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The U.S. Constitution, at the Rotunda of the National Archives in Washington (2003 AP photo)

How deep is the candidates’ faith in the Constitution?

COMMENTARY | September 04, 2008

John Hanrahan writes that the moderators in the presidential debates need to ask a question like this one, first posed by reporter Charlie Savage: “Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you simply think is a bad idea?” And they need to follow up so that the candidates answer it. (Second of two articles)

By John Hanrahan

After megachurch pastor Rick Warren’s August 16 forum with John McCain and Barack Obama, we know where the two major presidential candidates stand on religious faith issues. But from the presidential debates in 2007-early 2008 and the day-to-day campaign coverage in the mainstream print and broadcast media, do we have any clear impression of where the candidates stand on another faith issue that goes to the heart of what this nation claims to stand for – faith in our Constitution?

How deep is their faith in the Bill of Rights and the separation of powers? How concerned are they over the numerous abuses of power by President Bush and Vice President Cheney, and over the decline in congressional oversight of the Executive Branch and the concomitant growth of the “imperial presidency’” since the start of the Bush-Cheney “war on terror” seven years ago?

Thus far, the mainstream press has told us virtually nothing in their day-to-day coverage of the campaign about where Obama and McCain stand on what both many conservative and liberal scholars have identified as the threat to civil liberties posed by excessive presidential powers. Moderators of the 2007-early 2008 debates were likewise negligent in asking about these issues. And the candidates themselves appear to steer clear of any serious discussion of presidential power on the campaign trail.

One noteworthy press exception I have come across was a series of articles last December in the Boston Globe (cited in Part One of this series). Charlie Savage, the Globe’s Pulitzer Prize-winning reporter, asked all of the Republican and Democratic candidates 12 questions that examined a number of the excesses of the Bush administration in their two terms in office.

Savage’s articles were exemplary in that they framed the discussion in terms of presidential power and the Constitution. And the candidates’ answers, available in full on boston.com, give a good insight into how each candidate might view the powers of the presidency once he is in office. (Click here to access McCain’s views, and here for Obama’s.)  

Obama’s answer to an open-ended question from Savage provided more information about his views on the limits of presidential power than anything I have seen elsewhere. McCain, unfortunately, chose not to answer this particular question:

“Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you simply think is a bad idea?”

Obama identified several actions or claims to authority by the Bush administration as unconstitutional, illegal or “a bad idea” He said waterboarding is, in fact, torture and is unconstitutional. He answered that “warrantless surveillance of American citizens, in defiance of FISA” is both unlawful and unconstitutional, while the “detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants” is also unconstitutional. He stated that the violation of international treaties ratified by the Senate, specifically the Geneva Conventions, “was illegal (as the Supreme Court held) and a bad idea.” And, he said, “The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.”

At one of the fall debates, I would hope that the moderators Jim Lehrer of PBS, or Tom Brokaw of NBC, or Bob Schieffer of CBS would ask both candidates a question like that, with follow-ups, and McCain would have to answer. Obama wouldn’t be let off the hook, either. He could be asked as one of the follow-ups: If you felt these Bush administration acts were unconstitutional and illegal, why did you never call for the impeachment of Bush and Cheney since such actions would mean they violated their oath to defend the Constitution? To both candidates: If not impeachment, how do these abuses get remedied, now and in the future?

There has been, of course, some outstanding reporting in various publications that helped bring many of the Bush administration abuses to light over the last two to three years. I am particularly familiar with breakthrough articles that McClatchy Newspapers , New York Times, Washington Post, Wall Street Journal, Boston Globe, Los Angeles Times, among others, have variously published on abuses of the Constitution by the Bush administration – torture, rendition, warrantless wiretapping, mining citizens’ personal records, the huge number of errors on the “no-fly” lists, and Bush’s hundreds of  “signing statements” (for which  the Globe’s Savage won his Pulitzer in 2007). 

Yet almost all of these first-rate articles made no mention of where the presidential candidates stand on these issues or on the bigger issue of excessive presidential power and Congress’s failure to provide checks on such power. Perhaps such articles don’t always lend themselves to discussion of candidates’ views. Still, it would surely be a vital public service for major newspapers and broadcast media to take a comprehensive look at what all of these abuses collectively augur for the Bill of Rights and for the future of presidential power and American democracy. And reporters need to ask whether the candidates would, as president, keep, eliminate or modify some of the claims to power of the Bush Administration?

