Perhaps on Jan. 20, 2009, we may become a democracy again. But a few things have to happen before that date, many of which I'm not so certain will occur, no matter who wins the election this November.
Last week, the U.S. attorney general, the lead law-enforcement official in the country, representing the citizenry, essentially said that if the president told him not to prosecute offenses made by his administration, that is what he'd do.
If this statement had been applied pan-historically, then there would never have been a Teapot Dome, a Watergate, an Iran-Contra, or even the whole Ken Starr 10-in-1 sideshow from Whitewater and the travel office to Monica Lewinsky. Who knew that Janet Reno could have just told the Republican Congress of the 1990s that no, she wouldn't enforce any subpoenas, name any special prosecutors, empanel any grand juries, answer any questions, or honor any requests that might infringe upon the privilege of the president?
In a House Judiciary Committee hearing on Feb.7, Attorney General Michael Mukasey was asked by Rep. Robert Wexler (D-Fla.) if the Department of Justice would enforce subpoenas levied by Congress against members of the administration--in this case, Harriet Miers and Karl Rove. Mukasey's answer, in short, was "no."
Wexler asked for a rationale, and Mukasey answered, according to a transcript posted at TalkingPointsMemo.com, "I should say that there is a long line of authority, going back several administrations, back to the Clinton administration and beyond, that says that the enforcement by way of contempt of a congressional subpoena is not permitted when the president directs a direct adviser of his, somebody who directly advises him not to appear or when he directs any member of the executive not to produce document[s]." When Wexler asked Mukasey if he could name one individual the Clinton administration had instructed not to appear before Congress, the attorney general couldn't.
Mukasey also decided on his own that even if the United States had waterboarded prisoners (as we now know for a certainty that it has), his Justice Department won't investigate it. According to Mukasey, anyone who waterboarded a prisoner was doing so under the aegis of opinions written by that same Justice Department, and that would tell interrogators in the future that the department itself was not consistent and its opinions would not be reliable.
Same thing with warrantless wiretapping--we told them to do it, therefore it can't be wrong, because we told them to do it, and we would never tell them to do anything illegal. If it were illegal, it can't be illegal, because we were the ones who told them to do it.
President Bush pulled off another little-noticed event right at the end of January that dwarfs the stunning statements made by his attorney general: He declared that the constitutional authority of the president allows him to bypass part of the Constitution--Article 1, to be exact.
When Congress passed the National Defense Authorization Act of 2008, the House inserted a provision that prohibits use of federal money to create permanent military bases in Iraq. As any schoolchild with a decent grounding in civics can tell you, bills that deal with money originate in the House of Representatives, which is why it is said that Congress has "the power of the purse."
This was almost the downfall of Ronald Reagan, as the Iran-Contra scandal came about as his administration violated a similar provision that said that no money could be used to support the Nicaraguan contra movement. That was the 99-word Boland Amendment, and because of it, several administration figures went on trial, resigned, or were pardoned right at the end of George H.W. Bush's administration.
But apparently times and the Constitution have changed, because this President Bush added a signing statement to the National Defense Authorization Act, saying that the statute doesn't allow him to do his job.
"Provisions of the act . . . purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief," the Bush signing statement says. "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."
So in the space of two weeks, Bush has said that he can torture with impunity, that his people cannot be summoned or even investigated, that he can wiretap Americans at will, and that Congress cannot pass laws that interfere with his authority as president, despite the fact that those laws are fully in line with Article 1 of the Constitution.
Perhaps, in 2009, we may have a democracy again. But the way things are looking, the last time Americans faced someone named George who claimed this much unwarranted authority over the lives of his people, it required a Declaration of Independence and a war. It seems too much to ask for a simple thing like an impeachment to do the trick. H
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