Thursday, November 13, 2008

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?"

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.

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.

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.

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.

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