Category Archives: Constitution

Good Night and Good Luck

I hate to get cranky, but I think a lot of us are forgetting what America is all about.

Repeat after me: our constitution wasn’t designed for cowards. The Founders didn’t protect our right to say what we think because they believed we would all mouth non-offensive proprieties. They didn’t insist on our right to pray (or not) as we choose because they were confident we would all agree about the nature of Ultimate Truth. And they didn’t insist that government show a darn good reason to search or detain us because they were sure we wouldn’t ever have anything to hide.

They protected liberty because they valued it for its own sake—not because it was safe.

In fact, they were well aware that liberty isn’t safe. Freedom is dangerous, and those who drafted the Bill of Rights knew that. They just believed that a government with the power to decide what ideas may be expressed, or what prayers must be said (and to whose gods) is much more dangerous. They were willing to risk political, scientific and religious debate—just as they were willing to take the risks of a market economy. No risk, no reward.

We’ve come a long way, baby—to weenie land, apparently. Recent headlines paint a depressing picture of a society increasingly afraid to entertain different ideas or consider evidence inconsistent with our preferred realities.

In New Mexico, a nurse with the Veterans Administration is being investigated for sedition—sedition!—because she wrote a letter to the editor criticizing George W. Bush and advocating withdrawal from Iraq. The letter was signed in her private capacity as a citizen, written on her own time, on her own stationery. She has been a VA clinical nurse specialist for sixteen years; she is now refusing to give interviews and is reportedly terrified that she will lose her job.

In Washington, a thirty-six-year veteran of the Congressional Research Agency who is widely considered the most eminent living scholar of Separation of Powers has been told to “apologize” and threatened with loss of his position in the wake of a research report disputing Presidential authority to ignore Congress and engage in unchecked surveillance of Americans’ communications. This is an individual who has served with distinction under Republican and Democratic Administrations alike.

At NASA, in one widely reported incident, an expert on global warming was ordered to modify a scientific paper posted to the agency’s website. In another, five researchers from CalTech who published a report on “Potential Environmental Impact of a Hydrogen Economy” abruptly had a planned NASA conference cancelled, reportedly by the White House Office of Science and Technology Policy, and further funding for this research has been cut off.

Perhaps—before we make too many self-righteous comparisons between our own devotion to “liberty” and the Islamists violent reaction to Danish cartoons—we should take a good hard look in the mirror. That isn’t James Madison looking back. In fact, it bears a striking resemblance to Joe McCarthy.

 

 

 

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The Hobgoblins of Little Minds

Emerson once declared a “foolish consistency” to be “the hobgoblin of little minds.” Depending upon your definition of “foolish,” I guess that means our legislature is populated by mental giants, undeterred by the inconsistencies that baffle us lesser folks.

 

One the one hand, members of the General Assembly are mightily exercised over supposed abuses of the power of eminent domain. The trigger for this sudden solicitude was a recent Supreme Court ruling, Kelo v. New London, that left the definition of “public use” up to state legislatures. While reactions to that ruling arguably misread it, the ensuing debate has revolved around the issue of protecting property rights against inappropriate exercises of government power. Reasonable people will differ over what is appropriate, but most of us would agree that protecting private property from government overreaching is important.   

 

On the other hand, the legislature is poised to effect its own “taking,” by issuing regulations that will effectively require abortion clinics to close. They dictate such minutiae as hallway width and room size. Compliance would require clinics to rebuild or relocate, an expense most could not afford. Ignore for the moment another “foolish inconsistency”—i.e., why these “health” regulations, supposedly based on legislative concern for patient safety, are not being applied to other medical facilities, like hospitals or urgent care offices or surgical outpatient clinics. The immediate question that arises is: how can the same lawmakers who have been delivering pious affirmations of private property rights and the sanctity of free enterprise turn around and pass a measure that will put these particular enterprises out of business?

 

If one were cynical, one might conclude that neither position is principled, and that what we have here is a classic case of pandering to different constituencies, with little regard for the merits or long-term effects of either policy. But I really don’t think that is the explanation. I really think that our lawmakers are oblivious to the inconsistencies in these two positions.

