When Warren E. Burger, Chief Justice of the United States (1969-1986), was Chairman of the Commission on the Bicentennial of the United States Constitution, he noted that the Declaration of Independence, the Constitution, and the Bill of Rights all ?had antecedents back to the Magna Carta and beyond.?Oh? How can a musty 800-year old feudal Magna Carta have any relevance for today?s hyper-active electronic age? Why, even our own 218-year old Constitution is showing some strains of age. Haven?t times really changed, especially since 9/11? (Doesn?t history pretty much suck?)
Well, the more things change, the more they stay the same. When the English barons cornered an inept and cruel King John at Runnymede in 1215, they established - perhaps unwittingly - two constitutional principles: 1) even the king?s executive power was limited by the laws of his realm; and 2) if he flaunted those laws he could be forced to observe them... or else.
These principles were confirmed as many as forty separate times by later kings, and led directly through the English Civil Wars of the 17th century to the American list of grievances in our own, 18th Century Declaration of Independence. In that document, the main complaints were usurpation of power by the king and his indifference to the historic rights of Englishmen. When it came time to create a framework or Constitution to govern the united former colonies, now called states, a chief concern was so to divide the sovereign power as to preserve liberty and prevent future usurpations. Said Alexander Hamilton in The Federalist Paper Number 47:
The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.
Given their suspicion of executive power, the Founding Fathers placed the legislature first in importance, in Article I of the Constitution (?All legislative Powers herein granted shall be vested in a Congress...?). Article I goes on for several paragraphs, the longest Article of all. In contrast, Article II briskly says ?The executive Power shall be vested in a President.? Article II then lays out the President's powers: "Commander in Chief of the Army and Navy of the United States,? receive Ambassadors, commission officers, and "take Care that the Laws be faithfully executed.? Most importantly, the President is required to "do what Congress has ordered " and to provide Congress with "Information of the State of the Union." That?s it for the executive. (Article III establishes the courts).
Thus was introduced for the first time in history the famous ?separated and divided powers providing checks and balances on the exercise of authority by those who governed,? to quote Chief Justice Burger.
This system, spare as it is, has served us faithfully for over 200 years, admittedly with a few strains. "Checks and balances" is intrinsically a dramatic and dynamic relationship, with power shifting from legislative to executive to judicial in an ongoing tug of war. In earlier times, when the new system was fragile and vulnerable to the world-wide ?divine right of kings? the judiciary under John Marshall took a firm hand. In the run-up to Secession and then after the Civil War, it was often the legislative which dominated. But in times of great stress, like the Civil War and World War II, the executive pulled more power. Always, the legislative or the judicial and sometimes both would rise up to curb overly ambitious presidents. Checks and balance worked.
But not today.
Back in the early 1970s, Richard Nixon made a strong run at the imperial presidency in ways both silly and serious. Silly when he tried to dress his White House Guard in royal shakos and glitter, serious when he illegally wiretapped American citizens. He claimed the wiretapping was for reasons of national security, but when his political motives became obvious Congress began proceedings to impeach him and he resigned, the first American President ever to do so.
On December 16, 2005, the New York Times published a shocking report that President Bush in 2002 issued an executive order authorizing the National Security Agency (NSA) to spy on Americans without warrants. This order completely ignored the procedures of the Foreign Intelligence Surveillance Act (FISA), which had been expressly passed by Congress after Nixon?s fiasco to provide a president with rapid, secret warrants for national security purposes. As more details surfaced it became apparent that the FBI, the New York Police Department and other police were spying on an ever widening circle of American citizens, including even some peaceful Quakers, and, in fact ?data mining? literally millions of calls. Anyone anywhere anytime might be under surveillance.
