Original Content at http://www.opednews.com/articles/opedne_liza_per_080228_the_silent_coup___ho.htm
|February 28, 2008
The Silent Coup – How a nation ruled by law, becomes a nation ruled by men
By Liza Persson
The Silent Coup
“We are living in an era of extraordinary expansion of executive authority….”
“[the Adminstration] asserted a broad doctrine of presidential “inherent authority” to ignore the laws passed by Congress when prosecuting the war on terror. In other words, the rule of law is suspended, and the President is above the law, for the uncertain and no doubt lengthy duration of the undefined war on terror”
“If Congress doesn’t have the power to define the contours of the President’s Article II powers through legislation…//…If the President’s legal theory, which is shared by some of our witnesses today, is correct…//…Under this theory, we no longer have a constitutional system consisting of three co-equal branches of government, we have a monarchy”
“It is our duty as loyal Americans to shut up once the fighting begins. Once the war against Saddam begins,we expect every American to support our military, and if they can’t do that is to shut up”
There is a battle far from getting the attention it deserves considering the stakes – the rule and governing of the USA.
You would only notice with great difficulty and after spending a lot of time viewing hearing in various congressional committees, picking up a piece here and another there, and painstakingly putting them into a historical context in a far from obvious manner.
At the center is the question of presidential power vis-à-vis the congress, a group of embittered individuals set on making right what they consider a violation of the constitution. .
When many Americans saw a restoration of balance of power when Congress went after and eventually reined in the Executive Branch in the Iran-Contra Affair, others saw an unconstitutional and deeply offensive act of neutering. The same people saw the same unconstitutional usurpation of executive powers when, following the Vietnam War, laws were passed and investigations were launched attempting to explore and rein in what was seen as abuses of the executive branch’s wartime powers (e.g Church Committee, Pike Committee, War Powers Act ).
Such an interpretations of congressional actions during this period, has been voiced by Robert F Turner – co-founder of the Center for National Security Law at the University of Virginia School of Law who served as counsel to the President’s Intelligence Oversight Board, 1982-84.
“My conclusion is the President has broken no constitutional law, but Congress in the wake of Vietnam broke many, with terrible consequences. I strongly recommend that the Committee rewrite the resolution to censure the post-Vietnam Congress which violated its oath of office of its members, undermined our security and contributed directly to the consignment to communist tyranny in Indochina of tens of millions of people we had promised to defend and to the slaughter of millions of others” One of them was Dick Cheney and the man who would become his legal advisor, David Addington.
Throughout his history in politics, Dick Cheney had been and open advocate of what is known as “Unitary Executive” and the particular interpretation of the US Constitution – specifically Article II – that it is pinned on.
During the Iran-contra hearings, Addington was heavily involved in arguing that Congress was improperly tying the hands of the president by preventing him from helping Nicaragua’s contras.
Addington, 47, was a lawyer and GOP staffer on congressional committees on intelligence and the Iran-contra matter, before Cheney chose him to serve as general counsel at the Pentagon when Cheney was defense secretary. Addington is now chief of staff to Vice President Cheney as he was appointed to replace Lewis “Scooter” Libby as Cheney’s chief of staff upon Libby’s resignation on October 28, 2005.
Ever since he became Legal Counsel to Vice President Cheney – Cheney’s legal advisor – Addington picked fights over a multitude of small and large issues to push the lines of presidential authority forward and the right of congress to have oversight and access to information backwards. He led the fight with Congress and environmentalists over access to information about corporations that advised the White House on energy policy. He was instrumental in the series of fights with the Sept. 11 commission and its requests for information. And he was a main backer of the nomination of Pentagon lawyer William J. Haynes II for a seat on the U.S. Court of Appeals for the 4th Circuit. Haynes’s confirmation became a source of huge friction on Capitol Hill, and after protests from military officers, civil rights groups and others he withdrew his nomination. Addington was also principal author of the White House memo justifying torture of terrorism suspects and a prime advocate of arguments supporting the holding of terrorism suspects without access to courts.