 

When I was active in the Republican Party, it was the party of limited government. Republicans wanted to keep the government out of your boardroom, your bedroom, and your conscience. Pundits often opine that contemporary Republicans still want government to stay out of the boardroom, but are perfectly happy to regulate your bedroom and your conscience. I don’t think that’s true, either. Today’s GOP is also perfectly willing to infringe your property rights and overrule your business decisions in the interests of morality. Their morality, not yours.

 

If your moral code says businesses shouldn’t pollute, that is insufficient reason to regulate emissions. If your moral code dictates paying workers a certain minimum wage, that is unwarranted interference with the market. If your moral code says everyone should have access to health care, that’s socialism. But if their moral code says a legal medical procedure is immoral, it is entirely proper to overrule the professional judgment of doctors and nurses, and regulate that business out of existence.

 

I guess I’m just hung up on “foolish inconsistency.”     

 

 

How a Bill Doesn’t Really Become a Law

 

Remember high-school government class, and the textbook explanation of how a bill becomes law? Congress drafts legislation which it sends to the President. If the President vetoes it, it fails, unless Congress has enough votes to override the veto. If the President signs the legislation, he issues a press release, hands out commemorative pens, and the bill becomes law.

 

Or maybe not.

 

As the media often notes, President Bush has never used his veto. As it turns out, his administration has instead acted upon advice given to then-President Reagan by a young lawyer named Samuel Alito, and simply avoided that pesky “checks and balances” thing that the Founders were so hung up on. They have used something called a “signing statement,” and it works like this: when Congress passes a bill the President doesn’t like, he goes ahead and signs it. But along with the usual (publicly distributed) press release, he issues his own “constitutional interpretation” of the legislation.

 

Fair enough; the President takes an oath to uphold the constitution, and if he believes legislation is unconstitutional, he is certainly entitled to say so. In the past, lacking a line-item veto, Presidents have used signing statements when a questionable measure has been attached to an otherwise important bill. More recently, such statements have been used as a not-so-subtle signal to federal agencies about how their boss, the President, wants the law to be interpreted and applied. But it took George W. Bush to take signing statements to a whole new level. He has used them to justify his intention to simply ignore provisions he dislikes, turning the statements into functional equivalents of line-item vetoes—albeit with some nifty added political benefits: the tactic deprives Congress of its constitutional right to override, and keeps most voters from ever noticing.

 

During his first term, Bush issued such statements 108 times. As Philip Cooper, an expert on presidential powers, has written “This tour de force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.”

 

We probably still wouldn’t have caught on, but the bill triggering the most recent use of this tactic was the high-profile McCain Amendment, outlawing torture of detainees and strenuously opposed by the Administration. When Bush signed it, he expressed his intent to “construe” the act in a manner consistent with his preferred interpretations of both presidential authority to “protect the American people” and “limits on judicial power.” In other words, he served notice that he will obey the law when—in his sole opinion—it doesn’t get in his way.

 

This is the grown-up version of kids crossing their fingers behind their backs while making a promise. “My fingers were crossed, so it didn’t count!”

 

In America, no one is above the law. Just as basketball players don’t get to decide for themselves whether they’ve committed a foul, even Presidents must obey referees and follow the rules of the game.

 

 

 

 

 

 

 

  

 

 

 

 

 

  

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It’s All About Power

You may think that the recent revelations about domestic spying by the Bush Administration have little to do with equal rights for gays, or for that matter, with the lawful behaviors of most American citizens.

You would be wrong.

Put aside the fact that gay rights groups in some parts of the country have been targeted for “monitoring” (along with Quakers, animal rights activists and other suspicious types) as presumed “terrorist threats.” Put aside the personalities and policy preferences of this particular White House. The Administration’s effort to exert and vastly expand unchecked executive power would be both dangerous and un-American no matter who was in office and no matter what the agenda.

Let’s review what we know: the Administration has been “mining” enormous amounts of data, obtained by “monitoring” (i.e. listening and reading) vast numbers of telephone calls and emails, without going to the trouble of obtaining a warrant. As a former lawyer for the CIA put it in a recent op-ed in the Washington Post, “it is clear that the courts did not have any role in reviewing this assertion of executive authority…[instead] an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That’s neither a check nor a balance.”

