On the other hand

The preceding post (http://dethronekinggeorge.blogspot.com/2006/05/crocodile-tears.html) concludes the sudden attack of Constitution-loving currently afflicting the Royalist leadership in Congress is nothing but a sham. Not everyones sees it that way. The consensus in the more rationale precincts of Blogland is they are braying about "separation of powers" for one of two reasons:

1) They are trying to keep the FBI from poking into any of the rampant corruption that has been the singular hallmark of the Royalist reign in the Legislative Branch for more than a decade. Kos argues the Royalists even have enablers among their reputed opponents:

"Congress (with [Minority Leader] Pelosi's acquiesence) has proven completely unwilling and unable to police its own. It has taken several justice department investigations to begin rooting out the deep corruption in the place. It's a cesspool.
And there is NOTHING in the Constitution that places Congress above the laws faced by the rest of American citizens. If there is lawbreaking happening on Capito[l] Hill, the Justice Department is duty bound to investigate and enforce the law." http://www.dailykos.com/storyonly/2006/5/24/20302/4409

2) The Royalists don't want the object of this most recent outrage, William Jefferson (D-Freezer) frogmarched out of the Capitol Building too quickly. Michael Tomasky at Tapped pointedly asks:

"[D]oes anyone else suspect that maybe half the reason Hastert et al. are so in heat over the Jefferson raid has nothing to do separation of powers and something to do with the fact that if they defend Jefferson and help him stay in the House, the corruption issue doesn’t cut so cleanly for Democrats?" http://www.prospect.org/cgi-bin/mtype/mt-tb.cgi/664

There is a third possibility. Frist, Hastert and the entire Royalist kaffee klatch may actually believe in the principle of separation of powers and they are standing on that principle. As Matt Yglesias notes at Tapped:

"Dennis Hastert and the other congressional leaders are right on the merits here. There's a reason why security for Congress (and the Supreme Court) is provided neither by the Secret Service, nor by the FBI, nor by the DC Police Department, but rather by a special Capitol Police Department (or Supreme Court PD for the SCOTUS). This is also why the Constitution stipulates that members "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place." http://www.prospect.org/cgi-bin/mtype/mt-tb.cgi/663

He's right, of course. The Constitution erects a wall between the authority vested in the Executive Branch and that entrusted to the Legislative Branch (and another wall protecting the Judiciary from the other two). It is an edifice of words, of ideas, yes, of principles. Each branch is expected in our Constitutional system to respect the authority of the other two.

I might buy the "matter of principle" argument if there was a scintilla of evidence that Frist, Hastert and the happy Royalist band had ever...even once...actually conducted their public duties as if they believed in the separation of powers. They have not. At each incursion by King George into the legislative arena (see "signing statements"), the Royalist parliamentarians have risen in unison to cheer, "Hear! Hear!" At every instance when King George has ordered his minions to violate the express will of Congress (see "NSA illegal wiretapping"), then brazenly bragged in pubic about his exercise of untrammelled imperial authority, the Royalists on the Hill have positively swooned at his manly assertiveness. Each time His Majesty has thumbed his nose at the Judicial Branch (see "Jose Padilla"), Bill and Denny and the gang have linked arms to sing "God Save the King".

In other words, I'll believe Bill Frist, Dennis Hastert and their fellow travelers are acting "as a matter of principle" if they ever demonstrate they have any principles.

I'm not holding my breath.

Crocodile Tears

Oh, the outrage! Oh, the hanky-wringing! Oh, the indignity! Bill Frist, John Boehner, Dennis Hastert and the whole cadre of Royalists on Capitol Hill are "shocked, shocked I tell you" that the FBI would defile the halls of Congress with its vile presence! The sheer effrontery of those Executive Branch operatives, to think they could simply sashay into the bowels of the Legislative Branch and snoop around! The notion moves the Speaker of the House to the brink of apostasy:

"The Founding Fathers were very careful to establish in the Constitution a Separation of Powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch." http://hotlineblog.nationaljournal.com/archives/2006/05/a_raid_too_far.html

This is the same gang of imperial coat-holders who have stood aside silently as other operatives of the same Executive Branch (known as agents of the NSA) have ignored the express will of the "Founding Fathers" to eavesdrop on Americans without a court order, or even a hint of probable cause. (Notable exception: Frist, who has actively encouraged this unlawful behavior by offering legislation that would make it legal...even if it's unconstitutional.) This Royalist cabal even went so far as to empower those very operatives they now profess to detest (FBI agents) to seize the records of private transactions (like use of a library card) by fiat (euphemistically known as a "National Security Letter").

