Congress, Step Up
Presidential overreaching, even at a scale as grand and outrageous as that practiced by the Bush Administration, leaves the country in a bit of a quandary. Many who deplore the lawbreaking and its consequences will believe, not without considerable justification, that the President and his enablers must be brought literally before the bench and held to account. The argument here is that if a President violates both the Constitution and relevant statutes and is not made to answer for those actions, the very failure to punish will serve as a precedent that will encourage successors in the presidential office to act similarly, the same argument made by many who would have preferred to pursue impeachment.
Others will argue, also with merit, that the nation's problems -- two wars, an economic meltdown, environmental crises, the high costs of health care and education -- require the government's full attention. As was seen with the disastrous attempt to remove Bill Clinton from the presidency, impeachment diverts the attention of the White House, the Congress, the press, and the public from the problems at hand. Mr. Bush, they will say, will soon be gone and one should not allow his misdeeds to continue to do harm. In short, the argument goes, it is time to move on.
And then there are the arguments, just posed, in favor of an independent commission charged with getting to the bottom of the Bush legacy -- how many, how often, when, where, by whom.
Herewith, a different thought.
There should be a thorough investigation of the ways in which the current Administration may have disregarded the Constitution (examples: under the Constitution, the suspension of habeas corpus rights -- for anybody -- is flatly prohibited; the Constitution gives to the Congress, not the Executive, the sole authority to determine the treatment of captives; surveillance of American citizens requires a warrant). But that investigation should -- no, must -- be carried out not by an independent commission but by the Congress, just as Harry Truman, a Democratic Senator, investigated the War Department in a Democratic Administration and just as a Congress controlled by Democrats investigated the Watergate break-in during a Republican Administration. Party considerations must not trump legislative responsibility. The Congress has the obligation to examine whether laws were broken or new laws are needed. Members of Congress have taken an oath to defend the Constitution. During the Bush Administration, the Congress receded further and further into irrelevancy; it is up to its new members to ensure that it regains its position as the First Branch of government. The original post begins with the wrong premise: the competing forces in this drama are not Republicans and Democrats but the Executive Branch and the Legislative Branch and it's high time that the legislative branch re-established itself as a separate, independent and equal check on the presidency.
It is also important to explore the loopholes identified by Mr. Bush and his administration that we, as a society, wish to have plugged through new legislation. For example, if in fact he may bypass legislation currently through the use of signing statements, maybe legislation should be passed to prevent this.
November 24, 2008 6:11 PM | Reply | Permalink
Bush ignored the Constitution and current laws when it suited his purpose. What on earth makes you think any additional laws would have had a deterrent effect on him?
The problem is, Congress is tasked by the Constitution with removing a President who commits crimes. Since Congress has been Bush’s bitch the past eight years, I don’t see anything that will prevent a future rogue President from doing the same thing unless and until Congress grows a pair.
November 24, 2008 9:55 PM | Reply | Permalink
The main loopholes identified by Bush/Cheney had already turned into gaping fissures, with Democratic collusion, in the aftermath of the Clinton impeachment: I mean the laws regarding Special prosecutors that kept Iran/Contra from subverting our nation completely, and that produced the distressing, but hardly tragic, sideshow of the Clinton impeachment.
Congress removed, again with full Democratic collusion, the statutes regarding FISA that could have been used even now to impeach Bush/Cheney for their countless violations of them.
Democrats exhibited a stunning disrespect for their own achievements in reining in Presidential overreach.
And why should they have cared? What is in it for Congress to take upon itself responsibility for forestalling Imperial Presidencies? What happened to Democrats at the polls in 1980, after the Church Commission had completed its work?
November 25, 2008 9:25 AM | Reply | Permalink
They have broken uncounted laws. they have spit on the constitution. They have given the finger to our form of government and to the separation of powers. It doesn't matter what the situation in the country may be at this moment, or for that matter any moment. If they are not brought before the bar of justice than laws, the constitution and everything the country is supposed to stand for, will have been trashed and that trashing, validated. There is no counter argument.
November 24, 2008 6:42 PM | Reply | Permalink
I agree. It is also good politics: keep the focus on the inherent lawlessness of the Republican Party through the 2010 election. Emphasize the Unitary Tyranny argument: torture, crony capitalism, feverish militarism, and illegal domestic spying are all of one piece.
November 25, 2008 10:10 AM | Reply | Permalink
Congress is the appropriate forum for this so very necessary task. Politically speaking, the country has gone off on a tangent with the witch hunt during the Clinton administration and now in a very opposite circumstance.