When speed and secrecy are concerns, government officials needing authorization for domestic spying can go to the special Foreign Intelligence Surveillance Act (FISA) court set up by Congress in 1978 for just this purpose. That court can approve eavesdropping in hours, even minutes, if necessary. In fact, the law specifically allows the government to eavesdrop on its own in a pinch, and justify its action to the court retroactively. The FISA court has certainly not been picky; since 1979, out of tens of thousands of requests, it has denied exactly four.  Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or dissenters who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.)

The Administration argues that it should not have to incur the “burdensome” task of complying with the Fourth Amendment.  Indeed, the administration has complained bitterly that even the FISA process demands too much: that it describe a target (the name is not required) and give a reason to spy on it. As one government official recently put it, “For FISA, they had to put down a written justification for the wiretap. They couldn’t dream one up.” (“Because I say so, that’s why” doesn’t constitute a justification.)

As we all learned in high school government class, our entire constitutional system is built on checks and balances. The founders had very good reasons for establishing a system that did not require citizens to simply trust that unlimited power would be exercised responsibly, and those reasons are—if anything—more compelling today. The issue is not whether we agree with any particular decision made, or action taken; the issue is whether the decision or action was legitimate, whether the applicable rules were followed. If the President is above the law, if—as Bush asserts—he has “inherent power” to do anything he and he alone decides is “necessary,” there is no law.

Let’s put this in less abstract terms. As Larry Johnson has recently written, under the logic of the Administration’s argument, if the President were to decide that pedophilia is necessary to save the nation, he would have “inherent authority” to engage in it. If you think that is absurd, it is; but just try to explain how it is logically different—and why.

Bush’s assertion that he has the power to do whatever he wants, whether there are existing laws against it or not, without the interference of those pesky courts and/or Congress, is no different from the arbitrary actions of innumerable law enforcement officers who decided before Lawrence v. Texas to enforce anti-sodomy laws against some people but not against others, or the decisions of southern sheriffs to turn a blind eye to evidence that “Bubba” was involved in that lynching down the road. As they used to say in the old Westerns, “I’m the law in these parts, fella.”

In a country without respect for individual rights and the rule of law, marginalized groups are always the first to suffer. But they aren’t the last.

  

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Snoopgate

Newsweek calls the revelation that the Bush Administration has been routinely spying on thousands of American citizens “Snoopgate.”

 

For his part, President Bush has angrily condemned the leak of information about his domestic spying program—indeed, he has shown far more righteous indignation than he demonstrated over disclosure of the identity of CIA agent Valerie Plame, even though that leak arguably did endanger national security.

 

Bush’s defense of his actions boils down to two claims: as President, he has “inherent authority” to do anything he damn well pleases; and following the law would be “too cumbersome.” The first claim is too specious to require rebuttal. (If the President has “inherent power” of that magnitude, why do we need the Patriot Act? And what about the President’s constitutional duty to uphold and obey the laws?) The second is equally without merit. As Newsweek notes, the special court set up by Congress in 1978 can approve eavesdropping “in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify to the court.” The court has also looked favorably on Administration applications: since 1979, out of “tens of thousands” of requests, the court has denied exactly four.

 

Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or others who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.) And indeed, the New York Times reports that the FBI is gathering covert intelligence on such threats to American security as Greenpeace, PETA, Quaker anti-war groups, and—right here in Indianapolis—a Vegan Community Project. Recently, FBI agents interrogated a student at Dartmouth who was researching a paper on communism for his Fascism and Totalitarianism class, because he had requested a copy of Mao Tse-Tung’s “Little Red Book” through inter-library loan.

 

I feel safer already.

 

As columnist Marie Cocca has noted, we now have a government that spies on its own citizens, detains hundreds of people without ever charging them, and maintains prisons throughout the world where we evidently engage in what most people call torture. And the President justifies going to war in Iraq—despite the absence of WMDs—because that evil Saddam spied on Iraqi citizens, detained people without due process, and engaged in torture.

 

On December 9th, Doug Thompson, a former GOP operative who now writes for Capitol Hill Blue, reported on a meeting between Bush and Republican Congressional leaders on reauthorization of the Patriot Act. According to Thompson’s three (unnamed) sources, when a Congressional aide said there were valid constitutional concerns about certain provisions of the Act, the President screamed “Stop throwing the Constitution in my face. It’s just a goddamned piece of paper.”

 

Despite my strong disapproval of this Administration, I did not believe that story when I read it. But given the most current revelations, it sure seems a lot more plausible.

 

  

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