Ich bin der Staat

Executive Uber Alles
Mon, 26 Dec 2005 00:00:00 -0800
By LAWRENCE R. VELVEL
The Usurpers of Our Freedoms
At stake in the so-called war on terror is longer just treatment of detainees, but the freedom of Americans.
Bush and company have very wrongly used the commander-in-chief power as a lever to make the President far, far too powerful, powerful far beyond anything intended by the framers, who created a government in which the legislature was to be the more powerful branch.
John Yoo has despicably abetted this process by writing intellectually corrupt legal opinions, which were to be used to shield officials high and low against the possibility of criminal prosecutions even though their acts plainly are criminal. The legal opinions, moreover, were classified, were all kept secret, in major part because Congress and the public would never stand for what is being done if they were to learn about it by reading the opinions
Congress has been ineffective and cowardly.
Bush has committed the impeachable felony of conspiracy to commit torture, but the media and the politicians refuse to discuss this. He should, however, be impeached for this felony.
The New York Times has apparently withheld information about various important subjects, and one wonders what those subjects might be.
Samuel Alito should be asked very specific, pointed questions about the extent of Presidential power.
In accordance with first amendment values, there should be reporters’ privilege when confidential sources alert them to evildoing by government, but not when confidential sources try to use reporters to further evildoing by government.
Bush’s claims of power all come down to a single overarching principle, articulated for him in legal terms by John Yoo, and articulated in political speech by Bush himself. That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war.
John Yoo said that such all-surpassing power comes from the commander-in-chief clause and cannot be limited by Congress. Of course, Yoo shamelessly distorts the commander-in-chief power, which was intended simply to put a civilian in charge of the military lest a general seek to take over the country and become dictator, and was not intended to make the President a dictator, was not intended to give him the dictatorial power that the framers were guarding against in a general.
Never has this been put more eloquently than in a passage in a concurring opinion written in the Korean War’s Steel Seizure Case by that most eloquent of all Supreme Court Justices, Robert Jackson:
His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.
Bush, of course, doesn’t write, and most likely doesn’t even read, legal opinions, whether from Supreme Court Justices or Department of Justice lawyers. (Opinions are more than one page long.) Bush merely says, echoing Yoo, that because he is commander-in-chief he can do whatever he claims is necessary to protect Americans. He also says that Congress’ authorization of the use of force allows him to engage in warrantless electronic surveillance.
Of no concern to Bush is the fact that legislators say they never even thought about warrantless electronic eavesdropping when considering an authorization of force (they were, after all, focused on military action, not surveillance); that people who apparently have read the Congressional history find no mention of surveillance, that there is a specific law against what he is doing. Ich bin der Staat, after all.
Attorney General Gonzalez, in Bush’s defense, says that a few Justices of the Supreme Court—not all—said in the Guantanamo case that the authorization of force means we can imprison enemy fighters. Therefore, concludes Gonzalez, the authorization also means we can wiretap citizens without a warrant. It does not seem to occur to this mental giant of an Attorney General that in every war one takes and holds prisoners, so that an authorization of force must mean you can do this. But why the authority to take enemy prisoners—an incident of every war—means you can also wiretap American citizens without a warrant, and why it means this even in the face of a contrary statute, simply escapes one who is not a hack henchman for Bush. On the other hand, L’Etat, c’est moi, so what a statute of Congress says is irrelevant.
The statements of people like Bush, Gonzalez and Cheney, and the so-called legal opinions of John Yoo, are not to be taken seriously from the intellectual standpoint. Indeed, one wonders if they are even seriously meant, since they are too stupid, too frivolous, to be intellectually serious. The true, underlying intended function of these claims, and particularly of the legal memos, is really something quite different.
