Monday, May 5, 2008

Yes, But Who Will Watch the Watchers?

President Bush likes to think history will remember him, and it certainly will, though probably not as he fantasizes it will. Unless blunder-prone foreign policy and economic collapses should one day become chic, in which case he may luck out.

But, for all his failings, perhaps the greatest stain his presidency will leave behind is the boot mark across the Constitution. Encouraged in his fantastical interpretations of presidential power--in practice, 'monarchy lite'--by Dick Cheney and David Addington as well as all the other usual suspects on his legal team, Bush has spent the last seven years doing his best to ensure that no President will ever have to answer to anyone again.

The problem lies not in disagreeing with the current President or opposing his policies, it lies in the understanding that the latitude and outright immunity to law Bush has claimed has unleashed the imperial presidency upon the nation, one that will still be around when someone of the opposite persuasion comes along. Thus, to acquiesce now because of agreement with Bush's policies is to simply forestall the inevitable period where someone else with whom there are sharp disagreements exerts his or her will devoid of even the slightest check.

Bush's Unitary Executive Theory--although, Cheney, not Bush is probably the impetus here--lies in the flawed concept that the writers of the Constitution were just joking when they created Congress or the Judicial branch. Believers in the theory rely principally on one passage in Federalist No. 70, while brushing aside nearly every other writing by the founders including the context from No. 70, itself.

This selective reading--paring down libraries full of text into a single passage that sort of supports their idea--has allowed them the luxury of believing that the Constitution was written by the leaders of a nation that had fought to rid themselves of a monarchy only to immediately start their own.

Indeed, one would be hard-pressed to find a single lawyer not having worked for the Bush legal team who accepts the premise of the Unitary Executive and its ominous implication of an unchecked Executive branch.

The obscure (in the general sense, not to veterans of the Nixon administration like Cheney) theory has been used almost at will by Bush to justify everything from his right to prosecute a war without Congress' consent, to suspend habeus corpus, to eliminate Congressional oversight, and to ignore torture conventions, both domestic and international.

Back in October, the House passed H.R. 928, the Improving Government Accountability Act, by a vote of 404-11. A significant margin, indeed, but the Senate bested them on April 23 by passing its own version unanimously. But, one fight was still lurking in the seemingly uneventful numbers.

Congress is close to enacting the most significant boost in three decades in the independence of the cadre of government watchdogs -- federal inspectors general -- but the lawmakers have retreated from a key change involving the U.S. Department of Justice.

The Senate on April 23 approved, by unanimous consent, S. 2324, the Inspector General Reform Act of 2008. But the bill passed only after the lawmakers agreed to an amendment by Senator Jon Kyl, R-Ariz., which, among other items, deleted a provision giving the Justice Department's Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against department attorneys, including its most senior officials.

Unlike all other OIGs who can investigate misconduct within their entire agency, Justice's OIG must refer allegations against department attorneys to the department's Office of Professional Responsibility (OPR). The latter office, unlike the OIG, is not statutorily independent and reports directly to the attorney general and the deputy attorney general.

In practice, the Kyl ammendment ensures that any investigations of top Justice officials would be done, not by an independent investigator immune from political termination, but by someone directly under the very people he or she is investigating. And nothing would legally prevent the official under investigation from having the investigator terminated.

Another significant difference between the House bill and the White House-sponsored Senate bill is that the Senate bill does not require cause for termination of an IG as the House bill does.

Under the House measure, inspectors would be appointed to seven-year terms and could only be removed from office for cause, such as neglect of duty, inefficiency, conviction for a felony or other inappropriate conduct. The House version also would require the independent watchdogs to submit their budgets directly to Congress in addition to the White House.

The White House complained that those requirements would encroach on the president’s constitutional authority to oversee executive branch employees and requests.

The new Senate bill includes no term limits for inspectors and would require the president’s budget to include how much money each inspector general requested and the amount recommended by the agency. The disclosure would allow Congress to see whether agencies are trying to hamstring inspectors by restricting budget funds.

President Bush has utilized signing statements in the past to simply wipe away parts of the law he doesn't like, but now it seems he has a few members on the front lines willing to save him the trouble.

That Bush was allowed to threaten a veto on a bill with 97.3% support in the House is outlandish, yet that's what happened. And Congress, strong-willed fellows that they are, simply asked the White House to strike from the House bill what it didn't like and include what it wished.

Somewhere, a 2nd-grade civics student is firing off an angry letter informing Congress that a 60% majority overrides a veto. 97% flies in just under the wire.

Like most erosion, the bleeding of the Constitution is a one-way street. One from which it will take a long time to recover. For Congress to continue bending to the will of a monarch wannabe is to perform a great disservice to the Republic its members are sworn to uphold. In this particular instance, it's not as if there was not enough precedent to deny the Bush administration its demands. Previous misdeeds are readily available.

President Bush personally blocked a Justice Department office from investigating the role of department lawyers in creating and overseeing the NSA's warrantless eavesdropping program, according to Attorney General Alberto Gonzales.

The revelation from the attorney general came as the department released documents sent late Monday night to Congress in which the chief of the internal unit, the Office of Professional Responsibility (OPR), repeatedly implored his bosses to grant him the security clearances to conduct his investigation.

And just in case someone might think the Bush administration was just protecting national security:

[At] the same time, "a large team of attorneys and agents" in the Department's Criminal Division had quickly been cleared to investigate the leak of information about the NSA program to the New York Times.

Further, the Civil Division, which would litigate legal and FOIA challenges involving the NSA program, got clearances for some its people; and, writes Jarrett, "Five private individuals who make up the Privacy and Civil Liberties Oversight Board" have been briefed on the program and given security clearances.

The pattern is clear. The granting of clearance had absolutely nothing to do with national security and everything to do with whose side the recipients were on. Performing oversight? No, thanks. Defending the program in defiance of law and logic? Jump on board. Have a look at some state secrets.

Those 'five private citizens' supposed to protect civil liberties? Well, of course, they are "appointed by and serv[e] at the pleasure of the President." Hardly a sign of neutrality, especially under Bush.

What's more, Bush's move was entirely without precedent:

In his April 21 memo [to Deputy Attorney General Paul McNulty, OPR chief H. Marshall] Jarrett writes [that] OPR, which was created in 1975 in the wake of the Watergate scandal, has never been prevented from initiating or pursuing an investigation, adding that OPR has conducted many "highly sensitive investigations involving Executive Branch programs and has obtained access to information classified at the highest levels."

The most recent success of Bush's perpetual push to completely eliminate even cursory oversight of the Executive branch is but one more shot across the bow of the Constitution and the Separation of Powers. Congress may have to start launching some volleys of its own if it would like to keep the Legislative and Judicial branches as more than mere window dressing.

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