A Open Letter to Jane Harman and Every Democratic and Moderate Republican Member of Congress, on Implementing the Constitution
This is an updated and expanded version of an article posted last week. While many of the ideas are new, the underlying theme of that piece is also important to repeat here, because it does not only seek to speak to each other on this site, but seeks a way to frame this in a manner that many Americans outside of here can relate to. And it at least begins to establish a plan of action, albeit only just a start. That is, it establishes some points and principles that can be effectively shared with our Democratic (and even some Moderate Republican) representatives in the House and Senate. And there is a call to action at the bottom.
The issues regarding the current trampling of our Constitution, and how to approach and explain them to a majority of Americans -- who probably agree if ever they were plainly and correctly presented, are extremely important to bring attention to.
Don’t just assume that "everybody already knows everything." They don‘t. In fact, from the Statements made by many in Congress, there is a lot of confusion even there over these issues. Even more critically, there has also been very little effective exposition of these matters, including on the core misconception; and again, even less in the public sphere.
Below are some statements made by the President last week, which only further illustrate need for the approach described herein; that is, one that urges our Congressional representatives to get off of their heels, affirmatively make the case and begin to define the issue themselves, and use the rhetoric of the Right to also help to make and illuminate the case -- rather than once again allow the Far Right to frame the debate themselves, and once again allow the Far Right to use the Democrats’ own defensive approach in order to mislead upon, and mischaracterize, the issue.
According to the Associated Press:
Bush accused Congress of stalling important pieces of the fight to prevent new terrorist attacks by: dragging out and possibly jeopardizing confirmation of Michael Mukasey as attorney general, a key part of his national security team; [and] failing to act on a bill governing eavesdropping on terrorist suspects.
[Note: Substantiating the relevancy of addressing exactly this type of rhetoric, consider that AFTER the draft of this piece was written highlighing the President's misleading rhetoric above, but just before publication here, three key Senate Judiciary Committee members (including two Democrats)decided to support the previously up in the air Mukasey Nomination.]
Unaddressed, and unexposed, this type of misleading rhetoric works. Democrats may summarily dismiss it, but this is exactly what has ruled the past seven years; and as the capitulation on FISA in August (in response to almost the exact same rhetoric) showed, what has ruled the "debate" on FISA and our Constitution as well.
Without a concerted effort on the part of Democrats to define the debate and the issues, they are going to continue to play catch up, and defense, to these types of almost constant misleading far Right Wing assertions. And they are going to continue to accommodate to them because of misperceived "political implications."
Ironically, the piece yesterday addresses all of this with the approach it suggests. And it suggested effective action that Democrats (such as readers) could take, to begin to get this message out to Congress.
It was a reply to Representative Harman’s diary. Hopefully she, and others in the House and Senate, can understand the frustration that the many responses and comments reflected. [Update: I didn't want to have to reiterate the negative, but many of the comments to Harman's piece and others discussing it were extremely snideful, and unnecessarily pejorative and disrespectful, and probably only unnecessarily aliented Congressional Democrats even further.]
It is a frustration that many feel with respect to Congress right now. And it is a frustration that many feel with respect to the Democrats’ ongoing capitulations therein, to the rhetoric of the Far Right in lieu of articulating and standing up for the principles that matter. And Congressional Democrats, please note that these same sentiments have also been expressed to me by many moderate Republicans -- frustrated with the fact that their party has been hijacked by its right wing, and equally frustrated with Democrats for failing to articulate a case and stand up to it.
The first thing that Democrats can benefit from utilizing, is the fact that this at heart is not a partisan issue. It often seems that a closely related principle -- that being able to establish something in a way that reaches out to a broad cross sections of Americans yet makes the very same underlying points is paramount -- becomes lost or overlooked. (Democrats have often even confused "reaching out" with "compromise" on principles, or abandoning their beliefs, when it is nothing of the sort.) That is, while things may have partisan implications, make the exact same case in a non partisan way.
This has served to Democrats’ detriment in the past, when by using the statements of others, either those in opposition to illustrate their distortion of the issue, their hypocrisy, or in other instances when they mislead, Democrats could much more effectively, and credibly, project their own case, as well as correctly define their opponents.
Bruce Fein, a staunch conservative who served in the Reagan Administration, for example, is a strong ally on this issue:
So conservatives should weep if Democrats prevail in the House or Senate?...perhaps not. The most conservative principle of the Founding Fathers was distrust of unchecked power.
Fein added:
If Democrats capture the House or Senate in November 2006, the danger created by Bush with a Republican-controlled Congress would be mitigated or eliminated.
Yet this is not at all what we have seen. Even despite the fact that many Republicans have spoken out, and several conservatives have left the administration in protest over these very same, and related issues -- leading to an increasingly unchecked, autocratic, and insulated administration, that has nevertheless been exceedingly successful in substantially altering (and undemocratizing) many of our most basic processes of government. And it is not what we saw last year either, as many of those who at least made an attempt to stand up to the President, as this piece aptly noted, were in fact, Republicans.
Why is this?
