Bush and Jackson and Lincoln...Oh My!

One of the best journalists at condensing complex subjects to their essence is Dan Froomkin at the "Washington Post." Today's entry falls in line with some of the best that anyone has written on the issue of presidential power and the current Bush presidency. Froomkin begins with the following:

"What kind of country is it where, when the head of state asks you to do something that may well be illegal, but assures you that he considers it legal, you can't be held accountable for doing it? Welcome to the new U.S. of A."

What he refers to is the House passing the surveillance bill that gives complete immunity to the phone companies who were spying on their customers on behalf of the president and without authorization from the FISA courts--or without any oversight of exactly who was being listened to. Critics have charged that Americans making domestic calls were spied upon in direct contradiction to established laws because the administration raised the specter of "combatting terrorism" as necessary to break the law. There are numerous lawsuits aimed at phone companies who were complicit, with AT&T being one of the more high profile and prolific offenders (great job, Apple, for making that exclusive deal with AT&T for phone service to the IPhone).

First, it is clear that--despite their big talk--the Democrats in charge of Congress are incompetent to stop this President from getting what he wants. They came to power in 2007, and have only accomplished in sharing some of the blame that has been heaped upon Washington from those out in the hinterlands. That aside, this case involving the phone companies is an interesting one. As Froomkin notes, it involves the President of the United States telling private entities that they are protected in breaking the law. And if you think about it, that means the President of the United States believes he may break the law and provide blanket coverage to anyone else who follows. This isn't without precedent. The Department of Justice will issue "legal opinion" to executive branch agencies assuring them they are covered if there is a question of breaking the law. For instance, back in 2005 there was the issue of executive branch agencies using video news releases (VNR) in order to spin policy. These VNRs were sent to local television stations all across America and were run without local news stations telling their audience that they were actually manufactured by a particular government agency, instead leaving the viewer to believe that the news station put the story together itself. The Government Accountability Office (GAO) found that the VNRs violated federal laws against propaganda and ordered the agencies to stop producing them. The Office of Legal Counsel (OLC) issued an opinion, which was widely circulated by Josh Bolten, a SAO inside the White House, giving the agencies the green light to continue sending the VNRs out "as is" because the GAO, which is a legislative agent, has no authority to tell an executive branch agency what it should or should not be doing (despite a wide body of evidence to the contrary).

But what the current issue presents is something entirely different. Here you do not have the head of the executive branch ordering his inferior officers to follow orders, but instead the head of the executive branch (and not the King of the US) telling entities outside the government that they may break the law in accordance with the (policy) edicts of the President!

It is clear that the Democrats missed a chance to fight the president on disputed constitutional grounds--does the president as commander in chief have the authority to not only circumvent the law himself, but also to order others (inside and outside the executive branch) to follow suit OR is the law supreme despite the current state of domestic and/or international affairs? And clearly the Congress has the tools to make a statement on the current administration as it fades into the sunset that is not impeachment. I have never agreed with those on the Left that it should be all about impeachment mostly because impeachment would take longer than this administration has in office, plus it is not clear that the public has the stomach for it. But why not use censure against the president and the vice-president? This device does not even need the support of both chambers. The more authoritarian House of Representatives can drive such a measure through without support of the Republicans. And a censure--which is a black mark on the office holder--is something that, in the past, has gotten under the skin of the president. Back in the early 19th century when the Senate censured Andrew Jackson for, among other things, his veto of the Bank of the US reauthorization. In that instance, the Senate, by simple majority, voted to censure for "assuming power not conferred by the Constitution." Jackson sent a letter of protest to be read into the Record, and the Senate refused to "print the president's message." The censure at least puts the Congress on record--for future generations to see--that there were some serious problems in the way the Bush administration respected the Constitution and the Rule of Law, and those future scholars and politicians should not forget it. Plus it is a far more acceptable device to digest for the American public.

Froomkin ends his article with a blurb on Bush and his legacy. If you have been watching the actions of President Bush this last year, you have seen a person who is very much concerned with how he will be treated by history. I still believe personally that history will not be kind to President Bush, but with the ease in how history can be revised, there are still options available to the president to make the case that he has acted in accord with great presidents of the past. For instance, Bush can make the case that his aggressive unilateralism was often blessed retroactively by the Congress, thus preserving our constitutional system of separation of powers much the way Lincoln's actions were blessed retroactively by the Congress he faced. Whether it was Military Commissions or habeas corpus or the current surveillance bill, Bush's unilateral actions received the blessing of Congress in retrospect, which raises the question: "do questions of constitutional abrogation rest on abuses that immediately happen or on abuses that, after the passage of a certain amount of time, do not bring garner the support of the Congress or the American public?"