The intended function is to provide a shield for Bush and company, down to the lowest CIA operative, NSA operative, or grunt, if someone were ever to think about putting them in the criminal dock for what they have done. The possible defendant, be he Bush on down to a grunt, could point to the legal opinions of John Yoo (and his one time boss, now Federal judge Jay Bybee) and say, “I cannot be fairly accused of a crime. There were legal opinions from high Department of Justice officials—opinions on torture, on surveillance [and possibly on God knows what else that we don’t even know about yet] that said what I was doing was legal.” It was, indeed, CIA personnel’s desire for protection—dare one say cover—that led to the torture opinions. Gonzalez recently pointed out that Bush had documents from lawyers all over Washington (as I believe Gonzalez put the matter) saying that what Bush was doing was lawful. Some NSA officials were very worried about the legality of the warrantless surveillance. Some of the NSA people were—and still are—so worried about its legality that they apparently wouldn’t participate in it and/or blew the whistle to The New York Times despite John Yoo’s classified memos claiming legality.
Once the story about the warrantless surveillance broke, Bush, Gonzalez & Co. came up with some other claims that in effect hold that the 1978 Foreign Intelligence Surveillance Act, which banned warrantless electronic surveillance, must be considered in Ron Zeigler’s deathless word—inoperative. There has been, it is said, a lot of technology changes since 1978. And a two minute phone call between terrorists can lead to hundreds or thousands of deaths.
But FISA allows the government to engage in immediate warrantless electronic surveillance as long as it thereafter seeks a warrant within 72 hours. All the new technology and two minute phone calls in the world can’t be quick enough to escape electronic surveillance once the latter has been applied immediately, without a warrant, with the only requirement being that the government then seek a warrant within 72 hours after starting the surveillance. The claims about the need for speed are just so much smoke. One cannot, after all, be more immediate than immediate, and the government is authorized by FISA to be immediate.
Nor need there be fear of lack of cooperation from the secretly operating Foreign Intelligence Surveillance Court, from which warrants need be sought. The court can and does act very quickly—once a judge held a hearing in his living room at 3 a.m. on applications for a warrant—and last year, it is reported, the court received 1754 applications for warrants and denied not a single one. From 1995-2004 the court received over 10,600 applications for warrants and from 1978 onward it has received nearly 19,000, and in this entire period it has turned down only four of the nearly 19,000 (all four in 2003, apparently). So, if there is to be a fear here, it is not that the court will be uncooperative, it is that the court is usually a rubber stamp. (Indeed, the head of the court is the pro-establishment Judge Colleen Kollar-Kotelly).
The only administration claim that makes even the slightest intellectual sense is one that amounts to saying that the FISA procedure was ignored because the government wanted to conduct surveillance that could not meet even the obviously minimal standards of a FISA court that rejected none of 1,754 applications for warrants last year and only 4 of nearly 19,000 since 1978. But this claim simply leads to the heart of the problem: it simply leads to the fact that, as has been said here before, it is now no longer the fates of our enemies that is involved, but rather the rights and freedom of Americans themselves.
For we are faced with an Executive, whose charge is led by the dumb Bush and the truly evil Cheney, that says it can do whatever it wants in the name of allegedly safeguarding America, and that whatever it does for this claimed purpose is therefore ipso facto legal regardless of whether it is in violation of statutory law, in violation of longstanding custom and precedent, or in violation of any reasonable conception of humanity.
If the President says it’s necessary to torture people to safeguard America, and even to murder some of them as part of the interrogation process in order to safeguard the country, then this is legal.
If he says it’s necessary to secretly kidnap people, apparently by the thousands, and secretly fly them off to other countries where they will be tortured, all as part of a process that is sanitized by calling it “rendition,” then this is legal.
If he says, it is necessary to engage in permanently warrantless wiretaps, then this is legal. And so on. Why, then, would it not be legal, if the President says it must be done to safeguard America, to pick up Americans off the street and beat the crap out of them (or worse) in prison in order to obtain information? Why wouldn’t it be legal, if the President says it must be done to safeguard our country, to wiretap two or three million people, or to break into their homes in order to steal their papers, computers, etc. in order to obtain information (like Nixon’s henchmen broke into the office of Daniel Ellsberg’s psychiatrist for this very purpose)?