There have  been some national media that have indeed taken a more comprehensive look at Bush administration excesses, but these are smaller, less-listened-to broadcast outlets such as Bill Moyers on his PBS “Moyers Journal,” Amy Goodman on Pacifica’s “Democracy Now,” and David Brancaccio’s  “Now”, which had a series on “Threats to Democracy” on PBS. There have also been numerous notable books in the last two years dealing with the Bush administration's excesses and what needs to be done about them, written by both conservative and liberal scholars, as well as journalists. And Moyers and Goodman have regularly featured constitutional scholars (conservative and liberal) and human rights campaigners who have made the case for the impeachment of Bush and Cheney – yes, the “I” word so dreaded by the Democratic leadership and almost all mainstream publications and broadcast media.

The watchdog organization Fairness & Accuracy in Reporting (FAIR) in its May/June 2008 Extra!, published an article by Cynthia Cooper, headlined “Failing to Use the 1st Amendment to Defend the Bill of Rights.” As Cooper noted, the thumbnail sketches of candidates prepared by the New York Times campaign team for the Times’s “Election Guide 2008,” “do not mention civil liberties, civil rights or the balance of powers among the seven issues meriting analysis of candidate positions...” And, she wrote, the Washington Post and Fox News “also fail to include civil liberties in their issue tracking, and CNN addresses them only in terms of how the candidates will ‘conduct the war on terror.’”  A similar pattern was found elsewhere in the mainstream media.

Cooper also presented solid evidence from a Media Matters analysis to show that civil liberties issues virtually never came up in questions in some 30 presidential candidates’ debates in 2007-early 2008. Looking back at those earlier debates, I recall only candidates marginalized by the mainstream media – Democrat Dennis Kucinich (who was excluded from several debates) and Republican Ron Paul – getting in an occasional word against the growing concentration of presidential power and threats to the Constitution.

And now the even more marginalized third-party presidential candidates – Green Party candidate Cynthia McKinney, independent candidate Ralph Nader and Libertarian Party candidate Bob Barr (who was no friend to District of Columbia citizens’ civil liberties when he was a Republican member of Congress, but who has since taken on Bush-Cheney on what he perceives as their threat to the Bill of Rights) – regularly speak out on the imperial presidency. They, of course, get virtually no mainstream press coverage and will be excluded from this fall’s presidential debates, thereby lessening the likelihood that presidential power and civil liberties will come up much in those debates – unless the debate moderators and reporters covering the campaigns pleasantly surprise us all.

As usual this year, we are still reading and hearing too much in the news media and in the debates about the horse race, and about vague concepts such as “experience” versus “hope” and “change,” and who is the “outsider,” and issues of “patriotism” such as why Barack Obama didn’t wear a flag lapel pin. Of course, it’s not only issues of presidential power that are getting short shrift, but that’s a whole other discussion.

Some editorial writers and op-ed columnists have written a good amount on the Bush administration’s abuses of power and threats to our civil liberties, but most are skittish when it comes to stating what the remedy for such abuses is. The New York Times, in an otherwise hard-hitting December 31, 2007, editorial itemizing the “shocking abuses of President Bush’s two terms in office, made in the name of fighting terrorism,” weakly concludes: “We can only hope that this time, unlike 2004, American voters will have the wisdom to grant the powers of the presidency to someone who has the integrity, principle and decency to use them honorably.”

Reading this 98 percent powerful editorial, you can see that the Times tiptoed right up to calling for impeachment, and then backed off with an over-the-shoulder, shrugging comment that well, let’s hope we do better next time.

Without a Congress exercising vigorous oversight, and without the major press outlets vigorously examining the rise of presidential powers and the lack of oversight by the Congress, then there is little to prevent future presidents from repeating the Bush administration's abuses (and coming up with a few new abuses of their own). In this case, “hope” is not enough.

If we as a nation are truly serious about our young men and women in the military putting their lives on the line to defend our liberties, isn’t it worth having a discussion of what exactly those liberties are – and what is the state of those liberties today? How much faith do our leaders really have in the Constitution? We need more reporting on these issues. We need to hear McCain and Obama debate these issues. It’s up to the candidates and the press to make it happen.

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