Cheney and Addington, are arguing that they were defending and reclaiming executive authority, but others argue that they have actually pushed it to new levels. John W. Dean – Former White House Counsel to President Richard Nixon – testified before the Senate Judiciary Committee hearing on Senator Feingold’s proposed senate resolution to censure President George W. Bush
“No presidency that I can find in history has adopted a policy of expanding presidential powers merely for the sake of expanding presidential powers. Presidents in the past who have expanded their powers have done so when pursuing policy objectives. It has been the announced policy of the Bush/Cheney presidency, however, from its outset, to expand presidential power for its own sake, and it continually searched for avenues to do just that, while constantly testing to see how far it can push the limits”
Cheney and Addington became – whether through long-term strategic planning and conspiracy or coincidence- the men who would form the main brain of the battle to rollback this congressional advancement into the executive’s territory. By the time 9/11 happened they had been the mainspring-putting people throughout the government who were working away at making sure that the US political system was wired in the most favorable way.
By the time of 9/11, they had gathered high-skilled and politically experienced like-minded lawyers. With the 2000 election they manned both the Senate and the House of Representatives with republican majority.
I do not argue that this interpretation of the power of the Presidency is inherently Republican, or even conservative. Republican Senators and Representatives did not necessarily agree but with the White House occupied with Republicans of this particular view point it would have become a matter of breaking party lines, and risking the incumbency, for republican senators and representatives to cross their path. This became especially true when, following the attacks on 9/11, the support for the President became conflated with being patriotic and “with us” in an unforgiving dichotomy that allowed no one to be neutral.
So – they had the House and the Senate and the White House.
In the Justice Department a staff of lawyers provided the magic of finding ways of interpreting the law in the favor of their clients.
Anyone having had to settle something like a divorce in court, or even outside court, knows the way the quality of the lawyer can determine the outcome. The 2000 election brought into power the people who felt that presidential power illegally and unconstitutionally had been usurped by Congress, and throughout their time of waiting for the perfect moment they had gathered around them lawyers experienced in both law AND politics, with personal and professional contacts to make use of in the right circles.
To just take what one wants is theft, the trick was to grab power from the congress to the executive branch and get away with it. The role of all these hand picked lawyers was to make sure that although laws might have to be stretched, and at times interpreted in very creative and novel ways, it would all be legal.
If changes could be accomplished without breaking any laws, then it would be nearly impossible for the opposing party – especially when that party was in minority – to stop or repeal any actions. Furthermore – novel interpretations and pushing of laws would not change the fact that any actions not stopped would become precedents and make that much easier acting in the same way in the future.
More than just push and use the laws already in place, with the legislative branch new laws could be passed in favor of restoring and maintaining power inequality in the presidency’s favor.
Relying on the law of inertia – prevalent in bureaucracies – it would be very unlikely that a change in majority – regardless of branch – would result in any repealing of these changes.
These two methods – passing new laws and setting precedents for what the executive branch could do and how laws could be interpreted – made gradual changes to the rules of the political game with the quality to last beyond any change in regime.
All this had to be done with utmost secrecy.
Not so much because the men with the plan feared the US public. With the compliance of the majority of the representatives and senators it was very unlikely that anyone would ever make it an enough heated issue to generate any significant amount of public attention and emotion.
It was simply not something suitable to make a run for office on.
It was also not the kind of stuff that would make the corporate media interested. It would require expensive and extensive research and writing to make much sense and even then it would not be the stuff of selling headlines.
Instead, the people needed to keep in the dark was individuals working within the executive branch and its’ agencies who did not have the political and ideological perceptions that would make them agree well with what was underway and had the capacity to put the pieces together.
This fear was well founded. These people turned out to be the ones that would blow the whistle, leak information, and drop hints.
However, that would not happen for some time.
No matter how many gradual changes were made, however, it was with 9/11 that the prefect storm occurred.