Thus it is that today we find that our country has been doing things, many of them discussed above, that would have once seemed inconceivable, even in the darkest days of the Civil War or World War II. Because of the orders and opinions of Bush and his henchmen we have tortured and killed prisoners, kidnapped thousands (apparently) of people as part of the process that is sanitized by calling it “rendition,” have sent kidnapped people to other countries to be tortured, have run secret prisons in foreign countries, have secretly held various “high value” prisoners in compounds located God knows where, have conducted warrantless electronic surveillance on Americans, on false premises have started a war that has killed over 2,000 Americans and many, many thousands of Iraqis, and have done God knows what else that has not yet been disclosed.
It is little wonder given all this, and given claims that the President can do whatever he wants, that one believes it is democracy and freedom that have become at stake.
It was, I think, Germaine Greer who said a few decades ago that a person’s views are a cluster, that if a guy on an airplane told her what he thinks about one thing, she could almost surely tell you what he thinks about a lot of things. She was, of course, dead right. And the cluster of views held by Bush, Cheney, et. al., are really pretty rotten, as made plain by the roster of once inconceivable things we have now done. We did all these things because those guys claimed them essential and ordered them done. People who variously are and collectively include, a former drunk, a serial failure in business, a drunken flunk-out from Yale when less than two percent of Yalies flunked out, a draft dodger, a combat avoider, guys who have spent their lives getting ahead by pull, connections and family influence rather than brains and talent (which they don’t have), and guys who are just plain mean, nasty bastards are at the helm, and ardently believe in doing the terrible things we have done.
Are we supposed to not fear the possibility that there could already be more horrible stuff which we don’t even know about yet, or that in future more such stuff could be done? Are we supposed to not worry about this?
The New York Times admitted earlier this year that the paper had changed articles in response to concerns expressed in advance by the CIA and other government agencies. Since the paper would not disclose what articles these were, or what changes had been made, I wrote here that “For all we know, the excluded facts or details could be ones of enormous importance for the public to know. The possibilities will not bear mention; the mind reels at some of them.”
As indeed the mind should have. For now we know one of the stories that was not only changed, but was killed for a year: the story about the warrantless electronic disclosure authorized by Bush (and, as he himself has said, reauthorized by him 30 times). When it finally broke the story a few weeks ago, The Times said, in its lengthy article, that the government had asked it not to print the story, and it therefore had in fact delayed it for a year to do “additional reporting” (and then had omitted certain unknown details).
Imagine that: The Times, at the behest of the government, sat on this nation-shaking story for over a year without disclosing it. Does this not remind you of The Times’ failure, at government request, to print what it knew in the early 1960s about the impending Bay of Pigs invasion, the invasion which therefore went ahead because it had not been publicly disclosed and which proved to be a perfect storm of disaster?
No doubt The Times felt it was acting patriotically in both cases, but we know that its failure to perform its First Amendment duty led to disaster at the Bay of Pigs. And it is not unfair to suspect that bending its knee to the government for one year with regard to illegal surveillance will also prove a horrible mistake, just as its failure to question the government’s reasons for going to war in Iraq was a horrible mistake.
The Times did not disclose why it bent the knee for one year on the electronic eavesdropping story, and there has been but little notice or discussion of the matter in the media. When a newspaper, let alone the country’s leading newspaper, sits on a story like this for a year, instead of telling the public what it has every right to know and a deep interest in knowing because the nature of our governing system is involved and our freedoms are involved, when the nation’s paper of record sits on a story like this for a year, its conduct and the reasons for its conduct demand explanation and analysis.
There is one other matter that has been brought up here before and is vitally related to The Times story. That is the question of the reporter’s privilege of confidentiality.
