For The Sake Of The Constitution

by digby

Al Gore has become the conscience of the Democratic Party. Following the lead of the new media, and the blogosphere in particular, he just laid out the case as to how the invertebrate Republican congress has sold out its constitutional duty to a president who sees himself as above the law and why this poses an unprecedented threat to our constitution.

There are reasons for concern this time around that conditions may be changing and that the cycle [of presidential overreach during wartime] may not repeat itself. For one thing, we have for decades been witnessing the slow and steady accumulation of presidential power. In a global environment of nuclear weapons and cold war tensions, Congress and the American people accepted ever enlarging spheres of presidential initiative to conduct intelligence and counter intelligence activities and to allocate our military forces on the global stage. When military force has been used as an instrument of foreign policy or in response to humanitarian demands, it has almost always been as the result of presidential initiative and leadership. As Justice Frankfurter wrote in the Steel Seizure Case, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

A second reason to believe we may be experiencing something new is that we are told by the Administration that the war footing upon which he has tried to place the country is going to “last for the rest of our lives.” So we are told that the conditions of national threat that have been used by other Presidents to justify arrogations of power will persist in near perpetuity.

Third, we need to be aware of the advances in eavesdropping and surveillance technologies with their capacity to sweep up and analyze enormous quantities of information and to mine it for intelligence. This adds significant vulnerability to the privacy and freedom of enormous numbers of innocent people at the same time as the potential power of those technologies. These techologies have the potential for shifting the balance of power between the apparatus of the state and the freedom of the individual in ways both subtle and profound.

Don’t misunderstand me: the threat of additional terror strikes is all too real and their concerted efforts to acquire weapons of mass destruction does create a real imperative to exercise the powers of the Executive Branch with swiftness and agility. Moreover, there is in fact an inherent power that is conferred by the Constitution to the President to take unilateral action to protect the nation from a sudden and immediate threat, but it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.

But the existence of that inherent power cannot be used to justify a gross and excessive power grab lasting for years that produces a serious imbalance in the relationship between the executive and the other two branches of government.

There is a final reason to worry that we may be experiencing something more than just another cycle of overreach and regret. This Administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential authority is exactly what our Constitution intended.

This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president’s powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President’s authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

This effort to rework America’s carefully balanced constitutional design into a lopsided structure dominated by an all powerful Executive Branch with a subservient Congress and judiciary is-ironically-accompanied by an effort by the same administration to rework America’s foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.

The common denominator seems to be based on an instinct to intimidate and control.

Yes. A president who can so easily toss aside international law, treaties and decades of mutual understanding is now showing that he looks upon the rule of law within our own country much the same way. We should not be surprised. It’s clear that this particular political faction has an instinct to dominate and control. It’s a facet of human nature and those whose personalities feature it strongly tend to gather together under the banner of authoritarianism.

The Enlightenment was in many ways a study of human nature and those who were educated in its ideas, like the founders of this country, used those observations to understand how power works. Knowing that some leaders will seek ever expanding power is exactly why the constitution was designed with its careful system of checks and balances and why the Bill of Rights was written. It’s a flaw in our species which, if recognized, can be held at bay by systemic roadblocks. That’s what’s being fiddled with here and it’s dangerous.

Gore went on to point out the obvious — that this (oft repeated on the right) aphorism “the constitution isn’t a suicide pact” in terms of islamic fundamentalism is absurd considering the threats we’ve faced in the past:

One of the other ways the Administration has tried to control the flow of information is by consistently resorting to the language and politics of fear in order to short-circuit the debate and drive its agenda forward without regard to the evidence or the public interest. As President Eisenhower said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.”

Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction. Justice Brandeis once wrote: “Men feared witches and burnt women.”

The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.

Yet, in the teeth of those dangers, they insisted on establishing the Bill of Rights.

Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment’s notice? Is America in more danger now than when we faced worldwide fascism on the march-when our fathers fought and won two World Wars simultaneously?

It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same.

He goes on to say that we must do four specific things:

1) demand a special counsel to investigate the wiretapping leaks. This is exactly the kind of investigation that should not be left in the hands of an executive branch appointee who approved the measures in question.

2) demand comprehensive hearings and go where the facts lead. I and others in the blogosphere have been calling for a select committee to invetigate the wiretap leaks so that we can have legal counsel rather than elected bloviators lead the questioning. This is absolutely necessary.

3) we must not rubber stamp the Patriot Act

4) demand that telecommunications companies cease and desist in their illegal invasion of Americans’ privacy.

The Liberty Coalition sponsored this speech today and it looks like they are a non-partisan group working on privacy issues. I’m all for that. Here’s their mission statement:

The Liberty Coalition works to help organize, support, and coordinate transpartisan public policy activities related to civil liberties and basic human rights. We work in conjunction with groups of partner organizations that are interested in preserving the Bill of Rights, personal autonomy and individual privacy.

The Liberty Coalition is concerned about the threat to Americans’ fundamental and inalienable rights. The Coalition is dedicated to upholding and protecting our basic rights to life, liberty and the pursuit of happiness. In order to accomplish our task, we seek to protect those freedoms as articulated in the Bill of Rights. We base our concerns on the fundamental values and principles of the Declaration of Independence and the U.S. Constitution, particularly the separation of powers and federalism, and Bill of Rights. These are also embodied in the 14th amendment, especially the due process and privileges and immunities clauses.

To accomplish this mission, the Liberty Coalition seeks to restore, maintain, and improve individuals’ right through developing a networked forum for information and policy education and advocacy. The Coalition examines and expresses opinions on legislation and other government actions that would, on the one hand, limit the rights of citizens that would, on the other, advance efforts to enhance citizens’ rights.

Our primary focus is on restrictions on privacy, autonomy and liberty related issue such as the Patriot Act, National Identification Cards/National Drivers License and government databanks. We are also concerned with medical and financial privacy and confidentiality, and work more broadly as appropriate The Liberty Coalition seeks politically and judicially to retain our liberty while increasing our safety.

When it comes to this issue of presidential overreach and government spying, the most effective action will be bi-partisan. (Townhall is ostensibly part of the coalition which I’ll believe it when they pull their noses out of Bush’s spidey hole.) But any conservative or libertarian with intellectual integrity should be on board with this. I can guarantee you that if a Democrat tried what Bus has done I would feel exactly the same way about it. These are not transitory partisan issues, they are fundamental American values.

If you didn’t get a chance to see Al Gore give his speech, at least read the transcript (via Raw Story.) He’s singing our song today. If he’s crazy then so am I and I’m proud of it.

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