Up is down and down is up. For the eight years of the Bush administration the nation has undertaken things in a topsy turvy way. It is hard to imagine a more urgent need or more opportune moment to set this straight. Obama though, and not incorrectly, wants to focus on fixing the messs but shows a reluctance to fix the cause. Pelosi and Reid have been lightwieghts so far. Congress needs to show some spine. We can only hope.
November 24, 2008 6:48 PM | Reply | Permalink
.
A yes …
The “witch hunt” comment pops-up that I spoke of earlier today.
The Clinton BS could very well be spoken of as “witch hunt.” Because that fiasco was. This current situation is no witch hunt.
And I respectfully disagree that it's the sole job of congress. I say, Obama step up.
I’ll repeat myself till I’m blue in the face.
To heal the nation -- the truth be known.
So I say, do the Constitutional duty and make this an investigation with the possibility of judicial implications. Add some teeth as one would say. Non-binding committees become a partisan battle-ground in the nature of their make-up. The outcome is usually quite watered down. Think 9/11 and/or Church Committees.
And the incoming AG should be tasked with this duty. The AG is the nation’s top lawyer, not the president’s.
In June at the American Constitutional Society Eric Holder stated:
And illegal too . . .
Holder also stated:
Let the chips fall and all…
~OGD~
.
~OGD~
.
November 24, 2008 11:17 PM | Reply | Permalink
When a judge takes a bribe, he or she should receive more severe punishment than an ordinary citizen. Those in administration who abuse the public trust should be held to the same standard. Congress should hold hearings to set the stage and then a special prosecutor should be put to work. Let justice be done...all the way to the top! The drip, drip, drip of another Bush felon going off to jail every few months will hearten the masses and put the fear of God into the hearts of those in government who consider themselves above the law.
Like an infection that has been weakened but not fully eradicated, those "evildoers" who have so severely abused the public trust, if not crushed, will come roaring back at their first opportunity in a political sepsis that could be fatal to our republic. "A republic, if you can keep it."
November 24, 2008 7:30 PM | Reply | Permalink
Yes. And let's not forget the civics lessons that will be learned. As Watergate bred its generation, let the new prosecutions breed a generation of citizens committed to principled government.
November 25, 2008 10:14 AM | Reply | Permalink
As always during a time of war, Congress' sole power is the power of the purse.
Whether a President violated the law is determinable in the courts, alone (and it's the Supreme Court and not the Congress which tells us what powers the "Constitution gives"). The most Congress can do is remove an offending magistrate by way of impeachment -- and it's too late for that.
It's over folks!
November 24, 2008 8:02 PM | Reply | Permalink
Indeed. And some of the very people who we now want to stand up and fight for justice are... the people who let it happen (and who opened the purse and kept it open).
November 24, 2008 8:25 PM | Reply | Permalink
Justice in a Nutshell: "What's good for the goose..."
Ellen: Unfortunately, you may be right. It may well be over, and mostly because the cowardly Congress of the last eight years abdicated its responsibility to defend the Constitution in real time. It would be pretty difficult for these same spineless sycophants to now hold Bush & Co. retroactively accountable for their crimes - unless, of course, they care to invite prosecution for their own dereliction.
If there was any true justice in the world, the correct scenario to terminate this travesty would unfold thusly:
** Noon, Tuesday, Jan 20th, 2009: Barack Obama is sworn in as President of the United States, declaring by oath to uphold the Constitution (as presently understood/implemented by our Government.)
** 12:05pm (estimated): President Barack Obama, using the Executive's recently assumed power to make such a declaration, anounces his official determination that GW, Cheney, Rumsfeld and other culpable characters are "enemy combatants."
** 12:10pm (estimated): GW, Cheney, Rumsfeld, etc., are "rendered" to an unknown offshore location where they will be held interminably and absent any habeus corpus or other rights enumerated in the Magna Carta or our own Constitution as written.
**12:15pm: Barack Obama repeats the oath of Office in a symbolic, poignant - yet remarkably substantive - recognition that this new Administration and those to follow will abide the Constitution as given to us by the Framers, as opposed to continuing any allegiance to the bastard morphrodite granted to us by Bush & Co. with the concurrence of the milquetoast 109th/100th Congress.
** Post-110th Congress: We never hear from or see GWB, Cheney, Rumsfeld, etc., ever again.
I assure you this is not merely a rhetorical suggestion. Imagine, if you will, what life has been like for any innocent "enemy combatants" who have been snared in this diabolical system of "justice" as created by Bush and his enabling apologists. Imagine what life has been like for the families of such innocents who wonder where their loved one and, in many cases, their family's breadwinner has been "rendered" to - or if they even remain alive, for God's sake. It is hardly too much to ask that Bush & Co. experience the same level of justice provided to the most aggrieved victims of this criminal debasement of Human Rights.
