Senator Dodd,
Thank you, Senator. Thank you for doing what so few have these last few years: standing up for the Rule of Law. The Rule of Law doesn't have a big office on K Street, nor does it result in much juicy gossip. And though, for a while, it seemed to have become a partisan issue, with the Republicans working against it out of loyalty to an Imperial President and Democrats speaking up for it to show their opposition to him, we see now that it has few partisans, that few will man the barricades for it.
And yet there you stand, not in Iowa or New Hampshire, but on the floor of the Senate, speaking for the Rule of Law, the principle that if you violate the law, commit crimes, you must face justice in a court of law. There you stand, for the principle that the law of the land and not the whims and dictates of the Commander in Chief, the Sole Supervisor of the Unitary Executive, the man with "Inherent Executive Authority" that goes back to the Divine Right of Kings, is what rules us. There you stand.
And with you stand the ghosts of all our forefathers who gave their lives for the precious documents that enshrine that principle. How has it come to this that so few of our supposed leaders, our representatives, our senior statesmen stand by you? How is it that Senator Reid can give lip service to the principle, but bring to the floor the version of the bill that casts it aside, yet again? How can he not honor your "hold" and yet honor Senator Graham's that protects the power to torture from the application of the Army's Field Manual?
We hear much about supporting our troops. How does it support them to throw aside the practices of the Field Manual which prescribes principles of international law that we expect the world to apply to them. How does it support our troops to set aside the Uniform Code of Military Justice in favor of secretive ad hoc "Tribunals"? How does it serve them to tear down the principles that we insisted on at Nuremberg, that the rule of law and not of vengeance and power of the victor to do what he likes with the vanquished? How does it honor our dead to set aside the Constitution, Federal statutes and those of the several States, the laws and principles they fought and died for?
How have we come to the point where the ability to torture gets more respect from the leader of the Senate, the supposed head of the Opposition, than does the defense of the principle that those who break the law must face Justice in a Court of Law? It seems surreal. Routinely these days you hear people invoke Orwell's 1984, and less often Brave New World. Occasionally, Animal Farm is suggested as shedding light on where we are, or wry comments are made about the subtitle, "How I learned to stop worrying and love the bomb".
But this week I feel like I'm caught in the President's Analyst. You may remember the film that satirized spy thrillers and conspiracy theories, by making the ultimate evil force that threatened our country that villain that everyone could hate: TPC -- The Phone Company. I feel like Dr. Sydney Schaefer, the titular President's Analyst who becomes convinced that everyone is spying on him, that all the spy agencies, and at their heart The Phone Company are out to get him. Back in 1967 we laughed at the film. It was an absurdist spoof. Today we seem on the verge of making it real, of making The Phone Company immune to prosecution, immune to civil suit, immune to inquiry as they secretively spy on us at the whim of a President whose lawyers tell him he is above the law or perhaps he IS the Law..
But, there you are. There you stand. Son of an FBI agent, Senator and Nuremberg prosecutor. Dark horse in a Presidential race where one freshman senator criticizes another for lack of experience. And while they thump their tubs, you stand and speak and act for the Rule of Law. Thank you Senator. Thank you from the bottom of my heart. As the descendant of a Scot who came to this country in chains, condemned to indentured servitude for standing against a self proclaimed "Lord Protector", only to win his freedom and settle in your home state, I thank you.
Thank you for remembering how hard fought our freedoms and privileges are in this country, thank you for standing for the the Rule of Law. It's not glamorous. It will not win you friends. It probably does you little good on the campaign trail. It will not endear you to K Street or to the leaders of your party. But thank you, and may Providence bless you.
Jim Burrows
Vox Libertas
A free voice
The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.
Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.
Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,
The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.
Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:
It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.
-- Glenn Greenwald in Salon.com
Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!-- PinkytheBrain in a comment in Crooks and Liars
I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".-- LJean a comment in Balkinization
But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?
By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.
First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.
This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.
With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.
No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court, the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.
So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?
Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment. Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?
This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!
The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.
The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.
Vox Libertas
A Free Voice, that cries Freedom!