Arguably, one of the greatest tragedies in the hallowed halls of our Government is the inability of our elected Representatives to stand up for important principles. When failed representation includes gross negligence in defense of our Constitution we, as a nation, are bankrupt.
Good men and women can disagree about policy, but abandonment of our Nation's core principles of freedom and justice borders upon treason.
9/11 brought a tremendous challenge to our nation and government, and presented our leaders with a choice:
- Fight threats to our nation within the bounds of our ethical, moral and legal history, or
- Abandon our core principles of freedom to combat the enemies of our present and future.
The Bush Administration, under the influence of men such as Dick Cheney, David Addington and Alberto Gonzales, elected to suspend constitutional protections to "fight the enemy". Adherence to principles of a Unitary Executive facilitated this tack, and prevented oversight. Even the knowledge of the depth and breadth of liberty suspension was hidden from members of our government outside the handful of decision-makers within the Executive branch.
Members of congress, our elected representatives, failed to fulfill their constitutional obligations to serve as a check on executive power. Time and again, even members of the "opposition" party cowered in fear. Fear that if they were to stand up for the Bill of Rights, the constitutional rights of all Americans, they would be called "weak on terror". Fear that a new attack from our enemies abroad would be used to blame them.
Never mind that there is no evidence to suggest that suspension of the Constitution is necessary or effective at preventing attacks on our country. It is the fear of being labeled "cowardly" by our current administration that has them behaving like cowards.
But today I am not focused on a lack of spine. I am highlighting a group of men who stood up to the threats of the power-mongers within the Bush Administration in defense of our Constitution.
The Office of Legal Counsel (OLC) is charged with interpreting all laws that bear on the powers of the executive branch. After 9/11, a deputy within the OLC, John Yoo, authored several memos that broadened executive power at the expense of the constitution. At least one of these memos, the content of which is yet unknown, allowed the administration to circumvent existing law concerning electronic surveillance (FISA). Despite the fact that the 1978 FISA law prohibited warrantless surveillance on US soil and of US persons, evidence suggests that the administration did exactly this.
There was little to no congressional oversight of the breadth of the program. From October 2001 through the end of OLC head Jay Bybee's tenure in December 2003, there is no evidence that there was any controversy within the administration over the program. However, in December, 2003, a new OLC head, Jack Goldsmith, had immediate and broad concerns about the legality of the Warrantless Surveillance Program and other policies that suspended civil liberties.
It is now obvious that the impetus for suspension of constitutional protections and broad executive power emanated from the office of the vice president, and the OVP counsel, David Addington. From a recent article about Jack Goldsmith:
Months later, when Goldsmith tried to question another presidential decision, Addington expressed his views even more pointedly. "If you rule that way," Addington exclaimed in disgust, Goldsmith recalls, "the blood of the hundred thousand people who die in the next attack will be on your hands."
Thus it is clear that anyone within the administration who had the spine to challenge the Cheney/Addington/Gonzales constitutional suspensions was threatened with the familiar refrain of "if you oppose these powers, you will enable terrorists."
Although this threat was effective with congressmen and women, protection of the constitution was more important than being labeled a coward to a group of men in our Government in March 2004.
In March 2004, a group of men including Goldsmith and Deputy AG James Comey decided to oppose the illegal warrantless surveillance program, that would be manifest by DOJ refusal to sign off on the program (for details, see the Rosen article on Goldsmith and James Comey's May 15, 2007 Senate Judiciary Committee testimony). This opposition culminated with a nighttime mission by Alberto Gonzales and Andy Card to coerce a signature from the critically ill John Ashcroft. Ashcroft had relinquished his authority as AG to James Comey, and rebuffed Gonzales.
The following day, The Illegal Warrantless Surveillance Program was authorized by the president without a customary (and possibly required) DOJ approval signature. According to the written testimony of James Comey, this incredible situation prompted James Comey, Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, David Israelite and Robert Mueller to prepare to resign from the Government if the Warrantless Surveillance program continued illegally.
In response to this situation, President Bush met personally with James Comey and Robert Mueller and gave assurances that The Program would be changed in accordance with their abjections to make it legal. This incredible reversal by Bush circumvented a major scandal. According to the Rosen article on Goldsmith:
"I was sure the government was going to melt down," Goldsmith told me. "No one anticipated they were going to reverse themselves."
So who are the men who said no to Cheney/Addington/Gonzales Executive overreach in defense of the Constitution? Republican appointees, none of whom could be described as "civil libertarians" or even marginally progressive on most policy issues. What demonstrates these men's mettle even more impressively is that the morning after the Hospital Showdown, a major terrorist attack was perpetrated in Madrid, Spain- These men were prepared to resign over principle despite an act that would certainly be used as a "blood on your hands" threat. Per Comey's testimony:
COMEY: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.
SCHUMER: OK.
And that was the day, as I understand it, of the Madrid train bombings.
COMEY: Thursday, March 11th, was the morning of the Madrid train bombings.
SCHUMER: And so, obviously, people were very concerned with all of that.
COMEY: Yes. It was a very busy day in the counterterrorism aspect.
SCHUMER: Yet, even in light of that, you still felt so strongly that you drafted a letter of resignation.
COMEY: Yes.
I will state this again. Despite the certain Addington coda of "Blood on your hands" on March 11, Comey and the others felt that reauthorization of The Program following the DOJ revolt and Hospital Signature Mission was egregious enough to resign.
Summary
The Bush Administration acts with impunity to suspend existing law and constitutional limitations to effect a Unitary Executive. They do this with as little oversight as possible by intimidating those who might stand in their way. Although our congress has heretofore failed to demonstrate a spine in protecting the constitution, in March 2004, a group of men stood up to the Administration on Behalf of the Constitution, and the Administration backed down. If our elected Representatives were as brave and principled as this group of men, Americans could once again be proud of our Government.
The architects of this secret rebellion, Goldsmith, Philbin, and Comey are no longer in Federal Government.