But let one of them darken the door of the U.S. Capitol, even if he is carrying a duly authorized court order, and the Royalists bay like a pack of abused pomeranians.

There are those who read ulterior motives into the response:

"Remember, the Justice Department has a number of investigations targeting lawmakers and staff on the Hill. Various committees and members have received subpoenas for documents and other cooperation, and they've been reportedly dragging their feet rather than comply.
Intentionally or not, the FBI's raid could be read by other lawmakers to mean: if you don't willingly comply, we'll come take what we need. In that sense, the raid wasn't just a hit on Jefferson, it was also a warning shot across the bow of all those facing scrutiny: you could be next." http://www.tpmmuckraker.com/archives/000717.php

I, on the other hand, think that analysis gives Frist and his Fristlings too much credit. Instead, I believe this furor is calculated. It allows the Royalists to coat themselves with a patina of rspectability -- you know, makes them look like they really care what's in that Constitution none of them (apparently) has ever read. They raise a hue and cry about "separation of powers"...just like the one a few lesser Royalists (e.g., Arlen Specter) kicked up when the NSA illegal spying scandal broke. In time -- days at most -- King George will send one of his courtiers to Capitol Hill to assure the Congressional Royalists that they need never concern themselves about being the target of such heavy-handed tactics. Those are reserved only for the disloyal (and anti-Royal). Heck, I wouldn't be surprised if, by this time next week, Frist is proposing legislation to set up a special private FBI entrance to the Capitol.

For the time being, though, they must keep up appearances. They must toss around phrases they neither comprehend nor respect, like "separation of powers" and "tyranny of any one branch of government". Those are not words to the true Royalists. They are the verbal equivalent of crocodile tears.

The Deck Is Fully Stacked

Kudos to Glenn Greenwald for his thorough exposure of the inherent cowardice of King George and his minions. Despite all their protestations of "unitary executive" and "inherent authority", the Bushites have done everything they can to prevent any court of competent jurisdiction from ever ruling on the legality of their actions. They kicked Jose Padilla out of the "enemy combatant corps" just in time to prevent the Supreme Court from reviewing his arrest and incarceration. They short-circuited the secret FISA court to avoid having to answer any questions about the NSA's electronic vacuum cleaner projects. The lists goes on, and Glenn chronicles them all at his blog "Unclaimed Territory" http://glenngreenwald.blogspot.com/. Most recently, he notes, the royalists on the Senate Judiciary Committee have blackmailed Chairman Arlen Specter into dropping a provision from his proposed FISA "reform" (which in itself renders FISA meaningless) that would have required the secret court to review the NSA warrant-free snooping and rule on its legality. As Glenn notes:

"One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior." http://glenngreenwald.blogspot.com/2006/05/gop-senators-block-judicial-review-of.html#links

But I wonder if all this legal shell-gamesmanship isn't just a stalling tactic. During the first four years of his reign, King George had to contend with those flaming liberals Sandra Day O'Connor and William Rehnquist on the Supreme Court. But not any more. John Roberts, inventor of the "presidential signing statement" that has rendered all acts of Congress null and void, and Samuel Alito, who never met a police power he didn't like, are on the high bench now. And they are making life so much easier for those in charge. In an Ohio case, the new Chief Justice writes:

"State taxpayers have no standing... to challenge state tax or spending decisions simply by virtue of their status as taxpayers." http://www.philly.com/mld/inquirer/business/14587337.htm

Let's allow that to soak in a moment. What Roberts is saying is that "We the People" no longer have any stake in the actions of government. If a taxpayer cannot challenge the "tax or spending decisions" of the government, then the taxpayer can challenge NO decisions of the government. It's as simple as that. For there is no decision made by any level of government that isn't, at its heart, a decision about taxation or appropriation. Whether it's a city council decision on"use rates" for the municipal water utility, or $109 billion to fund a war or two (or, apparently, three in the near future), every action of every government turns on its power to raise and spend money.