Again, it is this pattern addressed at the outset -- of failing to turn their opponents’ mischaracterizations into the defining stories of who they are, and instead allowing them to misdefine Democrats and the issues, and playing right into it, and failing to use credible evidence and support when it is available -- that this piece seeks to redress.
Representative Harman, for example, wrote that she is "calling" on the White House to share more than select documents, so why not focus on the idea that "calling for" continues the same "optional" approach that this WH has taken with respect to Congress for the past seven years?. What would those on the Far Right, in both Congress and on webblogs such as this, be saying about this were the situation reversed? They would be making the case to the Nation about how Democrats are undermining our democratic process, not abiding by the rule of law, "once again, undermining Government and the American people," "helping our enemies destroy the fabric of America," "holding up progress, holding up accountability, holding up responsibility, shirking their duty to the American people, subverting our government," or whatever other rhetoric that they could come up with.
Harry Truman put it this way, "Secrecy, and a free, democratic government don't mix." Yet not only is the current administration overly secretive and closed, but it won’t even share information with Congress that it is required to by law. And yet it repeatedly accuses Congress of holding up the Nation’s business, when open, accountable, government, is the nation’s business.
Harman also wrote:
"What rubbish! For those like me who insist that the President’s domestic surveillance program must comply fully with the Constitution and the 4th Amendment, the only way for Congress to get there is with a veto-proof majority. That's why I'm working with Republicans. Got a better idea?"
The idea that those few Democrats (Harman, Rockefeller, and Pelosi are the three mentioned) who were briefed on the warrantless eavesdropping program may have been complicit, is not rubbish. As detailed in this letter to Washington Post editorial page editor Fred Hiatt Wednesday, the program as initially instituted was not legal. The long line of experts who have spoken out unequivocally on this matter is only touched upon therein.
Jeb Rubenfeld, of Yale Law, perhaps put it best: "If [the President is not constrained by the laws that Congress passes, then] we no longer live under the government the founders established.
Ironically, this is the very same view that A.G. nominee Michael Mukasey, in his testimony, indicated support for.
Yet recall how in the example given at the outset, the President turned this around on Democrats, and blamed them, for "holding up" Mukasey’s nomination, and harming our efforts to combat terrorism therein.
Almost anything can and has been alleged by this White House. And it has worked, because Democrats have not stood up to it, have not turned it around on them. Even Joe Lieberman got in on the act, decrying Democrats over "one legal opinion." Except it just happens to be on an interpretation that our entire Constitution is based upon, and an opinion therein which undermines its most fundamental purpose.
John Dean, Author of Worse than Watergate (and as counsel to Richard Nixon, he should know), on MSNBC, stated:
Obviously, we have a Commander in Chief who believes that anything in the name of fighting terrorism, he has authority to do. I would remind people that don't feel concerned about that, that a nation that loses control and the check on its Commander in Chief is something other than a democracy.
This is the view that Mukasey, said he may in fact support, and which Senator Lieberman implied was a largely insignificant "legal issue." (Or perhaps Lieberman was referring to Mukasey’s answer on waterboarding, and did not even catch this more important one about the powers of the Executive branch, in direct contravention of Articles I and II of the Constitution, to unilaterally determine which laws to follow, and which to transgress, in the interests of "National Security.")
For those who, like Senator Lieberman, seem to be muddled on this issue, here is the only oath that the Constitution requires a President to take before assuming office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." The same document that our current President, who more than once has joked how it would be easier, "If I were dictator," said was "just a piece of paper, anyways." Again -- and this is the issue that has not been sufficiently focused on -- if the President has this unilateral power, then the most basic purpose of the Constitution, is essentially rendered null and void at the Executive’s discretion.
With respect to the warrantless wiretapping program that Harman, Pelosi, and Rockefeller were ostensibly briefed, at least in part, on, here is how Bruce Fein, staunch Conservative, in testimony, described it: "I have attached an article I authored for the Presidential Quarterly that elaborates on the flagrant illegality of the NSA’s domestic warrantless surveillance program that violates FISA."
Robert Levy, another staunch conservative, albeit with softer language, in testimony made a similar case.
Nearly the entire American Bar Association membership that has weighed in on the issue, agrees, and the ABA even put out a memorandum decrying the illegal behavior.
The idea that the behavior was illegal, and therefore that the three or so Democrats who were briefed on it, depending upon the extent briefed, may be at least theoretically complicit, is certainly not "rubbish."
At this point, rather than point fingers at Representative Harman, or Senator Rockefeller, this detailed, and I hope reasonable, comment, perhaps helps explain their limited knowledge and participation in this, and brings it into closer accord with the views expressed in the response by Harman.
Yet all of the spin and assertions of intent notwitstanding, clarity on this issue will not be achieved until not only the media, but Congresspeople themselves stop dancing around the constitutional and legal reality of this. Instead of defensively labeling drational's suggestions as rubbish, "We made an egregious mistake," might be a far more effective approach. It will not only help to put the program in the proper constitutional framework, but it is one that will move us towards addressing what has been a flagrant disregard for our founding principles, and one that it appears, from Representative Harman’s response, she is ready to embrace.
