Congress and the Constitutional Coup d'tat

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by Dean Lawrence R. Velvel by Dean Lawrence R. Velvel

Almost daily it becomes ever more clear that we are faced with an attempted constitutional coup d’état, an attempted constitutional revolution. It is spurred on by the Yale flunk-out, Dick Cheney, and his personal minions. Its flanks are guarded against the threat of jail by once and sometimes still secret (and in reality indefensible) legal memos from intellectual Guy Fawkeses who graduated from law schools like Harvard and Yale but seem not to have learned the basis of our constitutional order there. Led by Cheney, protected on his flanks by Fawkesian legal outriders, the “profoundly mediocre man”1 who is President seeks to become all-powerful in the name of protecting his subjects, the citizens of the United States.

To protect the subjects he invokes the Commander-in-Chief power, though this was placed in the Constitution for the exact opposite purpose of protecting us against military authority by making the military subordinate to the civilian, as Justice Jackson famously wrote in the Youngstown Sheet & Tube case of Korean War days. (“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.” (Emphasis added.)) The profound mediocrity who is President invokes his revolutionary claim of constitutional power not for a time that is limited, as wars like the Civil War and World Wars I and II were certain at their inception to be limited in time, be that time two or three or four or five years. No, he invokes it for a war that he says is unlimited in time, a war that may not end in our lifetimes because terrorists – as the Bible or some writing says of the poor – you shall always have with you.

Protecting us against dangers by revolutionarily changing the constitutional system to one based on executive supremacy – precisely the supremacy which the framers whom he and his henchmen love to cite waged a revolution to throw off – the President says that if it is necessary to secretly kidnap people in Europe and ship them to Uzbekistan, where prisoners are boiled, or to Egypt or Syria or other places where they are tortured in other ways, he can order this even though there is a decade-old federal law under which it is criminal. He says that, if it is desirable for Americans themselves to torture real or supposed enemies to obtain information, he can order it though this too is a federal crime when done abroad, as has regularly occurred. When signing the recent bill containing the McCain prohibition against torture, he says that this is subject to his power as Commander-in-Chief. Translation: he can order torture, despite the McCain law, if he wants to. He attempts, when signing the law that contains the McCain bill, and when signing other laws too, to vastly alter 200 and more years of law and practice by seeking to have laws interpreted not in accordance with the intent of the Congress which enacted them, but in accordance with the often very different intent of the President who signed them. He says that, if it is desirable to run secret prisons in unidentified foreign locations, he can order it. He says that, if it is necessary to engage in electronic surveillance of American citizens within the United States (which, we now know, was begun by the NSA even without his order), he can order it although there is a statute that was enacted to prevent this because of horror at its prior occurrences.

Do you doubt for one moment that, should he think it necessary to secretly pick up you or me or any one else, and to beat the crap out of us in jail to try to get information to protect our fellow subjects, he will order it? Do you doubt this for a moment in light of the already existing record, not to mention what we may not yet know about?

In the midst of this constitutional revolution, this constitutional coup d’état, comes Sam Alito. There are a number of things to be concerned about with regard to a potential Justice Alito. But some of the media, and perhaps even members of the Senate Judiciary Committee, have begun to recognize that probably the most dangerous, the most worrisome, possibility of all is his apparently favorable view towards expansion of Executive power. That is something about which he should be questioned intensely, and if he is unwilling to say that he is against such expansion, and to say that he will vote against such expansion and the consequent denigration of Congress' authority to prevent it, then he should be rejected by the Judiciary Committee and, if necessary, by the full Senate. If necessary, his nomination should be filibustered. The gang of fourteen who forged the recent compromise on the filibuster recognized that a filibuster could be warranted in suitable circumstances. If the possibility of adding a Justice who may vote in favor of the Bush/Cheney constitutional coup d’état is not such a circumstance, it is difficult to know what is.

It has been said here before, in a posting of November 4, 2005, that Senators, when questioning Alito, would do well to avoid the normal Senatorial blowhardism and to instead ask sharp, short, concise questions. Ten examples of such questions were set forth, and similar questions that Senator Specter had previously sent to Harriet Miers (remember her?) were appended. Senators would also do well to demand specific answers to short, sharp questions, instead of allowing Alito to get away with the dodges, vanilla crapola, and reverse blowhardism so common at Senatorial hearings and previously employed to wonderful effect by John Roberts. The media have indicated recently that some Democrat personnel claim that piercing, appropriate questions have been prepared. Let us hope so. But the media have also made clear that Senators are going to run into a problem.

