which the strict guidelines reflecting the FBI’s ethos were not universally observed?
It is an important question. In my view, the need to protect the civil liberties of American citizens must trump other exigencies when rights embedded in the Constitution are at risk. The reorganization dictated by the intelligence reform legislation cannot be permitted to blur or erode constitutional protections. That would be too high a price to pay for hoped-for efficiencies of integration and scale.
Rather, there is a continuing need for checks and balances and – especially in law enforcement – clear lines of demarcation within the executive branch as well as outside it. Unfortunately, the structure and functions of the "oversight board" created by the intelligence legislation make a mockery of the 9/11 Commission’s insistence that an independent body be established to prevent infringement on civil liberties. Sadly, the Privacy and Civil Liberties Oversight Board created by the new law has been gutted to such a degree that it has become little more than a powerless creature of the president.
This concern over endangering civil liberties is fact-based. In discussing it we are not in the subjunctive mood. No one seemed to notice, but on June 16, 2004, when current CIA director Porter Goss was chairman of the House Intelligence Committee, he actually introduced legislation that would have given the president new authority to direct the CIA to conduct law-enforcement operations inside the United States – including arresting American citizens. This legislation would have reversed the strict prohibition in the National Security Act of 1947 against such CIA activities. Thankfully, Goss’ initiative got swamped by other legislation in the wake of the 9/11 Commission report.
Hearings
I suspect that recent revelations about arguably illegal eavesdropping hardly scratch the surface. The point is that unless Congress receives a quick injection of courage and steps up to its oversight responsibility under the Constitution, many abuses are likely to continue undetected.
Will enough Republican senators honor their oath to defend the Constitution? Our system of checks and balances hangs in the balance, so to speak. The president has thrown down the gauntlet by declaring he will continue to authorize unilaterally eavesdropping that, by law, requires a court order. Will senators pick up the gauntlet, or are they more likely to let it lie until early next year when this constitutional crisis, important as it is, may be eclipsed by fresh revelations of other abuses of power?
Is it fair to pin so much responsibility on Republican senators? No, it’s not fair. But that is the way it is. One looks in vain to the other side of the aisle for the courage that the times require. But what about Democrat senators – the gutsy Russ Feingold and the eloquent Robert Byrd? However courageous, they are not well-positioned to affect the outcome of this constitutional crisis.
Rather, the Democratic Party has slender reeds to lean on – take Sen. Jay Rockefeller, for example. Briefed on the illegal eavesdropping program, Rockefeller let Cheney intimidate him into silence. Sure, the congressman wrote a letter to Cheney (and kept a CYA copy, which he has now given the press). But when he got no answer, did it not occur to the ranking minority member of the Senate Intelligence Committee to ask to speak to Cheney’s supervisor?
On Tuesday, Senate Intelligence Committee chair Pat Roberts ridiculed Rockefeller for "feigning helplessness." Roberts is certainly in position to know, since Rockefeller has made helplessness a career, and thus made Roberts’ task easy. Sen. Rockefeller’s obeisance to the chair is matched only by U.S. Marine Roberts’ "Semper Fi" to the party and the president. This is important, since the White House has already succeeded in ensuring that Roberts and Rockefeller will play leadership roles in any Senate investigation of the eavesdropping.
Initially, it appeared that since constitutional and legal considerations prevail on this issue, the hearings would be orchestrated and led by Senate Judiciary Committee chair Arlen Specter, who immediately expressed deep concern at the revelations about eavesdropping. That was a hopeful sign, even though the ranking Democrat on Judiciary, Patrick Leahy, fits the Rockefeller mold – as evidenced by Leahy’s vote for arch-defender of unbridled presidential power Roberto Gonzales to be attorney general.
From Republic to Empire
Let’s hope history does not repeat itself. The constitution of ancient Rome was put in place in 510 B.C., when the republicans overthrew the last of the Roman kings, Tarquin the Proud. As was the case 2,300 years later in the newborn USA, the introduction of constitutional order meant the rule of law and not of kings, providing liberty under law for every Roman citizen. That experiment lasted almost five centuries, until the Roman senators fell down on the job.
Although Cicero warned, with pointed eloquence, of the dangers to the Republic, in the end his warnings proved no match for strongmen like Julius Caesar and Gnaeus Pompey. They wrapped themselves in republican virtue when it suited them, but they lacked any serious belief in the fundamental principles that had formed republican Rome. They and their followers believed in themselves, and in their own vision of what Rome should be, and in little else. Plutarch tells us that the increasingly glaring unequal distribution of wealth served to make the situation exceedingly volatile. Sound familiar?
And so the Republic died, and Cicero died with it, his severed head and hands nailed to the "rostra," the platform in the forum from which he had warned the Roman people. The vision of the strongmen led first to civil war and then to empire.
Republican senators, don’t let it happen here.
A shorter version of this article appeared on Truthout.com.
