Creating Wealth, or Stealing It?

Today's first hour of "On Point" (from WBUR, Boston) discussed the value of the services provided to the economy by the people who sold the mortgage securities which led to the current economic collapse. The people who invented these securities were not alone or isolated. In the environment provided to them, they followed the scent of money to a jackpot. Greed, craven indifference to consequences, and ideological dogmatism opposed to regulation, all played roles in the eventual debacle. But, in search of a new system to prevent another such dire economic failure, these are not traits that can be regulated. What general principles can be extracted from this experience to guide us in creating a new environment, in which the scent of money cannot be followed down a trail to fraud?

Free market people talk about the market being "self-correcting", but people behave individualistically. It may be that "the market" has a self-interest (the maximum benefit for the maximum number) in stability and sustainability, but individuals will do what they can get away with to capture what wealth they can. Free market theorists, like Mr. Greenspan, have failed to note the distinction between the interests and behavior of "the market" (an aggregate behavior conducted in an economic commons) and that of individuals (whose opportunistic advantage may be both fleeting and intoxicating), and were reportedly "stunned" when a deregulated market did not penalize brokers and bankers who were gorging at the trough of cash coming from investors. They were blindsided by the obvious.

The rule, for example, is that when you go to the market, you pay for your pork roast. Generally, a customer would go home with it and prepare to cook it. If then she discovered it was sub-standard, she would return it to the seller, who will make her whole for the sake of his reputation and his business, and because the law says he must. The law, of course, says he is entitled to be paid for the roast, and the customer is entitled to healthy food. Without such laws, the arrangement that brought the pork roast to the neighborhood grocer would collapse.

In the case of the mortgage security meltdown, if the seller notices that you never look at your roast, and discovers you are taking these roasts and selling them by the truck load to people that never look at them, the seller might think he can sell you rotten meat, a sack of potatoes, anything he can get his hands on, and in fact for awhile, he, you, and lots of other people will make plenty of money transferring worthless product to someone who seems not to care, or is trusting you. But sooner or later those trucks will begin to stink, and people will open the truck doors and discover how much rotten crap is really in there. Somehow, someone had slipped the bonds of accountability in this transaction for long enough to defraud many people out of much money.

If any law was being broken, no one noticed, nor did anyone have a reason to notice. Everyone was getting rich. But even if no law said this could not be done, some people were deprived of the benefit of their money, while others got the benefit of that money for a fraudulent product. The limits, the incentives, of the market aligned to perpetuate a fraud. "The market" did not correct itself. "Why," we might ask, "without strict definition of allowable behavior, would we expect individual self-interest to align with the interests of the commons? Why would 'the market' self correct?"

If we know we must regulate, how and when do we do so, and what do we want to achieve?

As the last caller said, "If a guy like Bill Gates can make billions creating a whole new industry, fine," but what have the securities wizards of Wall Street given us? On a continuum, businesses range from those that create wealth, to those that concentrate and extract wealth, perhaps even steal it, without adding any value to the community at large. We can ask "Does this business increase the overall wealth and quality of life of its community, or does it impoverish its community?"

Explicitly criminal enterprises either extract wealth (extortion, "protection") or thrive by selling a product (drugs) with short term "benefits" to its clients who, however, damage the community by engaging in overtly damaging extraction - theft, mugging, extortion. Ponzi schemes are illegal, because they cannot fulfill their promises. Some other sometimes not legal enterprises (Casinos) are devoted to wealth accumulation at the expense of their customers, but are sometimes legal because the customer is (theoretically) aware of the dangers. Some Wall street enterprises (mortgage securities) extracted wealth from investors, but their product or the act of creating it was not illegal because we had not awoken to their inner contradictions. "Network marketing" looks a lot like a Ponzi scheme, and has in the past been tightly regulated, even though they do in fact sell products. Pay-day lenders are being carefully scrutinized because of the uncertain balance of values. Banks, because they handle money, have in the past been tightly regulated, because the use of that money can add or subtract value from the community of which it is a part. Other service businesses, like lawyers and plumbers, require a license, to guarantee the quality of the work, but are free to charge what they want to, and spend their money anyway they want to. Other businesses sell or make products, and the public interest resides in the healthfulness of those products, and the effects of its production on the natural environment and the workers who produce them, but they are free to sell goods, hire people, borrow, build, buy, invest or liquidate, because we understand the business to be about creating new wealth, about producing goods or services that are in demand in the community and beneficial to the health of the community. The values of the community align with the values of the individual.

In all of these examples, the great schism is between activity which improves the quality of life and activity which damages the quality of life. The salient question when looking at any economic activity is first "Is this a method of creating new wealth? Or a method of concentrating other people's wealth?" And second "Does this activity contribute to the general prosperity, or reduce it?" While related, they are not the same question.

The failure of the market and of the government was to foresee that the Wall Street securities brokers would strike out on both counts, in fact fail to even ask the questions. Any business devoted to concentrating wealth without providing an obvious public benefit deserves to be regulated *per se*, and any time a new product or enterprise is to be introduced, we have a right to ask how that product or enterprise fares on those questions. Certainly, NO NEW SECURITY PRODUCT should ever be legal at all until after it has been scrutinized by dispassionate, non-ideological regulators.