It appears that one of the big reasons that The Times was able to learn about and report on the warrantless eavesdropping is that at least a dozen people in government agencies, including the NSA, were so worried about the legality and propriety of the eavesdropping that they were willing to talk to The Times on condition of being granted anonymity.
King George, however, has ordered an investigation. He wants to find out who these people were and clap them in irons because they revealed his illegal conduct. It is possible that one way he might try to learn their identities is by subpoenaing the reporters in an effort to force them to reveal their sources or to confirm or deny various pieces of information. If this were to happen, The Times should fight him to the death, for freedom of the press to perform its first amendment duty of revealing governmental misconduct to the people—the very duty mentioned by Justice Black in The Pentagon Papers Case—would be deeply involved, as derivatively would be the safeguarding of the freedom of citizens themselves.
It has been said before here that, in terms of the purposes of the first amendment, prominent among which is the revelation of governmental misconduct so that it can be stopped, there is a vast difference between governmental insiders revealing such misconduct to the press on an anonymous, confidential basis in the hope that it may thereby be stopped, as occurred in the electronic surveillance case, and government insiders using the press, on an anonymous, confidential basis, in order to further governmental misconduct, as Libby, Rove and Cheney have done on the Valerie Plame case. If we want to carry out the first amendment purpose of stopping governmental misconduct, there should be a privilege of confidentiality in the first case but not the second.
One suspects that the Times, as it should, will fight the government to the death if its reporters are subpoenaed in the warrantless surveillance case. For about a couple of months now, the paper’s news columns (like some other media too) have regularly given the reasons why sources who revealed particular matters did so only on condition of anonymity. It is regularly said in news stories that sources required anonymity because they were not authorized to speak about a matter, or because a matter was classified, etc. This likely is being done partly as a result of the heat that has recently been put on the media for its prior vast overuse of anonymous sources without ever mentioning the fact, let alone the reason for it.
But doubtless it is also being done to build a record, a public record, of all the information that the paper (like other media) could bring to the public only by granting anonymity to sources who otherwise would not talk. One builds a record for a reason. Here the reason almost surely is to have a conveniently available public record of the importance of confidentiality in bringing important information to people should there be legal proceedings seeking to force reporters to reveal sources’ identities or confidential information or documents, or should it prove necessary to seek state or federal legislation protecting the confidentiality of sources. So, as said, the Times (and other media too) seems to be preparing to fight if necessary, and one say more power to them in the warrantless surveillance matter, where our freedoms are at stake.
This brings me to the subject of Congress.
The institutional and individual rot in Congress has now been put on display in the electronic surveillance area. Here Congress was supposed to exercise oversight over the executive branch. The way this “oversight” was “exercised” was that a small number of legislators at the head of relevant committees would go to the White House, where Cheney and company would rapidly go through subjects that are claimed to be technical and complex. The legislators could bring no staff and were not allowed even to take notes—how could any self respecting human being accept a condition under which he or she is told, has it imposed on him/her, is ordered , that he/she is not permitted to take notes on a serious and difficult subject but is expected nonetheless to learn and exercise oversight over it.
In addition to being allowed no staff and no notes, legislators say they were unable to discuss what they learned with anybody , lest they violate rules of classification and secrecy. When one of them, Jay Rockefeller, wished to register concerns in writing, he could not even have a secretary type the letter lest the secretary see what he was saying, and instead he had to send a handwritten letter. (And when one NSA official privately mentioned his concerns to a Congressional official, nothing ensued because ”’People just looked the other way because they didn’t want to know what was going on.’”) How can grown men and women act so cravenly.
It has been said here many times that there should be impeachment because Bush and Cheney are plainly committing the felony of conspiracy to commit torture, which is punishable by up to life imprisonment and, being a felony, is an impeachable high crime or misdemeanor. No conservative has ever written or emailed to deny that they are violating the anti-torture statute, but thus far neither Congress nor the media have wanted to discuss this. Now Bush and Cheney are committing the felony of unlawful electronic surveillance in violation of the FISA, which is a felony punishable by up to five years in prison and is likewise an impeachable high crime and misdemeanor. (Senator Boxer says that she heard John Dean say that Bush’s recent admission about the surveillance is the first time that he, Dean, had ever heard a President admit to an impeachable offense.)
