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Forget flag pins. Ask about assaults on the Constitution

COMMENTARY | September 03, 2008

Bush and Cheney grabbed more power than almost anyone could have imagined. After their excesses—unchecked by Congress—reporters and debate moderators need to ask tough questions to help determine Obama’s and McCain’s views and intentions. (First of two articles)

By John Hanrahan

“On January 20th, 2009, if George Bush and Dick Cheney are not appropriately held to account, this Administration will hand off a toolbox with more powers than any President has ever had, more powers than the founders could have imagined...But whoever gets it, one of the things we know about power is that people don’t give away the tools.” – John Nichols of The Nation, speaking on the “Bill Moyers Journal” on PBS, July 2007.

“No executive in the history of the Anglo-American world since the Civil War in England in the 17th century has laid claim to such broad power.. George Bush has exceeded the claims of Oliver Cromwell who anointed himself Lord Protector of England.” – David Adler, constitutional scholar and professor of political science at Idaho State University, Pocatello, comparing the powers of President Bush and King George III during a conference on “Presidential Power in America” at the Massachusetts School of Law, Andover, April 26, 2008.

“Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” – Benjamin Franklin

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Suppose that early in 2001 someone had described to you a government that did the following: tortured enemy combatants and suspected terrorists; claimed the drowning interrogation technique known as waterboarding used on prisoners was not torture; had a network of foreign and offshore secret prisons; sent prisoners to foreign countries for interrogation and likely torture; engaged in illegal warrantless monitoring of phone calls, email messages, and Internet activity; abridged the right of habeas corpus; kidnapped individuals in other countries and held them indefinitely without trial or public acknowledgment; built a wall to seal off its southern border; launched a preventive war and claimed the right to launch preventive or preemptive wars apparently anywhere in the world.

Further, this was a government that had a president who claimed the right to ignore or flout laws passed by the national legislature by issuing hundreds of “signing statements,” as well as to hold secret tribunals in which defendants could be denied access to key evidence against them. And this same president through his attorney general was pushing for even more powers by proposing to the national legislature a measure declaring the nation is involved in an apparently perpetual “armed conflict.” Under this proposal, the president would have power to declare anyone in any country, including the United States, a “terrorist” and (in the words of the American Civil Liberties Union) “hold the person forever – without ever charging anyone with a crime.”

Additionally, this was a government that authorized its agents, without warrants, to seize from travelers their laptop computers, cell phones and cameras at airport checkpoints and download data from these devices; to coordinate with local authorities to set up special so-called “free-speech zones” as the only authorized locations for political protest when the president or other government leaders come to a community; to snoop in your financial, travel and other personal transactions; to give grants to cities to purchase surveillance cameras and license plate readers to track every car entering a city; to establish airport “no-fly lists” that for secret reasons bar certain travelers from flying.  And on and on.

Back in early 2001, most Americans who follow events would have said such things do not happen here. Yet, in the seven years since the murderous attacks on the Twin Towers and the Pentagon, the United States government under President Bush and Vice President Cheney has claimed such extraordinary powers and engaged in exactly the sort of practices just described – and more. Sometimes Bush-Cheney have assumed these powers legally in cooperation with a compliant (some would say, spineless) Congress. More often they have done so covertly without knowledge of the Congress or the public in violation of the Constitution, or the laws of the land, or international agreements, such as the Geneva Conventions, to which the United States is a party and which have the force of law.

Frederick A.O. Schwarz Jr., chief counsel for the Church Committee which in the 1970s investigated abuses by the FBI, CIA and NSA, and his co-author Aziz Z. Huq, explored the panoply of Bush administration abuses and Congress’s fail to deal with them in their 2007 book, “Unchecked and Unbalanced: Presidential Power in a Time of Terror.” They wrote:

“Torture policy, extraordinary rendition, warrantless domestic spying, indefinite presidential lockup: the executive branch developed all of these tactics without Congress’s knowledge and with total disregard for statutory prohibitions.”

Conservative constitutional scholar Bruce Fein, who favors impeachment of Bush and Cheney, has likewise observed that the nation’s founders “expected an executive who tried to overreach and expected the executive would be hampered and curtailed by the legislative branch...They [Congress] have basically renounced – walked away from their responsibility to oversee and check.” If the powers claimed by the Bush administration are not reined in, Fein warned, they "will lie around like loaded weapons anytime there's another 9/11."

