The Legal Pervert's Parade: Executive Privilege ber Alles


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.