October 03, 2011

Notes & Addenda on Subjective Due Process

Being older has some definite disadvantages, which I feel acutely every morning on attempting to arise to a new day. On the other hand, it does give you historical perspective, and I was wondering to myself, what is so different now versus the Watergate era in terms of responding to frankly unconstitutional acts at the highest level of government in the United States? The answer, I think, is fairly obvious: there is no longer any institutional integrity in Washington, D.C.

With regard to two separate episodes in recent history, the war in Libya and the targeted assassinations of two American citizens a few days ago, and before that the systematic violations of the FISA statute and the Fourth Amendment by the Bush Administration (and we may as well throw in the White House-sanctioned violations of the Eighth Amendment and the Convention Against Torture while we're at it): what you can say about all these events is basically the same thing: (1) everyone very readily agrees that the actions taken by the President were or are illegal and/or unconstitutional; and (2) Congress never does anything about it.

Realistically, each of the illegal actions described above dwarfs by an order of magnitude the actual crimes committed during the Watergate burglary, including the Watergate coverup actions (the illegal spying scandal, the Valerie Plame matter and the torture regime also had very extensive coverup aspects attached to the scandals, at least as involved and criminal as Watergate's coverup).

I think it's instructive that former Senator Russ Feingold attempted to bring a censure motion against President Bush arising fom the illegal spying matter, but he got nowhere and attracted very little support from his own party, in fact. Then he lost his reelection bid in 2010. I'm sure such facts are not lost on the craven souls who inhabit the Congress today; what's in it for me to be a hero? Still, this does not explain the institutional lethargy or passivity in the face of criminality, since if the Congress acted as a body there would be protection in numbers, as there was in the 1970's.

That's about as far as I get with this "analysis:" identifying a key difference between now and 1973. President Obama seems to have internalized this political style and has learned that it's better not to offer any explanations for unconstitutional actions, since the Senators and Representatives don't really raise the point themselves. Any legislative action, such as the brief flurry of harrumphing over the violation of the War Powers Resolution involved in the Libyan war (or, if you're old fashioned like me, the violation of the Constitutional provision regarding the exclusive right of the Congress to declare war), quickly blows over and MediaWorld is on to the next big thing before any damage registers.

I suppose what this really means is that Cheney's concept of the "Unitary Executive," or Nixon's claim that "if the President does it, then it's not illegal," has become the new reality. I suppose that Obama is aware of the federal statutes and Constitutional provisions which he violates, but with no Congressional oversight or restraint, the only remaining criterion for decision is how well his actions will play on the campaign trail. In this regard, I'm sure he's right in his appraisals. Whacking a Muslim troublemaker who records anti-American screeds, as Anwar al-Alaki did, puts the defenders of Due Process into something of a box - are you trying to protect America's enemies? The response, that the defense of a Constitutional principle is important so that we remain a government of laws, not men, sounds weak and insipid compared to the macho action of blowing a terrorist sky-high with a Predator drone.

Congress has bought into the same approach; it's easier, the imagery is better, it doesn't involve complicated legal theory, it plays better to a voting populace with attention deficit disorder on a mass scale. One way or the other, it's the way we've drifted, and I guess we'll find out, in the fullness of time, where it all leads.

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