Since no one is reading I can write anything

On the 10th I got to the room for the organizing meeting thinking of all the details I had neglected to ensure any kind of turn out. The UU church in Burlington is a busy place and they have a "night watchman" to tend the doors and lights as people come and go and he wanted to attend the meeting after seeing its title. So I gladly let him guide the conversation and in the end he encouraged me to continue pushing for a discussion about executive-branch accountability. I guess I needed a break from the subject because I have barely thought about the meeting since then and only tonight have I found any interest in writing about it.

I have been discussing with myself and others what this experience means to me personally and how I might do things differently in the future.

As soon as I left the meeting I began to think about dodging the organizing part and just writing a book. This would be a more effective use of my time' since I would be using it to do research and documentation of the subject, and would as my first published work, if it were published, end my anonymity. I also started thinking about saturation bombing snippets of the article changes out to every body who might be interested. I might do this yet, but it's not easy to do and I am unsure that it would be worthwhile. It would be a success if anyone started to notice my work.

I want to be part of the conversations where the really bright people are, where the people who make decisions are. This desire is based entirely on a desire to make a difference in the world, to see changes made that would actually work. But something is missing between here and there, between imagination and realization. Considering how far I've come, I'm sure I will work this out, too.

This blog is organized in two ways: The default and imperative chronological form, by the date of the first time any title was used, and by topic. The topic organization fulfills my mission better.

Update December 1, 2008

Have issued a press release, which will mail tomorrow, to a selection of Vermont newspapers, radio stations and TV stations.

Please notice the Blog Contents section. I have arranged the entries in my preferred order of reading.

I don't know where this is going, but I am following through with the intention of my inspiration.

Bearing this cause Heavily.

To move an amendment to the U.S. Constitution through all of its rigors occupies the nation's mind for many years. Even to raise the question and put it down as undesired could turn over the nation's mind with questions, debates and conflicts, drawing on energy that is much needed elsewhere. Beyond this, if the effort, small in its original chances of success, bears the fruit of a changed Constitution, it will change the nation, change its character, in subtle and eternal ways, not predestined to be better. To propose to alter the Constitution – to be serious and to work for its doing – is to shoulder a responsibility of unspeakable magnitude. Contemplation of this responsibility is profoundly humbling for me. An honest man, a man who respects the labors and investments of every other human being, someone who would not ask for attention without good cause, someone who does not repay that attention with some great performance, must tell why this is a cause worthy of the nation's attention, why the question itself deserves attention.

I have been moved in my anger and dismay at the criminal arrogance of the Bush-Cheney team, in such a way that no other presidency has – not Nixon, not Ford, not Carter, not Reagan, not Bush I, not Clinton – and the mood of many Americans is like mine – what things have upset other Americans about this Administration are essentially those that have upset me. I am not alone in my feelings. But is this, a constitutional amendment, the best answer to these feelings?

If I, like so many others, have disagreed with most Bush-Cheney policy, I have also, like others, protested the policies of other presidents, but even then did not find grievous flaws in the Constitution because of these differences. Law was generally followed in those previous administrations of the country, administrators upheld democratic traditions, and the Constitution was not spun to a vertiginous heights of absurdity. Where Bush-Cheney policy might have been comparable as policy to that of other administrations, I would not have begrudged them the right to make policy, and certainly would not advocate for a Constitutional amendment to tilt against our differences. Disagreement over policy is, of course, normal and necessary.

But this administration, in pursuit of its policies and its legacy, has deviated further -- into the realm of unaccountable, into the realms of anti-democratic and illegal behavior, such as bending science, or just overruling science, excuse making to justify actions, violating law and being unashamed and unrepentant about doing so, using incompetence, ignorance and cronyism to effect its goals, lying and stonewalling, demonizing its foes and dividing the country into hostile camps -- than any other I have witnessed, than any I ever imagined would take office. The flaw of this administration, which separates it from others, was not the foreign policy and domestic policy it promoted, but the secret meetings, the willful refusal to give testimony, the super-abundance of “top-secret” documents, the destruction of records, the willful failure to preserve email communication, and the current effort to install political appointees as permanent civil servants. More than simply legitimate policy actions, these were – are – crimes against democracy, crimes against our right to know and hold our Executive accountable for its actions. That unique characteristic of the Bush-Cheney administration which bespeaks a Constitutional flaw has been its ability and intent to undermine accountability, its effective escape from the system of checks and balances with which our government was conceived and has remained stable for over 200 years. It has simply declared itself immune, and has, in just so few words, simply sealed itself off from Congressional oversight. But is a Constitutional amendment the proper way to address these issues?

Just on the account of my own scholarship, I am not sure it does. And if I do not represent a mood and a will felt across the nation, then this paltry plea will mean nothing. But in my mind and my heart, this question rings true. “If they can ignore even the Constitution, which prohibits unwarranted search and seizure, if they can deny habeas corpus even to an American Citizen, what more can they do, what more have they done?” If in me alone these events are vile abrogations of the Presidents pledge of office, then mine is a vision to be discarded. But even if I I am not alone, who am I to ask the nation to pay the price of this debate and the passage of a twenty-eighth Amendment? .

