A Democratic presidential candidate like Hillary Clinton cannot be allowed to go unchallenged as she throws the cloak of Bush's unitary executive around her shoulders so she can "look strong." If she (and any presidential candidate) does not pledge to bring the presidency back into balance with the other branches, those powers will carry on to future presidents and end up in the wrong hands. A Democratic president with Bush's unitary powers and an unrestored Constitution will be like Sigourney Weaver in her role as carrier of the Alien.
This is why we must demand to know the position of each presidential candidate on whether they will disavow the so-called unitary executive and lead a legislative campaign to restore the Constitution.
This commitment could be in the form of a pledge or a plank in the Democratic Party platform or any other dramatic forum to draw attention to a change of attitude we hope (I hope) a new president (especially a new Dem prez) takes before assuming office. I say "especially Democratic" because a nice easygoing Democrat (like, say, Barack Obama) could slip into Bush's presidential shoes -- which are in fact more like jackboots -- and find them curiously comfortable and not want to take them off, perhaps resisting for fear of being called "soft on terrorism." Then we would have to trust his "nice" personality and be a position opposite to the old saying that "We are a nation of laws, not of men."
The aim here is to shine a spotlight on the issues of giving up the unitary executive and restoring the Constitution, a spotlight now almost completely absent except for Sen. Christopher Dodd and his "Restore the Constitution Act of 2007" and other efforts around the edges.
The commitment outlined below has no force of law and is merely a device, a statement of honorable intention for voters. I call it "The Pledge to Restore the Constitution." We can call it something else if anyone thinks of something better. The "talking points" that follow are designed for the candidates on the occasion of announcing The Pledge, perhaps as part of a larger speech on national security and terrorism, to help set up the framing. They are meant to respond to likely press questions and especially the sticky subject of being called "soft on terrorism" even to suggest such an idea as restoring the Constitution in the post-9-11 "age of terror."
I call this "soft" business an example of Rovian dickmanship, and it's an intimidating frame to break through which is why Rove framed it that way. Working out this piece of the argument was the hardest part of this diary -- and if you can think of better angles to build up the defense against the "soft on terrorism" charge, please add them in comments. If the whole approach is off and you see a different way to present it, feel free. Consider this diary a piece of clay at your fingertips and I hope other diaries like it pop up more and more. This is a big discussion.
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THE PLEDGE:
>>As a candidate for president of the United States, I pledge once elected to disavow the extra-Constitutional powers of the so-called "unitary" executive; to protect and defend the Constitution and uphold the rule of law. I also pledge to lead the legislative effort to restore the Constitution so that there will once again be a fully intact set of rights and liberties available to all people living in America and held under U.S. jurisdiction as existed prior to January 2001. I pledge to bring the presidency back into balance with the other two branches, while exercising the Constitutional rights and duties afforded the president by the Constitution << </p>
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Talking Points (from point of view of a candidate):
As a presidential candidate, why am I making The Pledge? Two reasons:
One reason is that any one of the "suspected terrorists" or detainees we deprive of liberties could be any one of us. How do we know we won’t be in that position ourselves someday, if picked up as a protester or a dissenter or in a sweep of Muslim men or by mistaken identity? So we cannot reasonably talk about detainees without saying "we." And if we think, as many of us do, that "Terrorists don’t deserve rights," we have to ask ourselves: How do we know they are terrorists? We can only find out whether they are reasonably suspected terrorists with habeas corpus, a probable cause hearing with evidence to ground our suspicion, and formal charges, all of which are now forbidden under the MCA.
Another reason is that liberties have been lost in supposedly "fighting terrorism" with little of significance to show for our lost freedoms in terms of protection against or prevention of terrorist criminality. Where there is a significant conflict between security and the Constitution we will do everything in our competence (repeat -- competence) to solve the problem in a way that keeps the Constitution as intact as possible. This is in contrast to the Bush method of easy short-cuts that lop off rights and liberties one after another.