Alito has been undergoing extensive murderboarding (not to be confused with waterboarding). In this process, legal experts, often quite brilliant ones I am sure, have been asking him questions that Senators might ask, have no doubt been “grading” his performance, have been telling him what he might say rather than what he did say, etc. As one who occasionally used to prepare lawyers for Supreme Court oral arguments, I can tell you that that is how the murderboarding process works.

Alito, it is reported, has sometimes confounded even the expert, no doubt oft brilliant, murderboarders by telling them that their questions are ambiguous. If he can confound these experts with such a tactic, what can we expect from Senators, from blowhards who, the Alito supporters point out, are often doing no more than (and often are incapable of doing any more than) reading from talking points prepared by their staff.

To claim (often spuriously) that a question or statement is ambiguous, to accordingly demand that terms be defined, is the oldest trick in the book of lawyers and academics who don't want to answer questions. The questioner gets tied up – even gets tongue-tied and starts sputtering – trying to clarify his supposed ambiguity or to define his supposedly inadequately defined terms. His opponent argues with him about the interpretation or the definition, they mutually go off on a long tangent, and the question never is answered. Senators must avoid this at all costs.

If memory serves, it was in the Roberts' hearings that it became obvious to this writer that the response that will allow Senators to overcome this ploy is simple, so simple that Senators surely can do it. The response is to say, “Judge Alito, if you think the terms need to be better defined, define them as you wish, tell us your definition, and answer the question.” Then, after Alito answers the question, if he has interpreted it in some way that is false or renders it innocuous, or if he has defined terms in a way that is false or innocuous, all the Senator has to do is to say “Well, Judge, you interpreted the question to mean X or you defined a term to mean X. Suppose we interpret the question or define the term to mean Y. Now what is your answer?” In this way Senators can easily and quickly dodge the nominee's dodge that a question is supposedly ambiguous or a term is supposedly not sufficiently defined, will not get side-tracked by such ploys by the nominee, and can force answers when the nominee might well prefer to duck the question if he could get away with it.

Finally, given what we have been learning since the posting of November 4th, which contained a list of ten short questions (plus appended ones from Specter), let me now add a few more short questions to the list of those that Senators could ask:

  1. Do you believe that the Commander-in-Chief power, contrary to Justice Jackson's view, gives the President the power to ignore a Congressional statute? If so, in what circumstances?

  2. Do you believe the Commander-in-Chief power gives the President the power to override Constitutional rights? If so, in what circumstances and to what extent?

  3. In regard to questions one and two above: Can the President authorize kidnapping at home or abroad if he thinks this is desirable or necessary?

    1. Can the President order torture at home or abroad if he thinks this is desirable or necessary?
    2. Can the President order warrantless electronic surveillance at home or abroad if he thinks this is desirable or necessary?
    3. Can the President order American citizens to be jailed indefinitely if he thinks this is desirable or necessary?

  1. a. If the President chooses to say that a war on terrorism is continuing, how long can he exercise power that is granted to him by Congressional statute for the purpose of fighting that war? If there are no attacks against us for two years, can he continue exercising the power? What if there are no attacks for five years? Ten years?
    1. Can he continue exercising the power granted by Congress until and unless Congress enacts a bill to withdraw it, even if this takes 20 or 30 years?
    2. (c). What if Congress votes to withdraw it, but the President successfully vetoes the bill withdrawing it and Congress cannot muster the necessary two-thirds in each house to override? Or, what if one house overrides but one-third plus one successfully oppose an override in the other house?

  2. a. Can a President's intent when signing a law detract from, counterbalance or override Congress' intent when passing the law?

    1. Does the President's intent when signing the law have any effect whatever?

Note

1 A blogger and newsman named Bill Gallagher recently said:

This profoundly mediocre man tells us how important he is to our national safety. He and his handlers have done a marvelous job erecting a wall between the reality of his failures and the myth of his achievements, which the corporate media peddles as truth to the masses.

Bush marched in and left disasters in every business enterprise he ever touched. His daddy’s pals repeatedly bailed him out of trouble. Shrub was a flippant frat boy who grew into a serious substance abuser, but made a small fortune from his family’s influence and corporate welfare.

Dean Lawrence R. Velvel [send him mail] is an honors graduate of the University of Michigan Law School, has practiced law in the public and private sectors, and been a law professor. He is the author of the quartet Thine Alabaster Cities Gleam. The books in the quartet are entitled: Misfits In America, Trail of Tears, The Hopes and Fears of Future Years: Loss and Creation, and The Hopes and Fears of Future Years: Defeat and Victory. Visit his blog.

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