And with a single sentence, the Roberts court has cut all American citizens out of all those decisions. Never mind those First Amendment niceties about "the right of the people... to petition the Government for a redress of grievances." http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html Under the current regime, the people have no "standing" to seek "redress". The courthouse doors are locked to them.

We might take some solace in the integrity of the court as an institution had this case been decided on a 5-4 vote, with vigorous dissents from the so-called "liberal" members of the bench. But it wasn't. The ruling in DailmerChrysler v. Cumo was unanimous. Not one justice objected to the Roberts assertion that "taxpayers have no standing...to challenge state tax and spending decisions". (Justice Ruth Bader Ginsburg merely expresses "reservations" in a concurring opinion.) http://www.supremecourtus.gov/opinions/05pdf/04-1704.pdf (.pdf file)

Here, then, is the plain evidence King George has been awaiting. The Supreme Court is finally, and fully, his for the asking. The Justices see no reason to listen to the pleas of average Americans who have been wronged by their government, for they have no standing to challenge any government action. The Cumo decision is the green light. The Supreme Court has become, for all intents and purposes, the Royal Court, and the monarch may do as he pleases.

Wish I'd Said That

One of the best wordsmiths in Blog Nation nails a fundamental issue in the scandal over illegal spying by King George. Noting the first flurry of public opinion polls shows wildly variant levels of support for the NSA's latest outrage, Billmon gets right to the point:

"The whole point of having civil liberties is that they are not supposed to be subject to a majority veto. Hobbes may not have believed in natural rights, but our founders did. And their opponents, the anti-Federalists, were even more zealous about restraining the powers of the federal superstate, which is why they forced the Federalists to write the Bill of Rights directly into the Constitution.
It defeats the purpose of having a 4th Amendment if its validiity is entirely dependent on breaking 50% in the latest poll. It would be nice to have 'the people' on our side in this debate, and obviously a lot of them are, even if [a] plurality still prefers Leviathan's crushing embrace. But some things are wrong just because they're wrong -- not because a temporary majority (or even a permanent one) thinks they're wrong."
http://www.billmon.org/

The British mathematician and social critic Bertrand Russell is credited with these words of wisdom: "If fifty million people say a foolish thing, it is still a foolish thing." Pollsters, of course, are tone deaf to this truism.

The NSA phone records database is doubly illegal. It is against the law for the government to collect those records without a search warrant, and it is illegal for the phone companies to surrender those records without being presented with a search warrant. And that has been true since 1934. Yet an "instant poll" conducted for the Washington Post and ABC News (both of whom should know better) found 63% of those surveyed find collection of phone records "acceptable". And 66% professed it would not "bother" them to learn their own phone records had been collected. At no point, however, were respondents informed that the collection of those records was a violation of federal law. Might that change their reaction?

Of course it would:

"In the latest Newsweek Poll, a majority of Americans polled, 53 percent, believe that reports that the NSA has been secretly collecting the phone records of U.S. citizens since the 9/11 terrorist attacks to create a database of calls 'goes too far in invading people's privacy,' while 41 percent feel it is 'a necessary tool to combat terrorism.' In light of this news and other actions by the Bush-Cheney administration, 57 percent of Americans say they have gone too far in expanding presidential power, while only 38 percent say they have not." http://biz.yahoo.com/prnews/060514/nysu010.html?.v=55

So which is it? Billmon's point is this: it doesn't matter. Our liberties are not protected by the prevailing winds of public opinion, nor by the empty promises of the political party in power. They are protcted by the Constitution of the United States, whether King George feels obligated to acknowledge that or not.

One can be sure of this: when the Bushies start showing up in the dock as criminal defendants, they will all demand the same Constitutional protections they are now so vigorously trying to take away from the rest of us.

Headlines We Don't See

A singular, astonishing and apparently unprecedented event occurred on Friday. The FBI raided CIA Headquarters in Langley, Virginia. Think about that for a moment. The Federal Bureau of Investigation is gathering evidence of crimes so momentous, it sent agents into the sanctum sanctorum of the United States Intelligence Community.

Not that you'd ever know it from the media coverage. Almost universally, TV and newspaper reports are couched in the jargon of law enforcement. The Bureau, we are told, was "executing search warrants" at a home and an office in suburban Virginia. Buried very deep in the reporting is the information that the office was inside the CIA. And almost as an afterthought, we are informed the home belongs to Kyle "Dusty" Foggo, a career CIA official who runs the agency's day-to-day operations.