Ain't going to happen, I know. But I dream of this possibility of precedent being established wherein any future President would think twice before assuming tyrannical powers for him/herself to which he/she would not wish to be personally subject.
November 25, 2008 10:13 AM | Reply | Permalink
I can't deny this, you're right that this is about powers between the branches of government, it's about having a legislature that checks the executive and one that rolls over for the executive.
But this does muddy the issue, in a way. Both Democrats and Republicans let the administration get away with that. Many Democrats, when they were asked to either vote in favor or do nothing, voted in favor or did nothing. They passed the Patriot Act, they legitimized domestic spying after the fact, they voted for the war in Iraq and then to extend it again and again.
Bush didn't act alone, neither did his administration. How far are we ready to take this and who can we really trust to dig down to the truth?
November 24, 2008 8:05 PM | Reply | Permalink
Isn't at the heart of Bush's overreach--namely the idea of the "unitary executive"--the assertion that Congress has no right to oversee and restrain the executive by any means other than the budget? Would these people then consider a congressional investigation as anything but a farce?
What good would new laws do if the next conservative president will again assume the right to ignore Congress? A commenter above recommended laws to limit signing statements. Well, what about a signing statement that refuses to acknowledge the right of Congress to limit signing statements? I don't see the way out of this vicious loop.
I believe that those who do not repent must live under the constant cloud of punishment, otherwise they will come back. Make their names public, at the very least, create new precedent, stack the courts with judges who will honor the constitution. But will all or any of this save the spirit of the constitution? A democracy cannot survive without democrats.
November 24, 2008 8:31 PM | Reply | Permalink
Nixon's pardon is what led to this mess. Set a new precedent.
Let congress publically send the big names to rot in jail. Then take an independent commission with a chip on its shoulder and send it to root out every improperly appointed judge, punish every abuse of power, and while they're at it, bring to light every last minute underhanded rule change.
After that, however, the Obama administration will have to have its underpants so clean that lights shine out of their zippers.
November 24, 2008 8:56 PM | Reply | Permalink
In my opinion, a big part of the reason we're in the mess we're in is the malfeasance, corruption and downright overt criminality of the Bush Administration. If that was all it was about, it would be sufficient reason in and of itself to do something about it.
There are so many other important reasons to bring this mob to justice however.
If you think about the arc of Republican Executive Branch wrongdoing over the last 40 years, every incoming Republican Administration has built upon the criminality and imperial hubris of its predecessor. Watergate was basicly a two-bit burglary- it was the coverup that got Nixon in trouble. Iran-Contra (which occurred during the Reagan Administration but which Bush41 was involved in up to his eyeballs) was worse, because it was a systematic defiance of the will of Congress.
Likewise the multifarious schemes of Bush43 went far beyond anything that the political operatives in the Nixon, Reagan or Bush41 Administrations ever contemplated.
The thing any sane person should remember is that Republicans will come back to power someday. When they do they will build on the criminality of the Bush43 Administration.
It can be worse, and we don't go after the criminals, next time it most definately will be worse.
November 24, 2008 9:24 PM | Reply | Permalink
As posted on a thread below, before
pointing the accusatory finger (and that finger should be pointed especially vis-a-vis warrantless wiretapping, the lies that led us into the Iraq war and torture here and abroad) lead first by example by making a clear and concise promise to make the bailout completely transparent.
This would include a promise to disclose each and every bank receiving bailout money and disclosing each and every asset the government has purchased with taxpayer dollars, what company it was purchased from, what price the government paid, the price the comnpany initially paid, the price the government gets for it when sold, who bought it from the government and the method used to determine the government's purchasing and selling price, all in real time.
November 24, 2008 9:45 PM | Reply | Permalink
Ah, at the risk of seeming rude: investigate 911. There's a mother lode of cover up and things covered up. Why shy away from the touch stone?
November 24, 2008 9:47 PM | Reply | Permalink
The fact of the matter is that when laws are knowingly broken and the collective we, whether it is Congress or the people that they represent say nothing we are in fact condoning the illegal activity.
By saying nothing are condemning our future generations the same transgressions of which we ourselves have been a victim.
This is no different than the priests and bishops that covered up child molestation among the Catholic church. They allowed the practice of child molestation to continue.
We by saying nothing are allowing our Constitution to be chipped slowly away illegal act by illegal act. Three generations from now there may not be much of a Constitution left to protect.
November 24, 2008 10:14 PM | Reply | Permalink
What a 'sickening mess'.