“Of all the enemies to public liberty war is, perhaps, the most to be dreaded because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes. And armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”
Regardless of constitutional interpretation and opinion about the relationship between the branches of the US government, it is clear that when the nation is at war, the executive power has more free reins than at any other time. Foreign policy is primarily the domain of the executive branch, and during military aggression and defense against external forces foreign policy has a tendency to take precedence over other areas of national governing. It becomes hard to challenge any requests or decisions that can be motivated by the defense of the nation, especially when there is a clear and stated intention to view all such challenges – and any questioning – as unpatriotic and as siding with the enemy.
It is almost par of the course to find that during war, things that would otherwise be hard to view as part of the defense of the nation, are claimed by the executive branch – and its’ congressional supporters – as things related to foreign policy and necessary to win the war.
As the primary recipient of information and intelligence regarding what happens around the world, and about the own military’s activities abroad, the executive branch become hard to challenge. By claiming that it is acting upon information only it has access to, those heading the executive branch can ask people to take their word that what they claim they have to do is vital to the survival of the nation.
Whether the hijacked planes, and the death and damage they were utilized for, were the result of insider omission or commission on the side of the US government – one thing is certain.
9/11 became the name of a tidal wave that would provide the force needed for the people in the White House and Congress who had worked to carve out more room for presidential supremacy. The haste and emotional fervor, and the war time powers of the president, would make it possible to move more aggressively than what had been possible before. Claiming that national security was at stake, legislation could be rushed through without even what little challenging a minority opposition could have mustered
Walls set by law and conventions were deconstructed to facilitate more unity among agencies within the executive branch, not in itself necessarily a bad thing and certainly understandable in light of what seemed to be the massive failures in intelligence sharing and communication leading up to the 9/11.
The executive branch and all its components would emerge more streamlined and unified in its responses to the commands of the President.
It seems that this was a step towards obtaining the optimum of a unitary executive implementation – an executive branch virtually a closed community and ultimately responsible only onto itself and containing within itself oversight, decision-making, execution and accountability.
The nature of the designated enemy in ensuing war was entirely up to the executive branch to describe to the people – as only it had full access to intelligence reports.
The enemy turned out to be eternal, without borders, willing and able to use all aspects of social life for its motives – economy, information, communication, transportation, military. The same, as it became clear, was true of the war – and thus of the powers of the presidency according to the men with the plan for a unitary executive.
There can be no doubt when looking at the behavior of decisions made and behavior of the President and his staff following the declaration of “war on terror”, that all efforts made to expand the powers of the executive branch, and the supreme control of the President over that branch and those powers, intensified.
There is little doubt, as well, that these efforts had been underway and planned for some time before 9/11 as unveiled plans have shown.
With time and public outcry over what was seen as clear failures of the government in general and the administration in particular, it became more difficult to push and make creative interpretations of the law without getting unwanted attention and push back. Popular opinion and anger set a path for Democrats to reclaim political voice and seats, and whether they were pushed to it or always had been wanting to many of them began challenging and questioning decisions and actions taken by the administration under the auspices of national security.
One of the aspects of this systematic and planned attempt at extending the power of the executive was the matter of what was often referred to as the “Warrantless Wiretapping”.
President Bush, in 2001, secretly set up several secret programs – many of them still secret – that involved gathering of information and communication between people both within and outside USA, Americans and foreigners.
One program that was leaked was his so-called Terrorist Surveillance Program to wiretap. But it included Americans, which would require a warrant from the Foreign Surveillance Court – a designated body with the exclusive authority to review and approve of reasons for intercepting communication where one or more parties are located inside the USA. A violation of FISA is a felony and each violation can result in five years in prison. Even though all this was revealed by then, Congress approved of a much broader program by the passing of the Protect America Act than even the Terrorist Surveillance Program. In practice they not only legalized what Bush was doing before, but made it very unlikely that the Bush administration officials will be brought to justice for what seemed obvious felonies that they had been committing since 2001.