"Executing search warrants" is cop-talk for "raid". When the G-men kick in the doors of an Italian-American social club, they are "executing search warrants". When ATF agents stormed the Branch Davidian compound in Waco, armed with assault rifles and shielded by body armor, they were "executing search warrants".

When reporters characterize the FBI operations in Virginia in those terms, they are, in effect, concealing the truth. Fortunately, Mark Sherman of the Associated Press wasn't afraid to call a raid a raid (and the Houston Chronicle wasn't afraid to print his account):

"A growing contracting scandal took a dramatic turn at the CIA with raids on the office and home of the agency's departing No. 3 official...Investigators from five federal agencies acted under search warrants at Foggo's home in Vienna, Va., and his office at the CIA's Langley, Va., campus." http://www.chron.com/disp/story.mpl/ap/politics/3861114.html

I can't think of another instance in the history of the CIA that federal agents have shown up with search warrants. Lord knows, there have been sufficient reasons over the years to send the feds into the bowels of Langley, but I can't recall it actually happening. (I would appreciate anyone correcting my recollection on this point.)

Despite the extraordinary nature of Friday's events, I haven't found a single media outlet that boiled them down to the simple, declarative phrase, "FBI Radis CIA". Even the Houston paper cited above weaseled out on the headline ("Feds Search Home, Office of CIA Official"). Time was -- not so very long ago -- no newspaper editor in America could have resisted the short, eye-grabbing headline "FBI Raids CIA". In this day of 24-hour cable TV news with its screen-crowding headline crawls, the punchy, three word phrase would be a natural. Yet it never appeared.

Perhaps we shouldn't be surprised. In December, President Bush, for the first time in his presidency, delivered his weekly radio address on live television. During that speech, he revealed that he had ordered the National Security Agency to conduct electronic surveillance of American citizens without search warrants on more than 30 occasions. The Foreign Intelligence Surveillance Act of 1978 (even as amended after 9/11) makes electronic eavesdropping on American citizens without a search warrant a felony, punishable by up to five years in prison. So when Bush confirmed he had ordered the surveillance, he was admitting he had committed at least 30 felonies, and is liable for up to 150 years in prison. (The potential sentence is much higher, since each individual illegal wiretap authorized is a separate offense, and there were apparently hundreds authorized each time Bush gave the order.)

I watched Bush's performance that day in utter astonishment. Never before has any president of the United States publicly declared he has violated the U.S. Criminal Code. Even Richard Nixon went to his grave professing his innocence. Ronald Reagan never even entertained the notion that his illegal activities (lumped together under the catch-all title "Iran-Contra") might somehow have run afoul of the law. Not even Warren Harding had the hubris to stand up before the American people and admit that he -- and his Cabinet officers -- were felons.

But George Bush did. Not only did he confess his crimes, Bush proudly proclaimed he would keep committing them, and asserted that no one could stop him. What a headline that would have made! Alas, it never appeared, in the U.S. print or broadcast media. How could they resist, I wonder, these defenders of "the truth without fear or favor"? Think of the papers it would have sold. Imagine the ratings spike. I can even see it now -- a glitzy animation with appropriately stately drum-and-bugle background music, a rippling Stars and Stripes emblazoned with the words:

Bush Confesses

But it was not to be. Our media companies have become so timerous in the face of government authority that they dare not speak truth to power. Or even, it seems, to the powerless -- the American people.

High Crimes and Misdemeanors

In 1998, the House of Representatives set the bar for presidential conduct when it approved Articles of Impeachment. Just what did the House condemn?

In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice...

Article One http://teachingamericanhistory.org/library/index.asp?documentprint=456

That's pretty clear language, isn't it? The House makes it clear that a sitting president is not permitted to violate "his constitutional oath of ofice to execute the office...and, to the best of his ability, preserve, protect, and defend the Constitution..." Nor is he permitted to "willfully corrup[t] and manipulat[e] the judicial process of the United States for his personal gain and exoneration...", nor is "impeding the administration of justice" permissable behavior. Indeed, such activities are so injurious to the Republic that Clinton was charged with doing them all twice (Articles One and Two).

In Article Three, the House tells us, Clinton also "has prevented, obstructed, and impeded the administration of justice, and has to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a...duly instituted judicial proceeding." Further, Article Four asserts, Clinton "impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth—seeking purpose of a coordinate investigative proceeding..."

