Tuesday, December 20, 2005

Spying on Americans III: Gonzales

In the sum of human history, people have had far more reason to fear tyrants than to fear terrorists.

I strongly suspect that if President Bush wanted to round up all of the Arab Americans and shoot them (or any other demographic group for that matter), that Attorney General Alberto Gonzales would come up with a legal interpretation to defend that decision. In fact, it is possible that he already has.

Under this Attorney General, there is no rule of law. There is only the rule of finding interpretations of the law that give the President unlimited power. He has defended Bush’s “right” to do whatever he pleases, from torture to indefinite imprisonment without charges, to kidnapping citizens off of the streets of allied countries and having them disappear, and now for throwing away the 4th Amendment to the Constitution.

The recent revelations concerning Bush's eavesdropping on Americans in our own country is just the most recent example.

In an interview on CNN, Gonzales argued that Bush's actions were legal because (1) the Constitution named him “Commander in Chief of the Army and Navy of the United States”, and (2a) the Foreign Intelligence Surveillance Act requires that government investigators obtain a warrant "except as otherwise authorized by Congress", and (2b) because Congress passed a one-line resolution giving the President authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 “

Gonzales is interpreting (2b) as fulfilling the “except as otherwise authorized by Congress” clause of FISA.

The Commander in Chief

I have already addressed the first part of Gonzales' argument.

In effect, Gonzales is saying that the President, in the role of Commander in Chief, has the authority to suspend the 4th Amendment to the Constitution if he deems it useful in fighting America's enemies.

If we accept his claim that this authority exists, there is no reason to believe that this authority is limited to the 4th Amendment. In fact, there is no reason to believe that this authority applies to any part of the Constitution more than any other. Therefore, according to Gonzales' line of reasoning, the President may, if he deems it useful, suspend any part of the Constitution. If he may suspend any part, he may suspend the whole.

In other words, Gonzales has us living in a Constitutional democracy only insofar as it pleases the Commander in Chief to allow us to live in a Constitutional democracy. Instead of a right, Gonzales is interpreting this as a privilege that Bush has the authority to suspend the instant he can drum up a reason for thinking that the Constitution makes it more difficult for him to defend America.

Let’s be honest, the Constitution does make it more difficult for a President to defend the country. Anything that limits his power, limits his ability to defend the Country. So, according to Gonzales, the Constitution is the law of the land only until the Commander in Chief says otherwise.

The Founding Fathers would have scorned such an interpretation. They would have seen it for what it was. First, it is an invitation for the President to invent a national crisis (e.g., a war against another country on the pretext that it might attack us) in order to assume these dictatorial powers. Second, they would know that the Constitution would not likely survive the very first crisis if the leaders felt that this interpretation was valid.

The War Authorization Act

Gonzales’ second argument -- the "all necessary and appropriate force" argument -- fails primarily because Congress cannot give the President the power to revoke all or part of the Constitution. Neither the Legislature nor the Executive branches have this power. Therefore, neither branch can grant this power to the other, nor exercise this power itself.

Here, again, if we look at Gonzales' argument, he gives the President authority to ignore any law that contains any statement like "except as authorized by Congress." I would wager that only a small fraction of the laws do not have this statement in it somewhere, in some form. Therefore, Gonzales is arguing that no law (or almost no law) passed by Congress is binding on the President. In other words, the President is above the law.

Seriously, if this is a sound legal argument, if the President now has the authority to rewrite every law containing anything similar to the clause, "except as authorized by Congress", the President can get rid of Congress and rewrite virtually every law ever passed.

If the President can rewrite any law, we must ask what other laws he has rewritten that he has not yet told us about.

This is where I draw the conclusion that Gonzales has interpreted the law in such a way that Bush could, if it pleased him to do so, round up and kill any segment of the population he pleases without breaking the law. Any law that he might break has something like the phrase “except as authorized by Congress” within it, so every law that might be applied against him, according to Gonzales, no longer applies.

Our lives and our liberty are at the pleasure of the Commander in Chief, as long as Gonzales is Attorney General.

Usurping the Other Powers of Government

What we see when we look at this NSA case is that the Executive Branch of Government has usurped the powers of the Judicial and Legislative branch and combined with the Executive Powers in the Office of the President. There are no checks and balances any more, because the President no longer needs to appeal to either branch for permission to do anything.

Judicial Authority

The case for usurping judicial authority is plain enough. The Legislature set up a special court to hear cases involving surveillance of this type. The purpose of Bush's secret order was to allow agents to engage in surveillance against American citizens without the burden of obtaining a warrant. That is to say, the judicial branch has been removed from the picture -- rendered impotent by the fact that it no longer has a say in the matter. The Executive Branch gets to be its own judge.

Bush argues that he has done nothing wrong in part because his own staff routinely reviews the provisions of this secret order. Yet, if what has come to the attention of the public is any indicator, this "review" consists of President Bush handing Gonzales a list of activities with instructions, “Now make these legal, too.”

This "review" is being conducted by a team that has done nothing for five years but argue for the unlimited authority of the President to do as he pleases.

Legislative Authority

I have already spoken of how Gonzales has interpreted the resolution of September 2001 as giving the President the power to rewrite any law containing the clause, “except as authorized by Congress.”

Since September, 2001, President Bush has been working under the assumption, which Gonzales has defended, that anything passed by Congress with this clause embedded with the attitude that, “the law is more what you'd call guidelines than actual rules.”


I want a reporter to ask either President Bush or Attorney General Gonzales the following question:

“Are there any limits at all to the President’s power for so long as there are terrorists seeking to attack us – which, by the way, means ‘forever’?”

I want this reporter to have the presence of mind not to accept a phony answer such as, “Yes, the President may not break the law.” This is not a genuine limit if Attorney General Gonzales has already interpreted all of the laws out of existence. The follow-up question must then be, “Are there any laws binding on the President?”

Another phony answer that I would like this reporter not to accept is, “The President may not do anything that will weaken his ability to fight the war.” Since this is the very argument being used to defend the claim that his power has no limits, it is not an argument that can be used to claim that there are limits on his power.

And the next time Bush says, “I’m no dictator,” ask him, “May we assume that you have asked Mr. Gonzales to keep your options open, in case you change your mind?”

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