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Fri

22

Jun

2007

Slap Doesn't Stick: Corrupted Congress Will Help Bush Escape Court Ruling
Friday, 22 June 2007 17:31
by Chris Floyd

Sidney Blumenthal adds a worthy comment to the recent ruling by the arch-conservative federal court that struck down George W. Bush's outrageous claims to tyrannical power. The court recognized what we have been saying here (and elsewhere) for years: that Bush's claims, if accepted, mean the end of even the pretense of a constitutional republic in the United States.

However, Blumenthal also notes that the ruling has changed nothing "on the ground." Bush has not altered his policies in the light of this stinging rebuke from his own side of the ideological divide. In fact, just last week, one of his mouthpieces strenuously defended Bush's abuse of "signing statements" — his regular declarations that he is not bound by the laws passed by the people's representatives in Congress. The Boston Globe's Charles Savage, who almost alone in the corporate media has doggedly pursued this sinister practice, reports numerous specific instances of Bush's deliberate subversion of legislation. Questioned about the story, a Bush spokesman answered, in essence: "Yeah? So what? The Boss does what he wants to do, and that's the way it is. You savvy?"

The disgusting thugs who seized control of our government have been repeatedly unmasked. Their authoritarian pretensions and rampant lawbreaking have been repeatedly exposed in the media and by government insiders, and roundly condemned by numerous courts, including, as in this case, conservative courts packed with appointees of the Bush dynasty itself. Yet still, this gang squats in the White House, still they wield their earth-shaking powers, still they break laws and commit atrocities every day.


And Congress, the only institution in the country with the legal power to bring this monumental crime spree to an end, will not even attempt to use the tools provided to it by the Constitution to remove the perpetrators of high crimes from office. Richard Nixon was successfully impeached — in wartime — for offenses which, though serious, pale immeasurably in contrast to the Bush gang's crimes, which have put the very existence of the Republic in peril. [We speak here of the official charges against Nixon, not such monstrous transgressions as the bombing of Cambodia, etc., which went unpunished.]  Yet the leadership of this Congress will not even try to launch impeachment proceedings against the Bush Administration, which openly admits, even champions, its lawbreaking; they will not even make the effort to defend the Constitution and restore the nation's honor. Instead, they prefer to "run out the clock," and let Bush continue his unfettered depredations, let his moral rot spread even further through the government and through our society.

What an extraordinary situation. On the one hand, we have a tin-pot tyrant, discredited, deeply unpopular, increasingly delusional, his illegitimacy exposed, his political base shrinking — yet he remains firmly in power, waging a criminal war of aggression and actively moving toward another one, openly flouting the law of the land, and maniacally filling his cronies' pockets with loot. On the other hand, we have an opposition party that could draw upon the support of the vast majority of the public who oppose the tyrant's policies — yet it refuses to take up the one legal weapon it has to accomplish the people's will and turn the criminal out of office.

Here we see the rotten fruit of the complete corruption of the American political system by big money. The system has always been corrupt, of course — as are all systems of human government, to one degree or another; as Shakespeare noted 400 years ago, "tis often seen, the wicked prize buys out the law." But in the past few decades, big money has come to devour the entire system; there is no longer any alternative base of support for office-seekers other than the coffers of massive business interests and the wealthy elite. (Except of course when the wealthy elite deign to enter politics themselves, using their own money.) Such a system is bound to produce an army of mediocre time-servers, money-grubbing cowards, third-rate intellects — twisted characters bloated with self-importance and obsessed with self-aggrandizement. And aside from the handful of honorable exceptions that can be found in any political system, that's what we have now: a Congress of ignorant, money-grubbing timeservers grovelling after the elite — along with a large and growing number of the monied elite in office. To expect political courage from such a gaggle of overstuffed geese is like hoping a public toilet will belch forth gold bullion. It just ain't gonna happen.

But still, the court's ruling is heartening, if only for the years-late confirmation of what most sentient observers knew long ago: to accept Bush's perverted understanding of the presidency is to acquiesce in the murder of the republic.

Excerpts from "Imperial presidency declared null and void" (Salon.com)
In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal "war paradigm" acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly. If he were to speak up, given his seminal role in formulating the policy and his stature among the Federalist Society cadres that run it, his rejection would have a shattering impact, far more than political philosopher Francis Fukuyama's denunciation of the neoconservatism he formerly embraced. But this figure remains careful to disclose his disillusionment with his own handiwork only in off-the-record conversations. Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

On June 11, the U.S. Court of Appeals for the 4th Circuit, the most conservative in the country, issued a decision striking at the heart of Bush's conception of the presidency. In al-Marri v. Wright, the court ruled that Ali Saleh Kahlah al-Marri, a resident of Qatar, arrested as a student at Bradley University in the United States, accused of aiding al-Qaida, could not be held in indefinite detention as an "enemy combatant" and must be remanded to the civilian criminal court system. (Al-Marri, in an affidavit, claimed to have been tortured.) The decision acknowledged that al-Marri might have committed serious crimes. But the government's assertion that the president has "inherent constitutional authority," rooted in his "war-making powers," is a "breathtaking claim" contrary to U.S. constitutional law and history.

"The President," the court said, "claims power that far exceeds that granted him by the Constitution." This extraordinary decision, citing the Framers, declared Bush's actions — and his imperial presidency — null and void. It is worth quoting at some length:

Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants" ...

...In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: "[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln: Speeches and Writings 1859-1865 at 246, 254 (Don E. Fehrenbacher ed., 1989). The authority the President seeks here turns Lincoln's formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he and his successors may exercise as they please. To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them "enemy combatants," would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
...And yet, nothing changes. After such a stinging rebuke as the decision handed down by the 4th Circuit a reasonable president might well contemplate changing his approach. Instead, Bush digs in, doubles down, surges. ...The impulse for supporting the policy, on one level, remains visceral and virulent. Stephen Holmes, professor at the NYU School of Law, describes the concept of "mirror imaging" in his new book, "The Matador's Cape: America's Reckless Response to Terror": "If our enemies have renounced the laws of civilization, so will we. If they organized a sneak attack, then we will respond with a dirty war. If they terrorized us, we will terrorize them."

For some, this vengeance — "We need to humiliate them," according to Henry Kissinger — requires something more; it involves upholding faith that transcends law. On June 16, Associate Justice Antonin Scalia of the Supreme Court, at an international conference on torture and terrorism in Ottawa, Ontario, sought to resolve the question on a moral basis. His disquisition consisted of a defense of Jack Bauer, the fictional hero of the torture-porn Fox TV series "24." "Are you going to convict Jack Bauer? Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so. So the question is really whether we believe in these absolutes. And ought we believe in these absolutes." Thus, for this conservative jurist, torture, dramatized through popular entertainment, remained the same obsession with "absolutes" as it had been during the Inquisition, which after all developed the enhanced coercive techniques used today.
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