Neither political party is going to fully investigatge the other . . . . WHAT ARE YOU PEOPLE THINKING?
"IN A WORLD OF UNIVERSAL DECEIT, HONESTY IS A REVOLUTIONARY CONCEPT" . . . there's is no
revolution brewing folks!!!!!!!!!!!!!!!!!!!!!!!!!
Read some history, folks.
KEEP DANCING AMERICA . . .THE PIPER CAN WAIT.
November 24, 2008 10:22 PM | Reply | Permalink
The sad fact is that the Constitution provides the remedy for criminals like Bush in the presidency. Congress is tasked to impeach such criminals. Congress chose not to do that, and we, the people, chose not to put sufficient pressure on our elected representatives to force the issue. The Constitution also provides the remedy for misfeasance by Congress - vote them out of office. We, the people, chose not to use that remedy either. The genie is out of the bottle and we can't put him back.
It is pretty obvious how this is going to play out. By the beginning of Obama's second term, Repubs will again control Congress. Obama will do something trivial and Congress will announce that no longer are they going to be anyone's patsy, so they will impeach him. This will go over with the public much like the Clinton impeachment did. The next Repub president will then be able to totally ignore the constitution beyond what Bush did (is that even possible?).
To summarize: some mistakes can't be corrected.
November 24, 2008 11:52 PM | Reply | Permalink
Hoppy,
See my reply to JF in the next post and ask yourself the questions I propose. Deep inside I know this needs to be corrected. But doing so probably will screw up the country more than we already are. I've called and emailed my senator and congressman multiple times to do this. I'm glad it isn't my job. It'd be like cleaning the filthiest shithouse you can imagine multiplied by a zillion times.
November 25, 2008 4:12 AM | Reply | Permalink
Bingo.
November 25, 2008 8:38 AM | Reply | Permalink
We have immediate problems that need the entire bandwidth of Congress and the Executive. The Judicial branch seems to be living up to its responsibilities recently. E.g, the restoration of habeas corpus. We've just experienced eight years, at a minimum, of failure by all three branches of government. This has been compounded by the abject failure of our supposedly free press.
We're on the verge of a second Great Depression, we're losing two wars simultaneously, the planet itself is in peril and God only knows if we'll ever see an independent fourth estate again (outside of the blogosphere).
I want justice and punishment as much as anyone out there. I'll settle for the truth being known and let history and the opinions of contemporaries be the judge. The handshake line at the E20 was an example of how Bush, Cheney, et al will be judged. Shunning is a powerful punishment.
Let's just get to the truth and be done with it. We all have some hard times ahead and need to get past our desire for vengeance. Vengeance belongs to someone else, if I recall correctly.
A Truth and Reconciliation Commission along the lines of Mandela's post-Apartheid administration is what is needed.
Don't fool yourselves into thinking that there weren't plenty of Democrats complicit in all that went on these last eight years. Do you think they'll stand up and admit their part?
TRC.
November 25, 2008 1:43 AM | Reply | Permalink
The truth of what has gone on would be great. However, were it known, there may be an obvious and lawfully unavoidable requirement to act upon what it may reveal.
I very much think congress is frightened of the gravity of events more than anything.
Assume, as a lot of what is already known would indicate, it can be demonstrated beyond reasonable doubt that the Bush administration jerked us around on Iraq intelligence. Given the events that followed and the American lives lost the penalty required by law would be necessarily severe. Congress knows full well it could truly mean life incarceration or worse for more than one person. Congress knows that in opening this can of worms the pressure to dump the entire contents on the table for all to see would be impossible to ignore. Take for granted Bush is a criminal. Done. Same for Cheney. Done. What of Pelosi's decision to take impeachment off the table? Is that because she knows things or because she doesn't want to know things? I find it absurd that a sitting speaker would arbitrarily forsake a constitutional authority of such consequence.
The possibilities in all this has congress scared shitless. This is way more than a hot potato. It's a white hot coal that could burn down our entire government.
November 25, 2008 3:40 AM | Reply | Permalink
Nagging at the back of my mind is an idea: There will be no formal punishment for the Bush gang - that is probably permanently "off the table". But, informing the public is of such importance that even rescuing the economy may be secondary. What good will it do to rescue our economy if the voters just elect another corrupt idiot like Bush, or most any other current Republican, as president? The "death penalty" that is needed is not for the people involved, but for the ideology involved.
PBS is largely publicly funded. It is a quasi arm of the government. As a brainstorm idea, Congress should appropriate the necessary funding, and offer the necessary laws to make PBS reporters and investigative staff dig up the truth about the last 8 years, and televise it. I don't mean a 7:00 a.m. Sunday telecast either, I mean a weeks long series, say three nights a week, and with production quality to ensure a good audience, for about a month or longer.