This all occurred even though in August 2007 Congress had a majority of Democrats in both houses.
On August 06 2007 Independent media broadcast Democracy Now featured Glenn Greenwald, political – legal blogger for Salon.com, who is also a constitutional attorney, and Marjorie Cohn, professor at Thomas Jefferson School of Law and president of the National Lawyers Guild.
They engaged with the host Amy Goodman in a discussion of both the recently passed Protect America Act and the Democrats failure to pursue the Bush administrations programs violating FISA by wiretapping Americans without warrant.
During the course of the show, however, Greenwald touched upon a much more sinister and, still, unexplored context of which the secret program of warrantless wiretapping was only a small fraction.
“This week, this last week, it was just revealed, in order to defend Alberto Gonzales, that when the President ordered the NSA program back in 2001, he did so as part of an executive order of which warrantless eavesdropping was but one of numerous covert spying programs aimed at Americans, the content of which we still do not know. And two months earlier, James Comey [former Depute Attorney General of USA] testified before the Senate that he and Ashcroft [former Attorney General of USA] and others had discovered that whatever it was that they were doing from 2001 to 2004 was so illegal, so unconscionable, that they had all decided to resign en masse from the government unless that behavior ceased immediately.
The other interviewee, Mrs. Cohn, filled in with more about the fuller scope of this secret program of information collection:
“…what came out is that the government admitted for the first time that what they were talking about was not really this Terrorist Surveillance Program, but rather data mining. And this is the first time that the administration has actually admitted that they are doing this data mining, which the USA Today leaked. The data mining intercepts millions and millions of phone calls and email communications to track what the patterns are, but experts inside the administration say that, in fact, they also have access to the content of the communication. So we have no idea, and Congress probably doesn’t either, of the scope of all of these so-called intelligence activities, which, by all accounts, are not making us any safer”.
There were many oversight hearings into the Justice Departments actions and intentions when it had been revealed that the President had conducted wiretapping outside legal regulations and without formal congressional approval or process. The same department also found itself being questioned about the dismissal of several US attorneys, and whether improper reasons had played into the decision to replace them. At the center was US Attorney General – basically chief legal council to the President – Alberto Gonzales, head of the Justice Department. It was easy for those who followed these hearings to get the impression that Gonzales did not do a very good job during these sessions. He mainly claimed he could not recall, or he could not say due to classified information and ongoing investigation or some other reason.
However, as an article in Slate Magazine reflected:
“…it occurs to me that when I find myself in enthusiastic agreement …//…that Alberto Gonzales disgraced himself yesterday, I may have missed something important. Assuming the president watched so much as 10 minutes of his attorney general being pole axed by even rudimentary questions from the Senate judiciary committee, it strains credulity to believe that Gonzales still has Bush’s “full confidence.”
Until you stop to consider that the president wasn’t watching the same movie as the rest of us and that Gonzales wasn’t reading from the same script. Perhaps what we witnessed yesterday was in fact a tour de force, a home run for the president’s overarching theory of the unitary executive.
The theory of the unitary executive is a radical vision of executive power in which the president is the big boss of the entire executive branch and has final say over everything that happens within it. At its core, the theory holds that Congress has very limited authority to divest the president of those powers. An expanded version of this theory was the legal predicate for the torture memo: “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas. … Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.””
It was largely thanks to personal consciousness and responsibility of individuals within the agencies of the executive branch, that information about some aspects of this massive push for practical implementation of the unitary executive theory escaped the stranglehold of secrecy.
These were precisely the same people that the strategists for the implementation of the unitary executive theory had felt the need to be kept in dark for fear that they might do precisely what they actually did.
People inside the administration that felt that there were attacks on the Constitution and violations of both the law and their own sense of right and wrong, ordered by the White House. We are all in debt to the courage of these people.
The divide between corporate owned media and independent media became practically significant in the dealing with these leaked pieces of an overall pattern. It was mainly in the independent media that dots were connected to point to something larger than just separate incidences of presidential overreach.