I bear this cause heavily. I cannot be sure this is the best course for the nation. But if not this, then what? Does the Congress have the power or the right or the will to do any better? What measures can the Congress or the People take, when a President can use the power of that office to vault over laws, the Constitution, international treaties and even the weight of public opinion? A headstrong Executive can do anything it wants to when the Constitution fails to provide a check to the abusive use of its power. This is what I believe we need. A check on abuses. Can this really be done in any way other than an Amendment?

Build a Movement.

I believe the time has come to correct some major deficiencies in our Constitution, to address the abuses heaped upon it by the Bush Administration.

The damage done by the Bush administration, accomplished through deceit, demagoguery, and shear incompetence, has me so angry that I'm ready to stand up and face the nation to call for a Constitutional Amendment. Of course, my voice alone will not move a nation. And I don't expect to alone impress anyone who could make this happen. But I suppose, I believe, that many people feel as I do - that the Imperial presidency has cost us and our nation too much in too many ways - and that many people will support a movement to bring new accountability to the Executive Branch of Government. So that's my plan: to build enthusiasm from us, the American populace, to make the ground swell, until it is seen that we the people are serious and numerous, and want an amendment. As of this moment, I'm working alone (with encouragement), but if the need for this is as deep as I believe it to be, once sparked, this vision will ignite and fuel itself, and a movement will be launched. If I have read our mood wrongly, or my solution seems wrong to others, the movement won't light, but here is my call - please check this out and send the link to this blog to other folks. My only goal for now is to find others who want to hold future administrations accountable for such high crimes as Bush-Cheney have committed, and for them to find others who want this also, and if this is the solution we select, to seek the critical mass of support for a Constitutional Amendment.

I have drafted a version of what might be Amendment 28 because I needed to articulate a vision, my vision, of how to address the Constitutional issues. So now that I have articulated my solutions, and I believe in them, I present this draft as a starting point, ground from which to push the conversation. Does this address the issues in the best possible way? I welcome the day it is out of my hands. For now we can talk about the best way to address the mind boggling arrogance of the Bush administration, and its many violations of the Constitution. And we can build support for some sort of change so that in the future, an Executive that is out-of-bounds can be checked.

If you think this idea has found its time, please tell others you think so, and tell them about this blog. If you want to do more, please organize a meeting to talk about building a movement. And write to me about your meeting. Put comments on the blog.

Thanks, Stephen Alrich Marshall
mystical.atheist@gmail.com
"dispolemic.blogspot.com"

Ignite the Tinder Charter Meeting

Bush Cheney Postmortem
and Discussion
Of Whether to Start A Movement To Amend the Constitution

Dec. 10, 2008
7:00
UU Church, Burlington
Pearl Street across from Church Street Market Place – enter by side door.

Topical Agenda:

- Bush Presidency postmortem – Remembering anti-democratic and illegal acts
- Holding the Presidency Accountable – Naming Constitutional violations
- Amend the U.S. Constitution - Proposal on the table by Stephen Alrich Marshall

• From the Preamble: “...The people being the source of all authority and the final arbiter of the good of the nation...”
• Section 1: The right of the people to sue for access to records.
• Section 2: Modification of language in various clauses
• Section 3: Privilege of Confidence: Powers and Procedures for the Congress to hold the Executive Accountable.
  

Action Agenda: What Next?

- Brainstorming needs
- Who does what
- Plan new meeting.

Please Read the US Constitution to be an informed Leader.

Also extremely helpful, the Federalist Papers, and the Anti-Federalist Papers.

Facts, Principles and Intents

If you were as outraged, as I was, by the blatant and egregious violations of the Constitution, of law, and of the spirit of an open, democratic, free society, that were perpetrated by the administration of George Bush, I think you will agree that the time has come to answer the question "How can we prevent these crimes?"

IMPEACHMENT.
Throughout the last term of Congress, when the Democrats had narrow margins of majority, the Democratic Leadership declined to impeach, not for disbelieving that President Bush and Vice President Cheney were impeachable, but because they believed the disruption to the country and the distraction from the business of Governing would be too great and too harmful. Despite my profound dismay with the harms to our country being perpetrated by our government, I could see wisdom in this choice. Following the destruction of Richard Nixon and accelerating with the defeat of Robert Bork, partisan competition had become a vengeful pursuit of the destruction of political foes, as we witnessed when Bill Clinton faced impeachment for offenses not previously deemed impeachable. The Democratic Leadership of the final Congress of the Bush-Cheney administration made a decision that would damp-down the politics of personal destruction, which, in spite of the evil violations of the democratic spirit inflicted upon us, would serve the greater good better, in the long run, than any stay on or accounting of the Bush-Cheney deeds, given Bush-Cheney would soon be leaving office.