In April 2004 George Bush made a strange, spontaneous comment in Buffalo during his re-election campaign: ?...anytime you hear the United States government talking about wiretap, it requires? a wiretap requires a court order.... constitutional guarantees are in place.? Bush was lying, and he knew it, having ordered the still on-going warrantless wiretaps two years before. In truth, if Bush had required additional speed and authority from Congress, he could have asked for it and doubtless received it, but deliberately he did not. Why not? Some, like Ray McGovern, a veteran analyst with the CIA, hint that perhaps Bush was also using the spying for political purposes on his perceived domestic opponents, and knew that Congress would not authorize that, anymore than it did for Nixon. Who knows.
President Bush clearly believes offense is the best defense. At first, he stonewalled, then he ordered an investigation to discover who leaked the true story of his malfeasance. Attorney General Gonzales claimed Bush had authority to bypass the law anyway because he is Commander in Chief, an argument Nixon tried and could not make stick, but which Dick Cheney, then President Ford?s Chief of Staff, never forgot in the aftermath of Nixon?s resignation.
Lawrence Wilkerson, Colin Powell?s former Chief of Staff at the Department of State, says that an inner group self-named ?the cabal? around Dick Cheney and Donald Rumsfeld seized on 9/11 as an excuse to invest the presidency with maximum, overriding powers, which they felt Nixon had lost. The ideology is called the unitary executive, and it has created a cult of personality around George W. Bush that in my opinion rivals that of ?Our Dear Leader? in Korea. So far, the developing unitary executive has brought us: the fiercely secret group of oil CEO?s who created energy policy for Cheney; the superheated lies about Iraq?s nuclear capabilities and her alliance with Al Qaeda in order to con us into war; the use of torture at Abu Ghraib and other detention centers; the rendition of captives to other countries for purposes of torture; the establishment of secret ?black prisons? outside our boundaries where persons can be held and severely questioned without being accused for as long as the president wishes; warrantless (illegal) wiretapping and spying with no apparent limits on American citizens on American soil.
Bush has frequently claimed that his in-house lawyers have always found legal justifications for his actions. Their lawyerly splitting of hairs has reduced the filaments of law to atoms. No matter, Bush has said he intends to continue doing exactly what he has been doing. The excuse is that he is protecting American citizens, that 9/11 changed everything, that we are at war and in extraordinary, mortal danger.
Richard Miniter, a veteran investigative journalist and author if ?Disinformation: 22 Media Myths That Undermine the War on Terrorism,? begs to differ. While Bush and Cheney often play the Terror Card whenever their actions are questioned, the truth is that despite the horror of 9/11, the number of terrorist attacks has declined since 1990 (yes, 1990, before Clinton, before G. W.) Other qualified researchers point out that there would have to be a 9/11 attack every month before terrorism killed as many Americans as car crashes do annually. Personally, having lived through World War II and the Cold War? when the Berlin Wall went up and the Berlin Airlift ensued, when there were at least six Red Army Divisions lined up on the border of Germany, when the Soviets had hundreds of nuclear missles targeted on American cities and very nearly unleashed them during the Cuban Missle Crisis, when we never forgot atomic warfare could happen at any second, I don?t believe we are today in nearly the danger we were in then. And what about the time when a hostile army under a brilliant general invaded our home territory, bypassed Washington, and was not stopped until Gettysburg? No matter how George W. Bush glorifies himself as a ?wartime president,? these times are tough but not overwhelming.
Recall that the ancient Romans, in order to defend THEIR republic during times of extraordinary peril, authorized a Consul to appoint what they called a Dictator with supreme executive powers (albeit for a very short term of office). The cabal to which Wilkerson refers has frequently compared America today to the rising Roman Empire, which they so much admired.
In December 2000 (before 9/11) CNN quoted George W. Bush as saying (jokingly, we can only hope): ?If this were a dictatorship, it?d be a heck of a lot easier, just so long as I?m the dictator.?
King John would approve.
That is the Establishment of which we all are dimly aware, which causes the average citizen to sneer "all politicians are the same, Republican and Democrat," and which provided money and ideas from the beginning of the Republic. Yale, Harvard, the elite. Or, maybe the more alert average citizen can compel them to act....?