Democratic Surrender Monkeys

Unconditional surrender! That is the only accurate phrase to describe Friday's passage by the Democratic-controlled House of Representatives of the so-called FISA Amendments Act of 2008. This bill, the bastard child of House majority leader Steny Hoyer (Md) and Senate intelligence committee chair Jay Rockefeller (WVa) gives the Bush administration everything it wanted on the domestic spying front, and more! As Glenn Greenwald has pointed out, the bill gives to the administration what it could not have even hoped to obtain from a Republican-led House. It greatly expands the powers of the government to spy on Americans, and in its most odious sections grants sweeping immunity to telecom companies and their Bush administration allies for breaking the existing FISA law. It retroactively excuses, and attempts to put a stamp of approval on half a decades worth of administration law breaking. It does this by placing a so-called "requirement" on the administration that makes a mockery of the rule of law and the Constitutional separation of powers. Essentially, the bill requires that existing law suits be dismissed if the telecom companies simply show that they were directed by the President or his agents to carry out the spying, and/or that the administration "certified" that it was legal! Talk about handing the fox the keys to the chicken coop. This legislation grants to serial lawbreakers the power to decide legality, and reinforces the theory perpetuated by this administration that if the President says it is legal, it is! A more dangerous, and un-Constitutional precedent can hardly be envisioned.

Moreover, the bill provides for broad secrecy surrounding the dismissal of lawsuits, the government simply having to invoke the magical phrase, "national security," to shield the details of the law breaking from the eyes of the public. The section of the bill granting this sweeping immunity is entitled, "Protection of Persons Assisting the Government." Orwell himself would have struggled to come up with that one, but it was apparently duck-soup for the Democratic enablers of Bush administration lawbreaking.

Let's try and get our heads around the magnitude of this capitulation. It's not that easy, so stay with me. The Democratic-controlled House just handed this stunning victory to perhaps the weakest sitting President in history; a President that can barely maintain 25% approval ratings; a President whose Party is also now widely, and justifiably reviled and rightly fearful that they will be thrown from office in large numbers come November; a President and Party that have treated the Democrats with utter disdain and contempt for almost 8 years, who have called them "traitors" and most recently referred to their presumptive presidential nominee as an "appeaser" like those who appeased the Nazis. It is this President and Party that the Democratic leadership, over the opposition of more than half of their caucus, including many committee chairmen, handed such a victory! Politics is wondrous strange indeed.

What could be the mental calculus at work in the minds of such "leaders?" Indeed it is hard to fathom how the majority Party in the House could rend itself asunder so and snatch defeat from the jaws of victory. One is forced to conclude that there are basically two reasons for such a wholesale capitulation. First, the current Democratic leadership is largely beholden to the same Corporate interests as the Republican Party. Put simply, the big telecoms fill many Democratic coffers with cold hard cash. And if anything is clear from the status quo in Washington it is that money talks. So, it's simply too easy for them to grant immunity and not upset the apple cart, or perhaps the gravy train is a more accurate phrase in this case. Consider the signal this sends to many Americans, that Corporate money is much more important to the Democratic Party leadership than the Constitutional freedoms of their own constituents. This is a craven and cowardly calculation if ever there was one. Second, it seems that the senior Democratic leadership are still so fearful; so cowardly and fearful. They somehow believe that surrendering the rule of law will make them look "tough on terrorism." In fact, what is plain for all to see is that it simply makes them look weak, craven and without principles or honor. That is, it makes them look just like Republicans!

The reality here is far different from the "tough on terrorism" pretext being offered by the capitulators. Passage of this legislation will not do anything to increase security against terrorism. The existing FISA law was and still is entirely adequate to enable the government to obtain the necessary intelligence to protect the Nation. Moreover, this administration's actions in the so called "war on terrorism" have not made us safer. Far from it, their reckless foreign policy has only bred more fanaticism abroad, and they have neglected common sense strategies to strengthen our domestic security posture. Even in the face of mountains of current polling data suggesting that American's attitudes are sharply opposed to the direction that this administration and its Republican Party rubber stamp have steered the country, the fossilized and inept Democratic leadership still believe that in order to win elections they must look more and more like Republicans. Since it is now absolutely clear that they will never learn this lesson, perhaps because they ultimately share most of the same priorities as the Republicans, the final remedy must be to vote the whole pathetic lot of them out of office. If you are interested in helping in this regard, check out the campaign being organized by Act Blue.