PROSECUTION
Similarly, despite a widespread anger at the Bush-Cheney violations in the grass roots, there appears to be no appetite, in the Congress, to bring Charges against them after succession, apparently because of the political turmoil that would result, and because the nation's energy is needed to deal with current economic and international problems. “Damn 'em, chase 'em out of town, and forget 'em!” seems to be the sentiment. To say it another way, now that the storm is over, “Pick yourself up, brush off, and get to work. Our labor is needed more in repairing the economy than in securing justice.” Senator Leahy has been heard to say that there is no chance of a post succession prosecution. Predictions have been made that Bush will issue pardons to obviate prosecutions.

DIAGNOSTIC
As a means of accountability, Impeachment is too blunt of an instrument. Because the constitution fails to define the sorts of crimes that would justify impeachment, short of a political consensus that a high crime has indeed been committed, impeachment is, by default, a political instrument, prone to being wielded not for justice, but for opportunistic acts of political destruction. Furthermore, because the only outcome, after impeachment by the House and conviction by the Senate, is to remove the president from office, the stakes are as high as they get in American political life. As a means of accountability, impeachment threatens to occupy the mind of the nation for months on end, to draw down the energy of the legislative body and the administration of the government of the American people, and to alter the course of history by failing to do something else. So our more prudent political leaders are loathe to pursue it, and impeachment is not a viable means of holding the executive to account for sub-critical crimes.

The president and the executive generally cannot be prosecuted for crimes unique to those offices, they must be impeached. And sub-executive officers can be prosecuted for ordinary crimes if the President is willing to authorize the Attorney General to pursue such a case, but as a means of accountability it fails because the President won't press charges on an officer acting on behalf of the President. And the President is free to pardon officers of the executive, and often does, so they usually cannot be prosecuted when the Presidential term is over and an opposition president has been installed.

So what remains for the Congress to do? Law already exists prohibiting the president from doing many of the things Bush-Cheney have done, and they have done them anyway. Short of a crime which compels even the members of the President's own party to rebel, impeachment is not a threat. Congress can do little more than demand attendance at hearings, to convey its displeasure at the actions of the executive.

PROPOSED
The Bush-Cheney administration has exposed the liberty of the executive to do whatever it wants to, even violate law, ignore summonses and subpoenas of Congress, and indeed, harm the commonweal, without being obliged to account for such violations or failures of judgment. In effect, the executive has not been properly checked, by either the legislative or the judicial branches of government, as our principle of “checks-and-balances” would dictate. Given the goal of the Constitution to provide inter-branch checks on excesses and abuses, new constitutional mechanisms to balance against opportunistic abuses of the executive powers might be needed.

Whatever this mechanism is, because the presidency contains within it the role of commander in chief, and because we depend on the president to act confidently and creatively in all matters of national interest, constraints on this office and the executive must limit abuses, but not leadership, must resist abuses by hostile partisans, but not needful use, and must ensure that such punishments as it may eventually mete out are abundantly necessary. Since the occupant of this office necessarily operates in a political environment, in which a check on the executive powers could be abused to harass or endanger the effectiveness of an administration, even when operating within the bounds of the law, said mechanism should itself be checked in various ways, such as being limited in scope in the first place, at times demanding concurrence of both chambers and using greater than majority votes, to proceed, and giving the judiciary powers to intervene. Finally, with due respect to all flawed but caring persons, bad laws are sometimes passed, good laws are made bad by changing circumstances, and, in any case, a good person may feel compelled to violate the law in the interest of the well being of the people, or of upholding democracy.

Before we place limits on the powers of the President, we must answer the great fear that, after a bombing, a hijacking or an attack, or in the time of a cold war or a hot war, the president might be prevented by law from acting swiftly and confidently to meet the challenge. This fear is perhaps felt more by those who worry about defense and protection of national interests, and less by those that worry about civil liberties or justice, but that fear is real and justified, as the president is our commander in chief, and the person upon whom our collective safety rests. Against this fear is the danger that the powers of the President might be used to intrude upon private citizens who are acting lawfully, against their rights of free speech or economic well being. But we are not forced to act at one extreme of concern or the other. Both of these interests can – and must – be protected.

The first great answer to the fear of over-limiting a president is that because, in a sudden crisis, a president who acts illegally, to protect the people, the nation or the nation's interests, will still gain sympathy from the people of the nation. They will hold him/her harmless, because the president has done the right thing, even if it is illegal. However this protection does not work for abuses, excesses and corruptions. And we prefer to have law that does not need to be broken in defense of the nation.

The first great answer to the fear of over-powering the President resides in the daily, detailed, scrutiny of the office and the entire executive branch, by the media, by Congress, and by other investigators. What the President, the executive, and the government do is of continuing and particular interest to the people, and if the people know what is happening in the government, the President will be held to account for it. The people knowing what the executive is doing, much more than the threat of legal actions or impeachment, will chasten anyone who is considering an illegal act.

Ultimately, we must avoid placing limits on the President, if we can, so we must make everything that the executive does subject to scrutiny. What is not subject to scrutiny must be controlled by someone other than the Executive itself. Such a check on the executive would not punish the executive or its delegees for any crime, except the crime of shielding its actions from public scrutiny. Merely, not revealing to the public what it needs to know to judge the rightness of the actions taken by the executive. The mechanism envisioned, in fact, produces only one crime, that of failing to tell the truth in matters under executive control. If in fact the executive is conducting the people's business in reasonable conformance with the law, does not lie about its actions, and does not hide those acts it is required to disclose, the executive cannot be harmed.