Ideally, the "free press" here would do this, but we have no "free press" in any meaning of the word. The press is complicit in what happened for the past 8 years. Only an entity like PBS, with young, bold, persistent researchers, writers, and staff can do this.
A "truth and reconciliation commission" won't work, because the members will be old timers, with big reputations, but much bigger survival instincts, who will censor what they report.
November 25, 2008 1:02 PM | Reply | Permalink
What those "others" refuse to see, or admit to, is that one leads into another. Clinton didn't go after Daddy and his abuses and was rewarded by...
This is what happens when these folks aren't forced to pay for their excesses.
Congress reasserting itself would be fine, except that might very well wind up right back where we started form in the 90s: especially after 1010.
I'm sorry. This has been long overdue. I suspect it may be too damn late. Frankly, if it were up to me... after what they refuse to give others: a fair trial ...I'd willingly offer to flip any switches, pull a trigger, shove in the needles myself, if asked. I'm one who believes the death penalty should be like abortion: rare but... And IMO that's exactly what at least a select few of these traitors deserve. We'd have to see what comes out in the trials first.
Is Cheney's shotgun available? Ah, irony at the end of a barrel.
November 25, 2008 8:31 AM | Reply | Permalink
I wanted to make a big thing about the oaths we make to our Constitution and the People of our Nation, but now I am side-tracked - here's how. When I was 18 years-old, I enlisted in the US Army and swore an oath to our sovereign, the Constitution of the United State of America, which included, to "obey all lawful orders. . ." I looked-up the enlistment oath, and I was absolutely floored, the oath has changed from swearing your oath to the Constitution to the President personally. They have removed the word "LAWFUL" orders to "...the orders of the President of the United States..." When the "orders" were qualified as "lawful" the Constitution, Treaties and Laws are supreme. Whereas, by removing this all important word, "lawful", the whim of the President is supreme, making it an oath personally obligated to the President. That should scare your pants off. Does anyone know when this changed?
In 1984, I had a conversation with my Platoon Leader, a 2nd Lieutenant, and I was a lowly E-5 buck. I was on my first overseas assignment coming from an airborne special operations unit. Tons of training and considered elite, the only one at this posting. Anyway, we were talking about the finer points of being a soldier when we got around to the laws of war. I, without any wavering, told the Lt. that I would put a bullet between his eyes if he tried to make me obey an unlawful order. Humm, you can kind of get away with talking like that when you're trained to such a high-level when among "legs". So, the Lt. asked me where I came-off thinking I had a right to determine what is unlawful. My answer was clear in my oath where I was only obligated to obey lawful orders with the addition that if I were not to be able to do so, why did my Drills go to such extended laws-of-war training at Ft. Benning. Anyone remember the Nuremberg Trials, where "I was obeying orders" defense were rejected and more recently, Lt. Calley where a similar defense failed with respect to the My Lai Massacre in Viet Nam. Strangely enough, my Lt. wound-up agreeing with me.
Apparently this is no long the case. I had always wondered why those MPs at Abu Grab never said to their superiors that they were unable to comply since it violated the Geneva Conventions and the Laws of the United States. (Constitutionally, treaties are second only to the Constitution itself in supremacy and above ordinary statutes). I thought they had been convicted because they obeyed unlawful orders and were held accountable to that. With this new oath, had they disobeyed, they would have no defense in the law. So those National Guard MPs did nothing wrong and it is a outrage they could be convicted. My guess is that the Court Martial panel seated officers that had taken the earlier, "lawful" oath and did not appreciate the handcuffs of the new oath. The only criminal here then for all the war crimes committed seats square on the President of the United State alone, per the enlistment oath.
As a former soldier and patriot, I could never re-enlist because I could never take that oath.
I love this country and the Constitution and I just do not know how we came to this, nothing less than a dictatorship, maybe not dictator for life, but none-the-less a dictatorship. Please Congress, remedy this and restore the Constitution.
November 25, 2008 1:16 PM | Reply | Permalink
I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. (So help me God.)
I read the language to say that only "orders" which are legal under regulations and the UCMJ -- whether those of the President or of superior officers -- are to be obeyed.
November 25, 2008 5:18 PM | Reply | Permalink
Let congress publically send the big names to rot in jail
Sorry, *can't do that.
The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex post facto Law will be passed." ...
http://en.wikipedia.org/wiki/Bill_of_attainder
*Save us, Baltazar Garzon, you are our only hope...
November 26, 2008 12:37 AM | Reply | Permalink