Supreme Ideologues

With another 5 - 4 decision the Supreme Court has recently upheld basic provisions of the Constitution while simultaneously sending a stinging rebuke to the Bush administration's "enemy combatant" detainee policy. The Court was reviewing a challenge to the Military Commissions Act which had stripped habeus corpus rights from detainees in the wake of the Court's previous decision on detainee policies in Hamdan vs Rumsfeld. This was the third ruling over a six year span in which the Court has made clear that the administration's manufactured legal "system" surrounding detentions at the Guantanamo Bay gulag is un-Constitutional (read illegal). However, after each previous rebuke the Administration was able to work with it's Republican allies in Congress to pass legislation defying the Court's decision. Shamefully, the infamous Military Commissions Act that this most recent decision strikes down was passed with significant Democratic support as well.

Justice Kennedy, who has recently become the "centrist" swing vote on the Court, joined with the more liberal Justices; Ginsburg, Souter, Stevens and Breyer in arguing that, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” and asserting that the Court is the final arbiter of what the law is, not a self-styled unitary executive commander in chief. In many ways this decision was rather straightforward. The most relevant section of the Constitution, the so-called "Suspension Clause" (Article 1, Section 9, Clause 2), states, "The Privilege of the Writ of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The great writ is a cornerstone of English law, and came about as a response to the arbitrary power of English kings to exert the right to hold anyone for as long as they liked without ever having to explain to anyone why. Indeed, the drafters of the Constitution, having recently experienced the excessive and unjust powers of a king, in this case George III, felt strongly enough to enshrine the right to habeas corpus directly into the wording of the document. The clause is quite clear, the only exigencies that might abrogate it being invasion or rebellion, neither of which situation exists today by any reasonable interpretation of those words.

One might then reasonably ask how the Court could be so divided on this apparently basic issue? It essentially comes down to the idea that one either believes in the rule of law, or the rule of men. The four Justice minority in this case; Roberts, Alito, Scalia and Thomas, have left no doubt where they stand on this notion. They have consistently supported the "theory" that Mr. Bush as commander in chief is essentially the law, and can do as he pleases. They voted as a block in all the previous detainee cases, except for the Hamdan case for which Roberts had to recuse himself, since he had previously ruled against the habeas petition while sitting on the US Court of Appeals for the DC circuit. So, there can be little doubt what his decision would have been had he participated. This gang of four has consistently shown where their loyalties lie, not with the Constitution, but with a political party and it's extreme rightwing, neofascist ideology that is in thrall to power, whether it be executive, governmental (as in their own power on the Court), or the private power of corporations.

In his dissenting opinion, Chief Justice Roberts claimed that the Bush administration's detainee policy represented, “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” That these ostensible "protections" violate the supreme law of the land apparently carries no weight with Roberts. Moreover, the "procedures" put in place by the administration allow Bush to, by fiat, declare anyone an "enemy combatant" without a meaningful, independent judicial review. This is hardly the due process envisioned by the drafters of the Constitution when they added the Suspension Clause. And to think that we must suffer this Chief Justice for perhaps decades to come. While in his confirmation hearings Roberts pledged reasonableness and objectivity, his decisions on the Court since then suggests the exact opposite.

Of the other dissenting opinions that of Antonin Scalia was, not surprisingly, the most outrageous. Scalia argued that the decision, “warps our Constitution” and, went as far as to suggest that it will place American lives at risk, “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed,” he argued. Of course, the only thing warped and twisted here is Scalia's logic. That a decision which restores an important right guaranteed by the Constitution represents a "warping" of it strains credulity. And isn't it ironic that Scalia, who helped halt the 2000 Florida recount that ensconced Bush in the White House, should then argue that this decision will cost more American lives, when his 2000 decision helped to set in motion the disastrous Bush presidency, that has cost many thousands of American soldiers their lives, not to mention hundreds of thousands of Iraqis. We can be thankful that there are still at least five Justices with some commitment to the Constitution and the rule of law, and it should be absolutely clear that the country can no longer tolerate the appointment of political idealogues to the Court. The stakes are far too high for that.