The mechanism envisioned here proposes a new fundamental right of the people, separately and collectively, to review anything that their government knows or does, and to meter this right through their representatives in Congress. This metering would be further buffered through the use of independent bodies of experts, whose role is like that of a grand jury, and whose judgment is further metered through new rounds of Congressional decisions at yet higher standards of compelling need. If the executive is not telling the people the truth, is hiding the truth, and grievous harm is in evidence, then the Congress has at its disposal a means to remove the corrupt elements without resorting to impeachment. This power, then, is itself checked by a role for the judiciary.

The fundamental right of the people to know was perhaps not obvious to our founders, perhaps because to them the executive had been a King, a sovereign, and it would be sufficient to hold the executive as wholly and finally responsible, that only the outputs of the executive's actions would be truly of interest to the people. But in our times, this right might seem more obvious, when transparency might be the only check on an executive intent on investigating innocent people without a warrant, intent on protecting corrupt policy making, intent on protecting favored clients who might have violated law. Certainly, we would ask, if the government draws its legitimate powers from the people, from its mandate to conduct the business of the people, then whenever would the government need to do anything it should hide from the people? If the government conducts all of its business within the law, what could it have to hide? Short of those concerns which the Congress and the executive might agree are best held in confidence, is not the business of the executive the business of the people, and a-priori their natural business and interest? In light of our experience with an executive whose pronounced secrecy has hidden so much corrupt and illegal behavior, a proposal to raise transparency to the height of fundamental right seems entirely justified. The constitution, we may note, requires the Congress to produce a record of its deliberations, and the courts do so automatically. Why should not the executive be expected to make public its deliberations and witnesses?

By providing a right of the people to discover the inner workings of their government, and by delegating that right up to the Congress to enforce, a meaningful check on Executive abuses is erected. By placing the power to investigate and bring charges in an autonomous panel which can be fired by the courts, a meaningful obstacle to partisan harassment is erected. By providing to Congress the power to sue delegees of the executive for failure to answer the people's right to know, the Congress has a meaningful check on executive secrecy, and by granting to the Supreme Court the responsibility to rule on charges of concealment, a meaningful check on partisan harassment is erected. By providing that a conviction under a Congressional charge of concealment will result in dismissal from office, the Executive is placed on notice that if it directs its personnel to engage in corrupt criminal behavior, and to hide it from public scrutiny, those persons can readily be removed from office, and persons who would work in the executive are placed on notice that if they fail to serve the people in good faith, either by committing a crime or by lying about it, the confidence of the executive cannot protect them. Powers of the Congress and the Courts can be exercised to remove them from office. At the same time, by making the laws which govern this process active only in electoral terms of office following the term of their enactment, the Congress would be extremely reluctant to customize the law just to make trouble for the current administration. They would be mindful of the need not to hobble the next President, whom they might favor. A “right to know” would not hobble any executive whose performance is consonant with the well being of the people, and the law. Indeed a more accountable executive is likely to be an invigorated executive, freshened by participation and public input.

The Worst Crimes

Premise of a Proposal to Amend the Constitution.

Stephen Alrich Marshall, November 2008

Incest, rape, torture, genocide and ecocide are not the worst crimes. The worst crimes happen when incest, rape, torture, genocide and ecocide are invisible, when the criminal reaps the rewards of that crime — whatever such cruelty can yield — without accountability and punishment. The worst crimes combine in their execution with secrecy.

There are of course occasions for secrecy with which we would all sympathize. Among these are personal time, relationship time, business dealings to gain a competitive advantage, bank account numbers and passwords, and the code which unlocks the launch button at strategic command. Secrecy, in these cases, allows people to form emotional identifications, can contribute to the community prosperity and diversity, diminishes crime, and promotes our safety. There are many occasions when secrecy promotes well being, because people and nations are frequently malevolent, and might use a vulnerability to destroy the other, who would do better to shield it from view.

But secrecy, whether intentional or fortuitous, can also protect a criminal from the consequences of a criminal act. As such, the criminal planning a crime, something legally dubious, or merely unpopular, and seeking to escape consequences, seeks a way to screen his act from scrutiny. Of course, if an ordinary, legal, acceptable screen, that which is least likely to arouse suspicion, is available, the astute perpetrator will try to erect these screens, and do so with a plausible demeanor of innocence. If we are not expecting a deceit, if we are determined that trust is justified, the valid necessity of privacy can be easily hijacked to provide a screen to cover a crime.

So what are we to think when someone is extremely secretive? Does this person merely feel an unusual need for privacy, an exaggerated mistrust of others with which we might otherwise normally sympathize? Or do they have nefarious purposes, and have in mind to use the usual deference we show to each other to execute a crime? If no one ever emerges from behind his screen of privacy with a bloody face, with screams or mental anguish, if this someone is never caught in deceit, theft or violence, is there a problem? Is it anyone else's business? Typically we would avoid such sensitive questions, even if we have them, because with this much information, any one of us could be held up for scrutiny, and to protect our own privacy, we just don't ask.