(Articles Two and Four failed to win majority votes in the House.)

Ah, but those were different times. Certainly the current members of the House would never hold the current president to the same standard, would they? Perhaps we should ask Speaker Dennis Hastert, Majority Leader John Boehner, Majority Whip Roy Blunt and Judiciary Committee Chairman James Sensenbrenner. They voted "Aye" on all four Articles in 1998. And what of the Senate? Would Majority Leader Bill Frist agree that the behavior described in the Clinton Articles of Impeachment still consitutes "high crimes and misdemeanors"? He certainly thought so then, since he voted to convict on both. What about Senator John McCain? Would he hold all presidents to the same standard he voted to impose on Clinton? Would either Frist or McCain swear an oath to avoid such behavior if either is ever elected president?

The answer should be clear -- indeed, all Americans would agree that a president should never violate his constitutional oath, manipulate or corrupt the judicial process, delay or impede a duly constituted investigation, or contravene the authority of the legislative branch. Well, maybe not all Americans. King George doesn't consider such actions worthy of impeachment. Indeed, they are the hallmarks of his term in office. And such upholders of our constitutional system as Hastert, Boehner, Blunt, Sensenbrenner, Frist, McCain, et. al., apparently agree. Not one of them has so much as entertained the notion that a president who confesses to committing dozens of felonies should be considered in violation of his oath. Indeed, they dismiss any talk of holding the current president accountable for his crimes as "extreme." Frist says even suggesting a censure of the president is "crazy". http://www.washingtonpost.com/wp-dyn/content/article/2006/03/12/AR2006031200877.html

If that's what they say now, when the president has admitted breaking the law, and dfiantly proclaimed his intention to continue breaking it so long as he reigns, what does that make them? And what did it make them in 1998 and 1999 when they voted to remove from office a president they were convinced had broken the law?

"Can you hear me now? Good (NOT)!"

Times of London reports on the latest illegal snooping by King George and his lackeys:

The programme is significantly different from — and potentially far more damaging politically than the secret, warrantless wiretapping programme revealed in December. That involved monitoring calls and e-mails in which one party was abroad. Polls consistently showed that a significant majority of Americans backed Mr Bush on that because they believed it specifically targeted terror suspects. (Actually, that is NOT what the polls say.)
Frank Luntz, a Republican pollster, told The Times: “There is a very fine line between national security and personal oppression. The public is prepared to accept a degree of intelligence intervention but this may have crossed the line. I think a majority of Americans will be opposed to this.”

http://www.timesonline.co.uk/article/0,,3-2176605,00.html

Okay, friends, let's review:

The president assures us no one is listening in on all our phone calls. They're only monitoring who we call, who calls us and how long we talk to each other -- without any of that messy court paperwork the law requires. They want to know who's talking to whom and for how long because that information can reveal patterns that lead them to (what else?) terrorists. Once they spot such a pattern, the NSA can immediately start monitoring the calls themselves -- again, without any court order -- in an effort to find an "evildoer" on one end of the call, or the other. Said evildoer can then be abducted from his/her home, a public street, an airport or anywhere, frankly, and whisked off to a U.S. military base, to be held without charge and without legal counsel. Or, perhaps, said evildoer will be whisked off to a secret prison operated by the CIA in eastern Europe. Or simply transferred to the custody of a friendly country (Egypt, Indonesia, Pakistan, the list goes on) with a less than firm grasp on the concept of "human rights". There the evildoer will remain until either 1) interrogators using creative tactics extract important information about terrorism, 2) interrogators using creative tactics extract a confession about terrorism, or 3) said evildoer dies. All without any of that messy court paperwork that so bogs down the crusaders for freedom in the United States government.

Even though federal law prohibits the government from finding out who you call, who calls you and how long you talk without a court order; from monitoring your phone calls without a court order; from abducting you; from incarcerating you without charge or legal counsel; from sending you abroad to face torture, King George has ordered all of those acts (and more) carried out in his name -- and yours. Why?

Mission Statement

Dethrone King George is dedicated to the proposition that no one -- not even the president of the United States -- is above the law. We shall use every means at our disposal to expose the lawlessness of the current holder of that title, and to bring him and his minions to account for their crimes.