But what about this "only way is with a veto proof majority" contention that Harman makes?
Any constitutional issues, FISA notwithstanding, can not be cast aside by statute, even if that statute intends to accomplish otherwise (as some have argued with respect to the Protect America Act). As a practical matter, however, this process takes interminably long. But to begin the process, the rule of law which governs our government must be reinstated. It will no longer do to accept stonewalling, or the ignoring of subpoenas and other requests for the necessary information upon which our processes of Democracy depend.
However, the sad fact is that FISA was in place, as amended several times subsequent to the attacks of September 11, 2001, until the frenzied and sudden passage of the so called "Protect America Act": which through a circuitous and little debated route, effectively gutted it.
Thus, for 180 days, until the Protect America Act sunsets, Representative Harman would seem to be correct in stating that a veto proof majority is needed. But as of today, 90 of those days have passed.
The only "urgency" to come up with a replacement bill requiring a "veto proof" majority, as noted at the outset, is being created by the President himself. To fail to illuminate the issues properly, and believe that therefore two thirds of the House and Senate are necessary to rectify this issue, is to once again play directly into the Far Right’s hands.
It is a pattern that we have seen time and time again.
If that pattern is not addressed and rectified, we will continue to see the same long term results which Rep. Harman suggests that she (and I would imagine most other Democrats and, secretly, more than a few Republicans) is in fact adamantly opposed to. And we will continue to see the same long term results to the Democratic Party -- as it begins to look more and more like the Republican Party -- and to America, that we have seen under an effective six plus years of Far Right Wing rule in both the White House, and in Congress.
Yet far Right Wing rule is no longer the case in Congress, as Democrats have eked out a small majority, and the Republican party therein, while still predominantly represented by its own right wing, is slightly less so. Make that mean something.
Thus, Rep. Harman asked in her first of two paragraphs, as reprinted above, if one had a better idea.
I do. Work towards a veto proof majority, not for the purposes of establishing the onerous requirement of a two thirds majority in both Houses, but for establishing support for the bill that will eventually be passed, and for the necessary clarification and illumination of the issue. Judge Louis Brandeis once wrote that "sunlight is the best disinfectant." Yet what we have largely seen is darkness.
Do not yield to oversight restrictions (surreally termed "concessions" by those in the press and elsewhere) in order to seek false compromise when it comes to America’s founding principles -- when several updates to FISA have already been a compromise. And then when the Act sunsets in 90 days on January 1, please, do not repeat the same mistake that was made on August 4.
Do not capitulate out of concern for being labeled weak. Instead of falsely trying to make it appear as if Democrats are strong; actually be strong. Expose the constant mischaracterizations, articulate the principles that matter, explain why, and stand up for them.
You have the Constitution, you have what makes America, America, you have the courage of the American people, you have the foresight of our Founding Fathers, you have the innate desire of Americans -- what sets us apart -- to not want, in the words of John Edwards, "to cower in the corner, waiting for somebody to watch over us and protect us;" you even have several leading Republicans, on your side. Explain that fighting terrorism effectively and powerfully does not mean abandoning our government of checks and balances that we were founded upon. Explain that our system of oversight and checks has nothing to do with information that can somehow enable terrorists to "avoid" being spied up.
And have an updated FISA ready to be signed into law on February 1, that corrects the foreign to foreign communications that under today’s modern technology may get routed through the U.S. (the ostensible reason for the so called "change" to FISA in the first place).
If you have not already gotten a two thirds majority (which, for any decent bill under the current climate, you won‘t), your party has a majority in both Houses already -- and several republicans will join you on this bill when the case is effectively made. And if that simple majority passed bill gets stalled -- when it clearly addresses the technological problem but leaves the protections for America in place, then make the case as to whose hands this is now upon, as FISA, requiring warrants in those instances where some wholly foreign communications may through technology now be routed through the U.S., will in the meantime, once again be in place. As a new rendition of the classic Who song, "Don't Get Fooled Again," Don't be manipulated again.
One last thing: It is not the "President’s" Surveillance program. It is our program. America’s program. There is no such thing as the "President’s" program. Neither the President, nor Congress, have any authority other than as granted by the willing, informed, consent of the governed.
A big part of the problem today -- and of the direction in which we are headed if this is not reversed -- is that we have in this decade abandoned this principle. It is time to bring it back. It is what America stands for. It is what America, ultimately, is.
And we shouldn't be so ready to let some depraved, psychopathic terrorists, or fear of them, change the basics of who were are, or the basics of what our Constitution means -- nor should this EVER be confused with mounting an effective campaign to root out and combat sovereignless, international terrorism. As a Democrat, stop listening to consultants, and stop listening to pollsters. This is how nations are shaped: Stand up for something. A basic principle that our Nation was founded on, is a good place to start.
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Similar to last week, I’m calling Representative Harman and several other Congressional representatives right now to suggest that this (or other) pieces be considered, and to suggest this approach. I'm also contacting several media sources to ask that this issue be more thoroughly, and objectively, covered. If you agree with it as well, I hope that you do, and continue to do, the same.