But what if it is our business? What if damaged people are emerging from behind the screen, what if any one of us could be taken behind the screen and damaged? What if, after a long series of otherwise un-momentous inconsistencies and logical fallacies, we discover the cupboard is bare, the water is spoiled and the firewood is piled up around a blood splattered car? Then we might wonder, and demand to know, "Is this privacy or secrecy?” and “What exactly are you doing?” We have suddenly learned to not trust this person, and to have no faith in his intentions.

And what if it is the business of governing, and we are the governed? What if someone demands concealment of the inner workings of his administration, and then starts a war we didn't need to enter for shifting reasons that were never true? What if someone spies on citizens and covers it with secrecy? What if someone breaks law after law, claiming he has the authority, but no, he can't say why the law has to be broken, and we cannot even sue for relief because everyone who could testify is forbidden to speak of it? What are we to think when it is our government that requires secrecy? We hope the reasons are good, we hope that laws will not be broken, we hope that the secrecy will be used only to protect our own vulnerabilities, we hope that this secrecy will not be used to mislead us, deny justice, or drain the public purse. We hope and, in the Bush administration, we were profoundly disappointed.What are we to think when the purpose of the secrecy seems to be to avoid accountability?

If in the opening days of the Obama presidency we look back at the Bush administration and ask “Why were you so secretive?”, and “What exactly were you doing?”, and despite the “bloody faces”, we can get no account, no prosecution and no justice, then we might want, in any case, to insist on new law, to check these abuses in future administrations.

The core issue is democracy. Democracy is in the first place, a social construct whose essential purpose is to make power serve the greater good, to make those who wield power answerable for the well being of those who invest trust in them, to bring the powerful into the service of the people from whom that power flows. When accountability fails, democracy is at risk.

In the instance of the Bush administration, minor ambiguities in the US Constitution were used, without effective pushback, to justify or hide illegal behavior. And when behavior was plainly illegal, plainly violated the Constitution, the public had no recourse, had no effective legal remedies, that would force the administration to remain within the law, short of a bruising and impractical impeachment. The Bush administration casually kited over accountability, simply ignoring the law, making clever explanations, or by spinning ambiguities in the Constitution to favor his purposes.

As a consequence, we as Americans suffered humiliation and violations of our civil rights, have seen people murdered and humiliated in our name for reasons we would never confess to, have seen our collective wealth consumed to fulfill arrogant ambitions, have watched as our national pride as a democratic and principled society was trashed, because, except by that cumbersome and difficult process of impeachment, we have no way to demand an accounting. As a nation that esteems “the rule of law”, we had no law, with an effect short of firing our President and Vice President, to protect us against an executive who would violate the law

If you were as outraged, as I was, by the blatant and egregious violations of the Constitution and law, that were perpetrated by the administration of George Bush, I think you will agree that the time has come to answer the question, "How can we prevent these crimes?"

We are guided by empirical facts and overarching principles, from which I derive for your consideration a proposal to amend our Constitution.

To view the actual Constitution, go to www.usconstitution.net, or visit others of the resources listed in the margins of this blog.

Proposed Amendment to the Constitution of the United States of America

Amendment XXVIII:
Executive Accountability

The decisions of Government being in service to the well being of the people, and the people being the source of all authority and the final arbiter of the good of the nation, the Executive and its deliberations shall be the property of the people, subject to their selective review and subject to a controlled review by the Congress, as the Congress shall in law provide.

Law enacted under this provision shall be in force only after the duly elected successor of the President then in power has taken office.

Such powers as flow to the Congress from this Amendment which necessitate enacted legislation to be properly expressed shall be suppressed until and unless such legislation is enacted.

Section 1.
Right of the People to Sue

When other forms of petition fail to evince from the executive timely and effective results, The People may sue the Executive to reveal knowledge, process, testimony, sources, deliberations and decisions to a competent and secure body outside of the Executive, which the executive must do in a brevity of time sufficient to avoid egregious harm to the petitioner. Further,

i. The Congress shall by law identify those matters which may or shall be kept from public disclosure. All other information held by Government shall be deemed to be of the public record, and without shield from full disclosure.

ii. The Congress shall, by law, designate such persons or entity as it will, to hold in trust such information as might be provided in a People's suit against the executive, who or which shall answer the public need, consistent with Congressional guidance. Once commissioned and set upon their duties, said Trust shall serve, withstanding all changes of law or executive order, until its duties are complete, except if the Supreme court determines it or they are incompetent or insufficiently neutral, or the task assigned by Congress has been mooted. Said Trust shall possess the right to acquire without challenge from the Executive unmodified documents, if warranted by the citizen suit. Law written to effect this clause shall be effective immediately upon the grant of the law.

iii. Only that law which was in effect during the previous term of the Presidency shall apply, for purposes of any specific suit;

iv. The executive shall not be shielded from damages for egregious obfuscation.

v. Imperatives of this article shall not be construed to oblige disclosure to public awareness that information whose publication might adversely affect the public welfare, or damage private rights. Such information shall be provided to Congress or its designee with due care and concern for the security of such information, as provided in law.

vi. The Supreme court shall have appellate jurisdiction in citizen suits, and sole jurisdiction in supervision of the citizen suit Trust.