Sadly this was also true for the response from the Democrat opposition – even though they regained majority in both houses of congress in November 2006.
There was far too soon a willingness to focus on how to amend the Foreign Surveillance Act, rather than deal with the outright and obvious violations of it that had been taking place in secret on the President’s order for several years. There has yet to be either a serious attempt at investigating and pursuing possible criminal charges, nor has there been much investigation into the full scope of the violations – even when it became clear that there was much more that had been done without congressional approval and judicial allowance as more information was leaked and dug up.
The firing of attorneys, warrantless surveillance, the use of questionable interrogation techniques and the extensive use of “signing statements” and “executive privilege” to wriggle the executive branch out of the oversight and will of the legislative branch – these were some of the issues which were placed – largely by Democrats – on the political agenda of hearings and debates.
However, what was rarely addressed was that all these “oversteps” of the administration was attempts of pushing the limits, to – if successful – increase the room of presidential authority and control.
Nor were they rebutted the way necessary to ensure that the legislative branch did not loose power to the executive. There was too much willingness to see it all as the result of bad legal advise, and they either couldn’t or wouldn’t go to the same lengths to force compliance with subpoenas, accountability or oversight that their Republican colleagues, the President and his staff has used to further their political objectives.
It is true that some laws were amended and bills were passed after the Democratic took back both Houses, to fill some of the dangerous loopholes in the wording that allowed for far too much unaccountability and far too little insight.
As already discussed, part of the strategy to change the political rules of the governing of USA was to aggressively push existing laws and interpretations of what was legal. By getting away with it, new precedents would be set that basically would mean a victory for the unitary executive camp.
It is always something to expect that in some cases there would be some resistance, and even complete failures. But what mattered was that overall the Bush administration would end with a net win for the home team.
If even aspects of this push for power that did end up in congressional debates and hearings largely is yet to be fully pursued, more subtle aspects went basically without any notice although there were exceptions – mainly individuals within media and congress.
Although it has not been pushed that far yet, there have been some changes made to the highest judicial authority, which could prove beneficial to the preservation of the gains, made for the unitary executive camp.
The Bush administration would come to nominate two Justices to the Supreme Court between 2000 and 2008 – Justice Samuel Alito in 2006 and Chief Justice John Roberts in 2005. During the confirmation hearings in 2005 for Samuel Alito – many questions aimed at probing Alito’s ideas on the power of the executive vis-a-vi the legislative branch. Senate Judiciary ranking member Patrick Leahy voted against Alito’s nomination to the Supreme Court because he believed the nominee would not be a check on presidential power. Alito was ultimately confirmed with all but one republicans voting for him while nearly all the Democrat minority’s Senators voted against him – many explicitly stating reasons along the same line as Leahy. All Republican Senators eventually approved Chief Justice Roberts while the Democrat Senators split in half. Democrat Senator Edward Kennedy, who voted against the nomination, later wrote an op-ed stating that both Robert and Alito had proven his misgivings right: “they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law”.
Another subtle shift is how presidential signing statements went from being mere rhetoric posturing and policy expressions from the President to possibly having legal impact.
Washington Post published an article 2 January 2006 concerning this, and the role played by one of the Bush appointees for the Supreme Court – Supreme Court Justice Samuel Alito:
“As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch….//… In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy [which] laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law…//… The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”
It was clear also that Alito was well aware of the increase in presidential power it would mean should his strategy succeed. He also anticipated that the Congress might have objections to it should they become aware of what was underway. Washington Post quotes Alito’s memo:
“The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction,” he wrote. “In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.”
It needs to be restated that what I have referred to, as the “unitary executive camp” is not a matter of political parties although it might seem that way. Ultimately it is one way of interpreting a document that is superior to party politics and ideologies affecting the governing of the USA. That is why it is important to look beyond party affiliation and focus on how individuals with political power – whether through political office, financial means or being an influential think-tank or advisor – interpret the US Constitution.
