The Legal Pervert's Parade:
Executive Privilege Über Alles
by Chris Floyd
by Chris Floyd
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Just in case
you haven't noticed before, the United States of America has become
a presidential tyranny. We've been clanging this bell here (and
elsewhere) since
late September 2001, and have seen it confirmed over and over
through the years – with torture edicts, domestic spying, rendition,
secret prisons, indefinite detention of uncharged, untried captives,
etc. – and most recently and most baldly with the "Military
Commissions Act," which
enshrined the principle of arbitrary presidential power in law
and gutted the ancient privilege of habeas corpus. This was rubberstamped
by the Republican-led Congress last year – and is still standing
strong under the Democratic-led Congress.
But now the
Bush Regime has taken an even more brazen step into the light with
its frankly fascist doctrine of the "Unitary Executive." As
the Washington Post reports, the Administration's legal
perverts are getting ready to claim – openly, officially –
that the president's arbitrary will transcends every law in the
land, every section of the Constitution. All he need do is arbitrarily
assert "executive privilege" over any operation of government whatsoever
to remove it beyond the reach of any legal action, Congressional
inquiry – or criminal investigation. As Atrios notes, Bush
has already arrogated to himself the "right" to interpret the law,
through the "signing statements" he attaches to the bills he signs,
declaring that he will obey only those strictures of the law that
he sees fit. Now, the Administration is declaring that Bush need
not be bound even by those laws he does deign to acknowledge. As
the Post reports:
Bush administration
officials unveiled a bold new assertion of executive authority
yesterday in the dispute over the firing of nine U.S. attorneys,
saying that the Justice Department will never be allowed to pursue
contempt charges initiated by Congress against White House officials
once the president has invoked executive privilege...
Under federal
law, a statutory contempt citation by the House or Senate must
be submitted to the U.S. attorney for the District of Columbia,
"whose duty it shall be to bring the matter before the grand jury
for its action." But administration officials argued yesterday
that Congress has no power to force a U.S. attorney to pursue
contempt charges in cases, such as the prosecutor firings, in
which the president has declared that testimony or documents are
protected from release by executive privilege...
Mark J.
Rozell, a professor of public policy at George Mason University
who has written a book on executive-privilege issues, called the
administration's stance "astonishing."
"That's
a breathtakingly broad view of the president's role in this system
of separation of powers," Rozell said. "What this statement is
saying is the president's claim of executive privilege trumps
all."
This new authoritarian
claim grows out of the Congressional investigation of the illegal
politicization of the Justice Department – and the many instances
of perjury that the investigation has produced, as Bush's legal
perverts twisted, squirmed and lied outright under oath. Bush is
frantically seeking to keep his top perverts – such as Harriet
Miers, the loyal factotum who wiped the dribble from Junior's
jim-jams and handed him the state papers he didn't read (i.e., "Bin
Laden Determined to Strike in the U.S.," etc.) – from testifying
before Congress about the White House machinations to fire U.S.
attorneys for failing to file bogus cases against targeted enemies
of the Leader. The slimy trail of this scheme leads straight to
Bush's main minder, Karl Rove. Bush has already demonstrated that
he is prepared to sacrifice anything – including the nation's
chief undercover operation against the spread of nuclear weapons
– to shield his porcine puppeteer. So the new assertion of
authoritarian power – yet another slashing knife attack on
the dying body of the Constitutional Republic – is small potatoes
for this thug.
Yet the assertion,
when it comes, will be an important step forward in the revolutionary
remaking of the American state that the Bush Regime launched with
its judicial coup in 2000. For note well, this "breathtaking" assertion
– that Bush can stop any investigation of government wrongdoing
simply by claiming "executive privilege" – is not based on
Bush's role as "commander-in-chief in wartime," which has been the
perverted basis of previous edicts licensing torture, rendition,
indefinite detention, unrestricted domestic eavesdropping and the
whole sinister schmeer of Bush's Terror War policies. Even this
false "justification" – "stern but temporary measures taken
as a military necessity while the nation is in peril" – is
missing in the new assertion. The new power is seen as a permanent
right of the head of the executive branch: an entirely new structural
role for the president, who clearly stands above legislative oversight,
judicial restraint and the laws of the land.
There is nothing
"temporary" about this claim. (Of course, in practice, there is
nothing "temporary" about Bush's authoritarian "Commander" powers
either, since he claims the "war" which justifies them will go on
for decades, perhaps generations; but theoretically at least, these
"wartime" powers have a time limit.) Bush is saying that any action
taken by the federal government can be cloaked by "executive privilege"
as a matter of course, not as a wartime exigency. The Regime has
once again – and very deliberately – provoked a constitutional
crisis of the highest order. They are very clear about what they
are doing. They are overthrowing the laws, traditions and constitutional
structures that have maintained the American republic – imperfectly
but steadily – for more than 200 years. (As John Gray notes
in his
new book, Black Mass, the basic structure of the American system
has undergone almost no fundamental change since the adoption of
the Constitution, unlike the systems of almost every other state
around the globe, including such bastions of tradition like the
UK; indeed, says Gray, with the possible exception of Switzerland,
the United States could claim to be the oldest government in the
world.)