Section 2.
Modifications of existing language

Article I Section 3 shall be modified to read:

The Vice President of the United States shall, as member of the executive and accountable to the people as such, be President of the Senate, but shall have no Vote, unless they be equally divided.

Article I Section 7 shall have appended to it:

Once signed by the President, The President shall enforce the entire law as sent to him/her by Congress, and if s/he signs the bill with objections, expressly intending to abrogate portions of the bill, the bill will be as vetoed and returned to Congress.

Article I Section 9 shall be modified to read:

The privilege of the Writ of Habeas Corpus shall not be suspended in any state or territory owned or controlled by the United States, for any person held by the United States or any ally, surrogate or assignee, unless and only for as long as, when in cases of Rebellion or Invasion or Warfare in the surrounds of the place of detention, the public safety may require it. Further, except in the time it takes to remove detainees from these same circumstances, any person held by any unit of the government of the United States, or any ally, surrogate or assignee, in accord with the Writ of Habeas Corpus, shall be given a binding declaration of whether she/he is held under criminal law, or the law of war, and all protections thus afforded under consequent law shall be provided.

Article II Section 2 shall be modified to read:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual service of the United States, which command shall not exempt the President or delegees from due observance and enforcement of the law, constitutional, judicial, legislative or that between nations; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment of an Executive or of an executive delegee, or to prevent prosecution of an executive, of an executive delegee, or any of these after the executive leaves office, for illegal activity favoring the executive and damaging to the interests of the people.

Article II Section 3 shall be modified to read:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as the President shall judge necessary and expedient, and shall provide to Congress at that same time any data, records and documents of any deliberations and testimony as the President shall have used to arrive at said assessment of the State of the Union, including those that the President may deem sensitive or secret; [Etcetera].

Article II Section 4 shall be modified to read:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, violating provisions of the Constitution, violating international law to which the United States are signatory, violating law the Congress may have designated by two-thirds vote during any previous presidential elective term of office, or other such high Crimes and Misdemeanors..

Article II shall have appended to it a Section 5:

EXECUTIVE ACCOUNTABILITY TO INTERNATIONAL LAW

If, whether through his own acts, the acts of the United States, or the conduct of other nations, the Executive shall be accused of violating the laws of war, of crimes against humanity, or of other grievous crimes that might be embodied in the law of nations, and a prosecutor shall appear before the Supreme Court of the United States to demand extradition of said executive, a Grand Jury composed of citizens of the United States and territories shall be empowered to examine the evidence, and to recommend a course of action for the United States. This Grand Jury has within its purview two questions:

• i. Whether the executive might be guilty of said alleged crimes, and then
  
• ii. Whether the well being of the Nation shall be better served by extradition, impeachment or defense of said Executive, or by inaction.
  

Said Grand Jury shall be drawn from members of the Judiciary, in number a majority, the Congress, in number half the remaining, and from the public, the remaining fraction. Members of this body shall be adjudged for their impartiality, and approved by three-fifths of the Senate.

A recommendation of extradition shall be allowed by a majority vote of the Senate, and approved only after such allowance by a majority of justices of the Supreme Court.

A recommendation to defend the Executive against extradition shall be approved by a majority of the Senate. If said defense fails in any international venue, the Grand Jury shall be reconvened to reconsider its previous recommendations, except that defense shall not be an option.

If these domestic proceedings shall extend beyond the term of office of the accused, said accused shall be afforded all of the procedures, protections, resources and culpabilities as were afforded during that term.

Article III shall have appended a Section 4:

The supreme Court shall receive any requests for extradition, of the Executive or any other Officer of the Government, to international courts, and shall provide the final domestic court of appeal against their extradition.

Section 3.
Privilege of Confidence

The confidence of the people that in keeping state secrets, the executive is serving the interests of the people, shall be secured through oversight by the Congress.

Subsection I. Definition, Powers and Obligations:

A. ANY rights and powers of the executive as may be construed to exempt the executive from testimony before Congress or from disclosure of any knowledge, records or testimony of any communication, consultation or counsel, anywhere within the executive or between the executive and any other party, shall
i. be referred to inclusively as "the privilege of confidence", and
ii. not withstand the right of Congress to acquire such, for any reason whatsoever, except as provided herein.

B. Subpoena of the President shall require a three quarters vote of the subpoenaing Chamber of Congress, and majority ascent of the other, acting within one week. Subpoena of the Vice-President shall require a three fifths vote of the subpoenaing Chamber of Congress, and majority ascent of the other, acting within one week. Subpoena of any other executive delegee shall be as provided in law.

C. If the Executive comes to be in possession of information it deems to be deserving of the privilege of confidence, and the Congress has not yet exempted it from obligatory public disclosure, The Supreme Court may restrain its release for periods not greater than one year each.

D. Conformance of the Executive with the requirement to make all of its records public, as implied herein, shall be as directed by Law.

