The Real Agenda, Continued

Before I left for vacation last month, I wrote an entry entitled 'The Real Agenda', examining (once again) the ways in which President Bush was using the terror war to increase his own power and to put himself above the law, at the expense of both checks and balances as well as the success of the war itself. This motive covers numerous related scandals- warrantless wiretaps, torture, secret prisons, leaks, etc. This saga continues- not that one would know from watching the news- and I'm due for a followup post (some previous posts on the topic- here). Let's start in July.

In regards to legal challenges to Bush's warrantless spying program, a federal judge dismissed a lawsuit last month "aimed at blocking AT&T Inc. from giving telephone records to the government for use in the war on terror". U.S. District Judge Matthew F. Kennelly cited- what else- national security concerns as his reason for this decision. Nothing like a permanent national security crisis to deflect accountability.

As Robert Scheer lamented on KCRW's 'Left, Right, and December' last December, this line of thinking means that "we probably can't have a democratic society" if we are in a perpetual state of war.

Better luck was had prior to that decision, when a federal judge in San Francisco issued a ruling "on an obscure procedural point in a court case between the Electronic Frontier Foundation, a digital rights nonprofit, and AT&T. Judge Vaughn Walker rejected the government's claim that because of the doctrine of state secrets, traditionally used to prevent the introduction into court of specific evidence that might compromise national security, he should dismiss EFF's entire case against the phone company." This lawsuit was based on the findings of AT&T whistleblower that I first blogged on in April.

Judge Walker stated that "To defer to a blanket assertion of secrecy would be to abdicate [our constitutional] duty."

Let's hope there are more judges like Walker out there than Kennelly.

The Slate article on this decision further states that the Walker ruling "makes it less likely that Specter's [wiretapping] bill will prevail. Specter's premise is that regular courts cannot handle these extremely secret and sensitive matters. Walker punctured that myth of secrecy in his observation that the administration has discussed the surveillance program at length, and in his argument that litigation touching on the basic facts of the program is unlikely to change the way a terrorist works." This is good news, as Sen. Specter's numerous attempts at 'exerting oversight' have actually been Orwellian shams aimed at further empowering the President.

Speaking of Sen. Specter... he's at it again!!!

Pretending to be outraged this time at the President's continued use of signing statements to circumvent the laws he signs, Sen. Specter stated early last week that "We will submit legislation to the United States Senate which will... authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional". If I believed that he was serious, Specter would get an enthusiastic thumbs up for this. But fool me once... etc.

Criticisms of the Specter saga are available from Glenn Greenwald (here/here) and Salon.

A Salon followup sees all of this as echoes of the Nixon era.

Sen. Specter's declaration came after the American Bar Association recommended that Congress pass legislation requiring a judicial review of these statements. Some task force members went so far as to say that Congress could sue over them. ABA President Michael Greco was on Democracy Now last week to discuss this matter. A snippet from the discussion-

MICHAEL GRECO: The American Bar Association has a task force looking at the presidential signing statements practice. We released the report two days ago here in Washington. The major finding of the task force is that a president's use of signing statements to ignore enforcement of laws is violating the Constitution. The report also found that the system of checks and balances, in which the three branches of government have powers clearly delineated, but clearly limited, are being harmed by the practice of the President in denying Congress its proper role in the process of government.

AMY GOODMAN: Michael Greco, for non-lawyers, can you explain exactly what these signing statements are and why suddenly the President is using them hundreds of times? How does the process actually work? He sits down and signs a bill, and then what?

MICHAEL GRECO: Under the Constitution, Congress enacts a law, sends it to the President. The President has two choices under the Constitution: either approve that law in toto, without picking and choosing which portions he's going to enforce, or he vetoes it. Those are the only two choices. Now comes something called a presidential signing statement that presidents had used before President Bush, but before President Bush, all presidents combined had only issued 600 signing statements. President Bush in the last five-and-a-half years has issued more than 800 of them.

What a presidential signing statement is is a little statement that the President attaches to a bill when he signs it, and the President, in a sense, in essence, is saying in that little statement, “I find some fault or some problem with this law, and I don't intend to enforce a part of it or all of it, because I think it's either unconstitutional or it interferes with my powers.”...

...Let me make one thing clear: we are not singling out President Bush. This practice of signing statements precedes him, but the frequency and the purpose to which this president and future presidents might make of the signing statement is what is of concern to the American Bar Association, because it is harming the separation of powers and checks and balances system that has seen us through for the last two centuries in this country.

Greco also criticized proposed 'compromises' on President Bush's domestic spying program, stating that it "falls way short of the protections that the American people deserve to have under FISA and under the Fourth Amendment".

Moving on to the administration's handling of detainees, the administration is still looking for how to revise their policies in light of their defeat in the recent Supreme Court decision in Hamdan v. Rumsfeld. Expect them to search for loopholes. According to the Washington Post, this is the plan-

A draft Bush administration plan for special military courts seeks to expand the reach and authority of such "commissions" to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal.

The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court’s jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said...

More of the Orwellian 'just trust us, okay?' approaching to prosecuting the war on terror.

The Hamdan decision also made it more likely that members of the Bush administration and related military personnel can now be prosecuted for war crimes. You better believe they're working overtime to avoid that. According to an article in Salon, President Bush and Attorney General Gonzales are at the forefront of this. They write that "To preempt any prosecution, administration officials are now quietly circulating legislation to change the statutory interpretation of the War Crimes Act of 1996. In short, the legislation would make it difficult to prosecute U.S. personnel for the harsh interrogation methods authorized by President Bush and the Justice Department." This 'legal escape hatch' plan is meeting some opposition.

Finally, Rep. John Conyers (ranking Democrat on the House Judiciary Committee) has issued the final version of his 350+ page report- 'The Constitution in Crisis; The Downing Street Minutes and Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq War, and Illegal Domestic Surveillance'. It's one helluva damning report.

Rep. Conyers discusses the report in a blog entry today.

And that's where we stand right now.

[PS- Just a note that Sen. McCain- GOP 2008 frontrunner- shares the President's views on executive power.]

[PPS- The Onion's take: Bush Grants Self Permission To Grant More Power To Self]