The Bush-Cheney
regime wants to change all that – and has been changing it,
from the very beginning. They believe that the time for democracy
and the rule of law has passed. Constitutional government and legal
accountability are "quaint notions" that can no longer be indulged
by a massive state with "responsibilities" for managing the affairs
of the entire world – and a myriad of "enemies" challenging
this benign domination. Only a Leader-state – run by a small,
secretive cadre of dedicated elites able to operate beyond any restraints
of law or outside supervision or public consent – is supple
enough to deal with the duties and challenges faced by the "world's
only hyperpower." This is their vision of government. It is a radical
transformation, in both substance and structure, from what we have
known before. It is authoritarian. It is arbitrary. It is ruthless,
corrupt, brutal and vile, but because it is clothed in modern garb,
in business suits, PR-packaged, slick and airbrushed, we don't see
it for the barbaric throwback that it is. As
I wrote in November 2001:
It won't
come with jackboots and book burnings, with mass rallies and fevered
harangues. It won't come with "black helicopters" or tanks on
the street. It won't come like a storm – but like a break in the
weather, that sudden change of season you might feel when the
wind shifts on an October evening: everything is the same, but
everything has changed. Something has gone, departed from the
world, and a new reality has taken its place.
To be sure, there will be factional conflicts among this elite,
and a degree of free debate will be permitted, within limits;
but no one outside the privileged circle will be allowed to govern
or influence state policy. Dissidents will be marginalized – usually
by "the people" themselves. Deprived of historical knowledge by
an impoverished educational system designed to produce complacent
consumers, not thoughtful citizens, and left ignorant of current
events by a media devoted solely to profit, many will internalize
the force-fed values of the ruling elite, and act accordingly.
There will be little need for overt methods of control.
The rulers will often act in secret; for reasons of "national
security," the people will not be permitted to know what goes
on in their name. Actions once unthinkable will be accepted as
routine: government by executive fiat, the murder of "enemies"
selected by the leader, undeclared war, torture, mass detentions
without charge, the looting of the national treasury, the creation
of huge new "security structures" targeted at the populace. In
time, all this will come to seem "normal," as the chill of autumn
feels normal when summer is gone.
We are already
living in that new reality. And the Democratic-led Congress has
shown no sign of recognizing the seriousness of the situation. They
refuse to assert the powers given to them by the Constitution for
redress of executive tyranny. Not only have they taken impeachment
"off the table" (while
keeping war – even nuclear war – against Iran "on the
table"), but even in the impasse over the subpoenas for Bush's
legal perverts, they are refusing to use the legal powers they possess
to compel obedience to the law. As the Post notes:
Under long-established
procedures and laws, the House and Senate can each pursue two
kinds of criminal contempt proceedings, and the Senate also has
a civil contempt option. The first, called statutory contempt,
has been the avenue most frequently pursued in modern times, and
is the one that requires a referral to the U.S. attorney in the
District.
Both chambers
also have an "inherent contempt" power, allowing either body to
hold its own trials and even jail those found in defiance of Congress.
Although widely used during the 19th century, the power has not
been invoked since 1934 and Democratic lawmakers have not displayed
an appetite for reviving the practice.
No, these
Democrats definitely have no appetite for concrete action –
as opposed to pointless stunts like their all-nighter over their
"anti-war" measure that would actually guarantee the long-term presence
of a substantial American force in Iraq – which was of course
one of the chief aims of Bush's invasion in the first place. (Sean
O'Neill makes quick
work of this ludicrous carnival here.) Their most likely response
to this latest authoritarian power grab will be weeks of hand-wringing
fulmination followed by months, if not years, of court action, as
the matter winds its way slowly to the waiting arms of a Supreme
Court dominated by Bushist apparatchiks. Meanwhile, the authoritarian
regime will roll on, growing ever more entrenched, more emboldened
and more radical. By the time this particular manifestation of the
Bush tyranny is adjudicated, we will almost certainly be hip-deep
in war with Iran – or under martial law following another terrorist
attack (of whatever provenance) – or perhaps both.
And if you
think this prognostication is too grim, too unlikely, or too exaggerated,
then you have been sleepwalking through the last six years.
July
21, 2007
Chris
Floyd [send him mail]
is the author of Empire
Burlesque: The Secret History of the Bush Regime.
Copyright
© 2007 Chris Floyd
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