Belaboring the Obvious

Monday, July 13, 2009

Foxes used to be incompatible...

... with henhouses, but, these days, the foxes are deciding if the farmer can even look in the henhouse door.

Scott Armstrong, formerly of The Washington Post and co-founder of the National Security Archive, said during the latter's 20th anniversary celebrations that the Executive Branch expends the most energy trying to keep secrets from the public, the next greatest amount of energy keeping secrets from Congress, the next greatest amount of energy keeping secrets from other independent agencies in government, and the least effort trying to keep secrets from foreign governments.

That statement, delivered by Armstrong almost as a throwaway line, as a given, bears some close evaluation, since it's probably at the root of virtually all of the problems created by the Bush administration over the course of the past eight years, and of those problems as continued and reiterated by the Obama administration.

What it means, first and foremost, is that the power of government, across administrations and party lines and time, has become increasingly concentrated in the Executive Branch, and second, that the growing distance between the government and its citizens should serve as a warning that the very nature of representative democracy is changing, and not for the good. (A remark of an American ex-pat living in France in Michael Moore's "SiCKO" is instructive in this regard. When asked about the biggest difference between life in France and in the US, the answer was, approximately, "in France, the government is afraid of the people, and in the US, the people are afraid of the government.")

It didn't used to be that way, and the biggest changes have come about because of various presidents' "wars." The Cold War, the War on Drugs, the War on Terror. These "wars" are wars only in the rhetorical sense, and yet, each has signaled an increase in the power of the Executive to intrude into the daily lives of citizens and in the power of the Executive to keep secrets from the public. Those powers have been willingly transferred to the Executive by Congress (the first sign that representative democracy isn't working), often in exchange for promises to enable Congressional oversight which the Executive immediately seeks to subvert, and, in turn, Congress is all too often unwilling to apply sanctions when it discovers Executive transgressions. (Certainly, Republicans and conservatives effectively gamed the system of sanctions by pursuing a politically-motivated impeachment of Bill Clinton, thus staining the process with the taint of partisanship, which in turn enabled (and continues to enable) Bush's and Cheney's escape from retribution for far more severe crimes than lying about a blowjob. Despite this, even after the example made of Nixon, Reagan survived his time in office intact, even though impeachment was warranted for his actions related to Iran-Contra and October Surprise matters, on the purely political judgment of a few in Congress that Reagan was a "popular" president. The elder Bush certainly deserved impeachment for his arbitrary and self-declared war against Panama and for his part in manufacturing the circumstances behind Saddam Hussein's invasion of Kuwait and distorting the evidence leading up to the vote in Congress to approve what became the first Gulf War. Nevertheless, deciding on purely political grounds not to apply available sanctions on evidence of wrongdoing is analogous to jury nullification of law. Each time this has happened, successive administrations have been further emboldened to usurp power and break the law. The egregious excesses of the Bush/Cheney years are easily traceable to previous failures of Congress to not only limit the power of the Executive, but to intentionally overlook criminal behavior by the Executive, as well.)

The Founders, for all their prejudices and faults, did understand that the investiture of too much power in a single individual was a danger to liberty, and that's why the Constitution was written as it was. They had an aversion to kings--not only in name, but in deeds, as well. A careful reading of Article II of the Constitution leads one to the inevitable conclusion that the Founders meant the President to be an administrator of government affairs, an enabler of law duly authorized by the representatives of the people, and to act as the public face of the nation to other nations--and very little else. Particularly since WWII, conservatives, liberals, neoconservatives and neoliberals alike have sought to invest the President with great powers in foreign affairs, even though the original language of the Constitution in this regard says, simply, "he shall receive ambassadors and other public ministers," and "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;..." On the latter, the construction of the sentence suggests that "advice and consent of the Senate" should precede the making of treaties, and yet, today, there are repeated examples of private arrangements made by the President with foreign nations of which the Senate has no knowledge and no opportunity to approve or disapprove.

What has facilitated this diminishment of the representative part of representative democracy, to a considerable degree, is the adoption of rules of secrecy, beginning with the National Security Act in 1947, and steadily expanded over time, and has been complicated by the various authorizations by Congress to invest the power of classification in the Executive alone, which has enabled the Executive to deny information on its activities even to the general body of the people's representatives in Congress, and at best, often only to the so-called "Gang of Eight."

Recent revelations of gross usurpations of power by the Executive, in the surveillance of U.S. citizens, the data-mining of private information, in detentions without due process and the torture of detainees, perhaps even to the establishment of a private assassination squad under the sole and absolute control of the Vice President (with the Vice President ordering the CIA not to reveal the existence of this shadowy operation to even those few in Congress entitled to know), all these unilateral and illegal actions undertaken by the Executive have escaped both adequate scrutiny and retribution because the Congress has extended rights to the Executive not endorsed nor ever anticipated as necessary by the writers of the Constitution.

For example, many commenters have identified the incestuous relationship of the Office of Legal Counsel in the Department of Justice with the White House as the principal means of facilititating illegality and indemnifying participants in these schemes from legal action, since the decisions of the OLC on the legality of Executive actions are, by law, binding on the Executive. In fact, though, this arrangement--in the absence of secrecy rules and the classification process--is quite workable, for this reason: anyone who feels themselves to be harmed by any Executive action can seek redress in the courts, and the underlying OLC opinion can be subjected to scrutiny by the Judiciary, which is the final arbiter on matters of law in government.

Now, when even access to the opinions of the OLC can be so limited by the classification process that even the leadership of the OLC can be excluded from the opinion-making, and when expansive notions of Executive privilege deny the rest of government the opportunity to examine the interactions of the White House and the OLC, the end result is precisely what the Founders so feared in a too-powerful Executive--simple and absolute tyranny.

Authoritarians in and out of government have maintained (and will continue to maintain) that this system of secrecy is necessary to protect the nation, and yet, if the rules of secrecy have effectively destroyed the fundamental principle of representative democracy, what's left to protect but the narrow interests of the wealthy elite and the power of insiders? When the Office of Professional Responsibility at the DOJ sought to investigate aspects of some of these programs, the President himself denied the investigators the necessary security clearances to do the review, a power conceded to him by Congress.

Current law says that the classification system shall not be used to hide embarrassing or illegal actions from public view, but, that's effectively an unenforceable proviso when no one can even know the existence of the actions, or see the unredacted opinions generated by the OLC to justify the actions themselves, and, when a whistleblower gives indications of illegality, conservatives in the courts defer to the Executive whenever presented with assertions of state secrets privilege.

We're the farmers and the chickenhouse is ours, not the fox's. Right now, there's a lock on the chickenhouse door that Congress, our farm managers, gave the fox, and that gift to the fox was the first indication that representative democracy was in peril. The situation has only gotten worse since. And it can only get worse in the future, unless Congress begins to value its obligations to the people. Congress can demonstrate its understanding of those obligations by, first and foremost, refusing to treat the President as if he were a king.


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