So now we know that Bush is guilty of at least two impeachable crimes. And many people think—not implausibly—that the distortions if not outright lies by which Bush, Cheney, Rumsfeld, et. al., took us into war are themselves impeachable as political (albeit not legal) high crimes and misdemeanors.
Investigations are being discussed and censure is being mentioned. These actions may be, almost surely would be, politically easier than impeachment, but nothing can really substitute for it as a vehicle for stopping gross usurpations of power and ungodly distortions of the constitutional plan envisioned by the founders whom Bush and his fellow right wingers love to (falsely) cite.
The confirmation of Samuel Alito should also be affected, although, like impeachment, this probably won’t happen even though it should happen. By rights, as it were, Alito’s confirmation hearings should be put off until after full hearings are held, perhaps by the Senate Judiciary Committee, into the question of the gross usurpations of power by the Executive. Otherwise, at least if one assumes Congress might impeach and convict Bush/Cheney, or at minimum will issue a formal censure of them, we are likely to get yet another Supreme Court Justice nominated by an unsurper to carry out his views, including views of presidential power. (If memory serves, the Republicans stopped Abe Fortas from gaining a higher judicial position when Lyndon Johnson, who nominated him, had become thoroughly discredited, and one is hard pressed to understand any principled reason why the situation should be different now.)
But, assuming as one does that Alito’s nomination hearings will go forward as scheduled, it is more important than ever for Senators on the Judiciary Committee to ask him sharp, short, penetrating questions about his views of Presidential power, questions of the type Senator Specter had submitted to Harriet Miers. It is similarly important that Senators demand full, candid answers to those questions, rather than letting Alito get away with the humbug they let John Roberts get away with, and that Senators reject Alito if his answers indicate that he would or might support, and would not necessarily vigorously oppose, the kind of constitutional distortions, the kind of overweening, freedom-destroying executive supremacy, sought by the usurper of power who nominated him.
We cannot remain a free country with the Bush/Cheney view of the Executive uber alles—a view at the opposite pole from the framers’ desire for a government where, precisely to avoid tyranny, the legislature is supreme as between the two political branches, and the Senate should not confirm to the Supreme Court a man who will not pledge to oppose this usurpation, this destruction of the constitutional plan.

Lawrence R. Velvel is the Dean of Massachusetts School of Law. He can be reached at velvel@mslaw.edu.
B.A., University of Michigan; J.D., University of Michigan Law School
Telephone Number: (978) 681-0800
Velvel @ MSLaw ● EDU

Lawrence R. Velvel is the Dean of Massachusetts School of Law and a professor of law. Mr. Velvel is a 1960 graduate of the University of Michigan and a 1963 graduate of the University of Michigan Law School, where he served on the law review and was elected to the Order of the Coif. He was a law professor from 1966-1978, first at the University of Kansas and then at Catholic University. He has been a partner in major law firms in Washington, D.C., and was the first chief counsel of an organization established to write United States Supreme Court briefs in support of state and local governments. He has been active in Supreme Court litigation, constitutional law, antitrust law and complex litigation. He is the author of a book dealing with constitutional aspects of the Vietnam war, of seventeen law review articles and of twenty-three articles for legal and daily newspapers. He has written thirty-three United States Supreme Court briefs, is editor of the MSL journal called The Long Term View, and serves as a moderator and executive producer of four MSL television programs, the legal series called “A Question of Law,” the non-legal, public policy series called the “MSL Educational Forum,” the topical “Issues In The News” and the book discussion show “Books of Our Time.” These programs are carried by television stations nationwide.

*This essay represents the personal views of Lawrence R. Velvel.