This failure by Congress to oversee and check the executive branch has left the Bush administration relatively free to pursue what Schwarz has labeled Cheney’s “monarchical executive theory.” Retired Army Colonel Andrew Bacevich, a self described conservative who opposes the Iraq war and who teaches history and international relations at Boston University, put it this way on the August 15, 2008  “Bill Moyers Journal”: “The Congress, especially with regard to matters related to national security policy, has thrust power and authority to the executive branch. We have created an imperial presidency...”

Wouldn’t you like to know where the presidential candidates stand on this “toolbox” of powers that the Bush/Cheney administration has claimed and will be passing on to the next president?  Do the candidates think having such powers in the presidency are needed and justified? Have we as a nation, in the words of that old aphorist and patriot Ben Franklin, been frightened into giving up “essential liberty to purchase a little temporary safety?” And, if so, when if ever will we get back that lost liberty if we are, in fact, fighting a global, Orwellian-named “war on terror?” A war that, by definition, cannot end until members of every violent faction our national leaders label terrorist has been killed, imprisoned or otherwise brought to heel?

With impeachment having been “taken off the table” by Democratic House Speaker Nancy Pelosi in early 2007 and with only a few (ignored or underreported) Congressional hearings on Bush administration abuses, where are our nation’s vaunted “checks and balances” and separation of powers in this age of nervousness and fear? Has Congress effectively surrendered to the “imperial presidency?” How much would the candidates “compromise” on civil liberties – as Barack Obama did when he first stood against, and then later voted for, a Foreign Intelligence Surveillance Act (FISA) measure that granted immunity to telecommunications companies for illegally cooperating with the government on warrantless wiretaps? Or as John McCain did when he stood against the use of torture by U.S. military forces, but then refused to support legislation to prevent the CIA from torturing?

And with impeachment (the Constitutional remedy for presidential abuses) ruled out, what remedies – if any – do the candidates think should be taken to assure that one of Bush’s successors doesn’t claim these same unchecked powers? After all, can’t a future president contend that since most of Bush’s exercises of power (and other claims to powers apparently not yet exercised), have gone largely unchallenged by Congress, these powers are, therefore, legitimate for him or her to use?

In a functioning democracy with constitutionally guaranteed freedom of the press, shouldn’t we expect that the mainstream media would zero in on assaults on the Constitution as a major campaign issue? Is it too much to expect that campaign reporters and debate moderators would put to Obama and McCain some tough questions about presidential power? Perhaps they could use as a model the 12 detailed, well-formulated questions Pulitzer Prize-winning reporter Charlie Savage submitted to all the Republican and Democratic candidates last December. Savage reported the results in an impressive series of articles in the Boston Globe and on boston.com. Unfortunately, the Boston Globe does not have a nationwide impact, so Savage’s articles didn’t get the attention they deserved. (Here are the links to McCain’s answers to Savage’s questions, and here are the links to Obama’s.)  

The press and debate moderators owe us more than horse-race coverage of the campaigns and excessive print space and air time wasted on frivolities such as flag lapel pins. If we really believe in James Madison and George Mason and other heroes of the Bill of Rights (none of whom wore flag lapel pins), maybe we could have a serious campaign discussion of the future of American democracy and of real patriotism instead of the bumper sticker and refrigerator magnet variety we have had to endure so far.

Pro Publica on the case
Posted by Barry Sussman, editor, Nieman Watchdog
09/10/2008, 10:18 AM

We saw Mr. Hanrahan's excellent commentary on executive power and Mr. Foser's Media Matters post about it [http://mediamatters.org/countyfair/200809080014] and we wanted to write to you to let you know that other outlets are indeed paying attention. While we're not a mainstream media site (at least not yet!), just before Independence Day we posted a piece that compared their statements about executive power
side by side. And in the setup/introduction for the
piece, we noted the work of other media outlets on this particular topic. It was part of our "Where They Stand"
series and we hope to do more before the election.

Just wanted to give you a heads up that some outlets are covering this
very important issue.

Best regards,
Mike Webb, Scott Klein & Eric Umansky

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