The constitution is not a document that means the same to everyone; it is a text that needs interpretation.
While everyone elected to political office in USA swears to protect and uphold the constitution, few people ask hard questions about just WHAT it is they interpret the constitution to mean.
It is important to recognize that there are legitimate reasons to make the President and the executive branch the primary managers of foreign intelligence and relations, especially during war. Among these reasons are speed and consistency when responding to threats to the nation. In comparison with a body like the Congress – based on discussion, debate, compromising and diversity – the unitary nature of the executive branch, with its centralized leadership, can be argued as a better choice.
The main thrust of this article, however, is not to dispute that the president should have inherent authority over certain matters. The point is that there is a need to bring to the front of public discourse and awareness that there is a battle being waged and that there are people who has planned for long to change the political and legal landscape of the USA in accordance with their theory of the intentions of the Founding Fathers and the right way to interpret the constitution.
As it stands now, it is questionable whether this presidency won’t prove to have been a major success for those willing to make the USA a nation ruled more by men than by laws.
US Senator Patrick Leahy (Democrat Vermont):
The Congress is the branch most sensitive and receptive to the will of the people. Unlike the executive branch elections are held continuously rather than every fourth year, putting pressure on Senators and Representatives not to stray to far away from their constituency and use their constitutional responsibility to guard against abuses of power.
The Founding Fathers knew that unless political power was distributed between co-equal branches that could check and balance one another, a small group of people could grab a disproportional amount of it. By expanding the power of the executive branch, on account of the legislative, it will become so much easier to win control of a people and its’ resources as there is only one seat that matters – and only every fourth year, unless those rules change too. Whatever powers, groups or interests one fears is intent on ruling the world would certainly like that kind of opportunity.
Increasing the power of the presidency means much more than just a certain interpretation of the constitution or that the legislative branch lose power.
Ultimately it means that the American people lose power.
Testimony of the Honorable Mickey Edwards
A former member of Congress from the State of Oklahoma and The Aspen Institute.
“….there is a view of the Presidency articulated by the current
President, which considers the executive branch to be a single
unit under the sole direction of the President, and according to this
theory of the unitary Executive, the legislative branch of Government
may not instruct executive branch agencies in the performance
of their duties…//… The Congress, you all, may require a Federal agency to report on some matter, but at best that requirement simply becomes a suggestion and probably one that will not be taken too seriously….//…any Presidential assertion of the right to ignore the law must be challenged or it will become precedent.
…//…I may not agree with the policies of the next
President. And future Presidents can rely on that unchallenged assertion
to disobey future laws; and if that happens, the Congress
of the United States will become irrelevant and the basic structure
of American Government will have been fundamentally changed.
The voice of the people, as expressed by their Representatives in
Congress, will have been considerably diminished”
Sources not linked to in the article body:
· Cheney’s Law PBS Documentary
· Wikipedia: unitary executive theory
· House Judicial Committee Hearing on Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights
· House Judicial Committee Hearing on Presidential Signing Statements under the Bush Administration
· Presidential Power in America: Post 9/11 Google Video
· Presidential Power in America: What the Founders Did Not Plan For Google Video
· House Subcommittee on the Constitution, Civil Rights, and Civil Liberties
· Slate Magazine Gonzo for GonzoMaybe Alberto Gonzales was brilliant yesterday—and everybody missed it. By Dahlia Lithwick
· Common Dreams NewsCenter Alito – It’s the Constitution That’s At Stake
· The New York Times Presidential Signing Statements, and Alito’s Role in Them, Are Questioned
· Washington Post In Cheney’s Shadow, Counsel Pushes the Conservative Cause
and many, many more congressional hearings…
Authors Bio: I am a Political and Behavioral Scientist with Psychology as my main subject and people as my main interest. As thoughts are the source of all human accomplishment I hope to be part of the exchange of them Also see: http://wildwickedwonderfulupfront.blogspot.com/