Subsection II. Enforcement:

If the executive shall claim the privilege of confidence, either chamber of Congress may appoint by simple majority one or several politically disinterested investigators, who shall be subject to approval by a simple majority of the alternate chamber, to summon and depose any executive delegees or surrogates, and examine any documents of the executive branch, without redaction, exclusion or exception, to determine whether the privilege of confidence has been justly asserted. Once appointed, said investigators shall serve at the discretion of the Supreme Court, and grounds for dismissal shall be incompetence or immoderate partisanship. Conclusions of said investigators shall not be subject to appeal, but stand as charges made by a prosecutor.

Part A. If the investigators conclude that the privilege of confidence has been invoked for good cause, or without good cause and without harmful effect, all supplied records and testimony shall be returned to the executive and a report made to the Congress as to the nature of said cause and its effect;

Part B. If the investigators conclude that the privilege of confidence has been asserted without good cause, such that performance of the duties of Governing were harmed, or such that a delegee has been shielded from accountability to public scrutiny, but that no crime warranting prosecution had been committed, the Investigator shall report as such to Congress, and provide a summary report, describing what harms or ethical violations the investigators would allege, citing salient records and testimony. This report, if approved by the empowering body, may be made public.

Part C. If the investigators conclude that the privilege of confidence has been asserted without good cause to the effect that the executive or its delegees have obstructed Congressional awareness of violations of the law, or have concealed from Congress intentional efforts to damage the performance of Government, the investigators shall report to Congress evidence of such violations, and recommend a course of action. In addition to impeachment as already provided herein, the Congress shall have the right to order prosecution of any delegee of the executive, for violating the confidence of the people. The Supreme Court shall have primary jurisdiction, and the sole question under a Congressional order shall be whether the executive delegee acted to conceal from Congress:

i. evidence of possibly criminal behavior.

ii. evidence of actions meant to damage the provision of governmental services.

Subsection III. Remedies following prosecution for Concealment

If found to be innocent, the prosecution shall report to Congress how its prosecution erred, and said delegee may remain in office, subject to the discretion of the President.

If convicted, delegees of the executive shall immediately be removed from office, prior to any appeals. Delegee may not appeal a conviction of concealment while Criminal charges are pending.

If criminal charges are pressed and the delegee is found innocent on all charges, Delegee may appeal, and if prevailing in this appeal, may return to prior executive duties, subject to the discretion of the President.

Neither innocence nor conviction on charges of concealment shall immunize the delegee from prosecution for any other crime in any other venue.
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Repudiation of Polemics

Stephen Alrich Marshall
Fri, 07 Nov 2008

Entitlement, to the prerogatives of power, and the spoils thereof, was (and may still be) the flaw of the Republican mind. Feeling the right to dictate moral coda and to concentrate wealth in fewer hands, there was and must be a righteous "us", and a flawed, perhaps evil, "them". Having already split the world into friends and enemies, they could speak softly to their friends the truth, and they could lie and distort facts and ideas to anyone else, as needed, to acquire the power to which they were, after all, "entitled". And which they needed to effect their agenda. Like Eco-terrorists who get into a construction site and destroy the equipment, only to find the owners fetching the police on them, they so successfully implemented their vision to destroy government that now the owners of that government have evicted them from power, they have in fact repudiated that vision.

Who tells us we do not need government? How, without laws, and without placing the police power in the hands of some accountable agency, do we guarantee that greed, sadism and deceit shall not operate in human affairs? How, without an institution that is accountable to and guided by the people, can we fairly, democratically, set the minimum standards of good citizenship, and enforce them? How, without an incarnation of the community, its institutional memory, and its sole possession of the police power, are we to negotiate the terms of life in society, except by violence and fear? There are yet places in the world without government, and these are dangerous places that armies avoid.

The Democrats, the Independents, and the apatheticists failed also, having no vision and no story to counter the narcissism of the Right. Democrats and Activists also failed when they lashed out at Republicans, in spiteful words. Hate radio has been baiting us for years and we needed to vent, but hate only feeds hate, so let us hope we cool off and apologize. Democrats, feeling repudiated by Ronald Reagan's call for personal responsibility, and cowed by the ridicule heaped on the epithet "liberal", have failed to reclaim the vision of an effective government, as a necessary fulfillment of the vision to "... form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity...", not in denial of personal responsibility, but as a complement to it. The Democrats, like the Republicans, failed to see the validity and necessity of the vision of their ideological opponents.

The deeper philosophical error was and is to believe that one political and economic philosophy can guide a nation and its policies. The Republican dogma of personal responsibility, keeping the government out of personal business, and minimized cost of operation, is valid only if seen in contrast with and balanced against a progressive philosophy that reminds us that we cannot live alone, without sharing our streets, homes, businesses, banks and fates, that we have common interests, that the well being of individuals is an inherent interest of the community, and that the government is where communities make their decisions. Likewise, the Progressive dogma that government can be a force for good is only valid when countered by the conservative abhorrence of dependence. The core truth, forgotten by polemicists, is that all views are needed to find the pragmatic middle, and that no one view is sufficient for a complete vision.

We need a new vision of contest in American Politics, in which the opponent is a representative of a different way of seeing the world and our common business, whom we can question and probe for deeper understanding, and which we ourselves need, to get the policy and the philosophy right.