Back to the Grind - Democratic Underground

WilliamPitt

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Thu Nov-13-08 09:25 AM
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Back to the Grind

Back to the Grind
By William Rivers Pitt
t r u t h o u t | Columnist

Thursday 13 November 2008

In three words I can sum up everything I've learned about life: it goes on. - Robert Frost

Barack Obama's victory in the 2008 presidential election has completely and totally screwed up my life.

Seriously.

It has been more than a week now, and I'm still not quite ready to deal with this brave new world before me. For the last two years, I've started every day by checking the campaign news wires, reading the campaign blogs and basically immersing myself in everything available that pertained to the race. Not so much of that kind of action to be had any more. Now, it's "transition this" and "Cabinet that." John McCain has basically disappeared from the face of the Earth, though Mrs. Palin is doing her level best to remain a permanent fixture in the media discussion.

All the cable TV news networks have been filling the hours by bringing on wrathful conservatives and chastened GOP campaign operatives, in order to beat them about the head and shoulders with all available examples of how this year's Republican presidential operation was pretty much the worst of its kind in the history of the universe. This was fun to watch for the first few days, but even that has gotten stale now.

This weird ennui is, of course, nothing more than an extension of the aftermath of having worked against George W. Bush and all he stands for lo these last eight years. Suddenly, here we are, less than ten weeks to go before the final and merciful termination of his preposterous tenure, and everything has gotten ... I don't know ... quieter.

Is Bush even relevant anymore? Do we have to worry about what he and his minions might be up to now that the curtain is coming down? Or will that whole stupendously insipid crew do the world a favor and keep their seats with their lips zipped until the deal goes down this January? Does anyone have enough energy left to care about all that?

So, yeah, it seems quiet right now; if you listen carefully, you can still hear the grateful exhalations from millions in America and billions more around the world. There have been enough sighs of relief since last Tuesday to have an effect on global wind and weather patterns; it's been balmy in Bismarck and raining in Orange County, not because of global warming, but because the whole planet is breathing so differently that the clouds themselves have been getting slapped around the skies.

Are we done? Is that it?

Well, let's see.

One matter that remains to be resolved has to do with the survival of the rule of law in America, and the continued applicability of our constitutional form of government. The issue stems from the Bush administration's declared parameters regarding the scope of executive privilege and power. When the scandal surrounding the firing of those United States attorneys erupted some years back, several committees of the House of Representatives decided to investigate the matter. They sent out a number of lawfully-drafted and legally-produced subpoenas to the White House demanding that Bush administration witnesses, along with any and all relevant documentation, be produced for Congressional hearings looking into how and why the decision to fire these attorneys was reached.

The Bush administration responded to these subpoenas by telling Congress to get bent. They declared everyone and everything requested by the subpoenas to be off limits due to their definition of executive privilege. In short, and according to Bush's definition of executive powers, not one agency, institution or individual anywhere in America had the power to question or investigate anything done by the White House, ever, period, end of file and thanks very much.

This gets sticky for a couple of reasons. First, of course, is the matter of oversight and separation of powers within the federal government. When one branch of government declares itself above the law and free from meddlesome oversight by other governmental branches, as required by the Constitution, what remains is the absolute annihilation of the rule of law and the end of America's form of government as it has been practiced for the last quarter of a millennium.

This specific issue is all but certain to wind up in the hands of the Supreme Court one of these days. The Congressional committees, whose subpoenas were spurned, decided to hold the White House in contempt, which initiated a legal process whereby the matter of Bush's definition of executive privilege will eventually be decided in the courts ... which brings us to Scary Problem #2.

There is no settled, definitive, black-letter law on the books in America that specifically sets the parameters for the execution of and limitations on executive powers. The United States Constitution contains exactly 15 words in a single sentence explaining the matter, right at the beginning of Article II: "The executive Power shall be vested in a President of the United States of America." The Federalist Papers go in to far greater detail, but those are documents with no legally binding power, so this one sentence is really all there is.

To be sure, this is not the only gray area left by the founders to be sussed out by future American generations: the right to privacy, the right to bear arms and the right of all citizens to vote were, along with several other issues, not originally settled in the final drafts of our founding documents. Unlike these other issues, however, executive power has never been directly addressed, neither by either legislation or judicial decision, and remains undefined as a matter of law.

The closest we've come was in the 1974 Supreme Court decision in US v. Nixon (418 U.S. 683), which ordered President Richard Nixon to cough up those Watergate tapes after he had refused to do so. While the high court did agree with Nixon's argument that broad executive powers are an absolute necessity for the secure performance of presidential duties, that privilege can not be deemed absolute.

"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and non-diplomatic discussions," wordily claimed the court in the 1974 decision, "would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."

In other words, the Supreme Court decided executive privilege exists, but not completely, and executive powers are broad, but not absolute. Put another way, the court said "Yeah, but also no," and left the issue quite completely unsettled as a matter of law. Therefore, if the case pertaining to those fired US attorneys and Bush's dismissal of those legally-issued subpoenas ever comes up for adjudication by the Supreme Court, their ultimate decision will be binding.

If they rule in favor of Bush's definition of executive privilege, the constitutionally-mandated oversight powers, to be executed by separate but equal governmental branches, will be null and void on the spot. That will create an imperial executive branch, permanent secrecy, and the end of the rule of law in this country.

So, that's one thing we are going to have to deal with down the road, and never mind the impending departure of as many as three Supreme Court justices, which sets up a whole different conversation about whom to appoint in their place and what those appointments will mean to the future of American law. That's a whole 'nother kettle of crawfish entirely, but one that has everything to do with Senate majorities, filibusters, upcoming midterm elections, and so on.

Also, American soldiers and Iraqi civilians are still dying in places like Baghdad and Tikrit, and that whole mess did not resolve itself after last week's election. Ditto Afghanistan for that matter. The economy is in shambles, the constitutional abrogation of privacy rights via governmental surveillance programs is ongoing, the environment is still dirty, public schools are still shabby, our infrastructure continues to crumble, racism and sexism still hold great sway and even the right of all our citizens simply to marry one another remains very much in the wind, as demonstrated by the passage of California's deplorable Proposition 8.

The rest: http://www.truthout.org/111308J