To see how central the Constitution is to Democrats, take a look at the creation of the FISA Court after Nixon’s widespread wiretapping abuses. Democrats, rather than sliding along and keeping Nixon’s usurped power to secretly wiretap, put into place a special court where warrants could be obtained fairly easily with a minimal level of probable cause, allowing judicial review to comply with the Fourth Amendment protection against unwarranted searches. In secret electronic surveillance Bush skipped the FISA warrant process –- and the Constitution -- for 5 solid years for no good reason, like a teenager stealing the family car for a joy ride. It’s a matter of values on a spectrum. We value the Constitution.
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Will we be "soft on terror" if we make The Pledge to Restore the Constitution?
To usurp Constitutional powers to hide incompetence is a sign of weakness and not an effective way to protect our national security. To make terrorist criminality worse, as has happened under Mr. Bush’s Iraq war policies, is by definition "soft on terrorism" because it’s helping terrorism, not diminishing or preventing it. Bush policies and especially the Iraq war have strengthened terrorism worldwide according to the 2006 NIE:
"[T]the study found that . . . the Iraq war has fueled the growth of Islamic extremism and terror groups. . . . [R]ather than contributing to eventual victory in the international counterterrorism struggle, the war in Iraq has worsened the U.S. position. Many experts on terrorism regard that finding as unexceptional -- indeed the CIA predicted it before the Iraq invasion -- but it runs counter to the argument presented by the president and his senior advisers."
We can do a more competent, effective and hence "stronger" job than that.
Since 9-11, massive electronic surveillance without individual warrants has been overwhelming law enforcement agents and analysts with useless leads while real terrorists could be getting away. That’s being "weak" on terrorism because it’s not effective. While there is a role for responsible data mining (which looks for patterns without reading content of e-mails or listening to content of calls), massive data mining that overwhelms agents is a reflection of inefficiency and incompetence -– and that’s "weak" on terrorism.
The Bush torture policy is illegal on its face and is being used principally not to get quality information (seldom obtained via torture) but for revenge. The use of torture, not only at Abu Ghraib and Gitmo but worldwide in secret U.S. prisons and renditions to other countries, has worsened terrorism by increasing terrorist recruits who vow to gain vengeance on American cruelty. Recruits are told "Americans don’t deserve to live because they are torturers." It doesn’t matter that they use torture themselves. American use of torture might be one of the worst "soft" spots in our struggle against terrorism because it not only increases terrorism while eliciting lousy intel but has nearly destroyed respect for America in the eyes of the civilized world.
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Towards a new national security policy for Democrats
Democrats are back in charge in Congress and on the threshold of a new Democratic presidency. We have a huge job to do. It's time to rebuild our national security architecture so that we prevail in the struggle against terrorist criminality while sustaining our democracy and Constitution inside the United States.
We will counter the failed Bush approach that prefers arbitrary pre-emptive attack and torture abroad (and at Gitmo) while pulling the wings off the Constitution at home. We will renounce the so-called 'unitary executive' which is nothing more than a photo-op image of a Commander-in-Chief who does not exist in relation to the American people (the CiC only has authority over the military, not over civilians). The unitary executive is a fiction asserted as an excuse not to cooperate with Congress and walk away from the balance of powers.
Dems will restore vital freedoms and avoid torture while -- at the same time -- be "strong on terrorism" by fighting, reducing and preventing terrorism more smartly and effectively than Bush ever imagined. To be fair, Mr. Bush has never really been interested in reducing terrorism, or else he would by now have done it.
While using military force when we must, we will put less emphasis on war and more emphasis on law (PDF: 3 essays by former FBI and CIA professionals. Recall that law enforcement including FBI, CIA and Patrick Fitzgerald successfuly tracked down and prosecuted the Al Qaeda perpetrators of the first World Trade Center attack in 1993). We will stop playing directly into Bin Ladin's hands by reacting blindly as Bin Ladin hopes. We will use our brains; engage in a battle of ideas and address the legitimate grievances of those who would be tempted to support terrorists. We will take advantage of tools and skills of community, culture and global cooperation. We will use economic development. We will drop the pose of arrogance; strengthen our world alliances and improve our reputation (which helps us get much better cooperation for terrorist leads) by showing "a decent respect for the opinions of mankind." This is not "weak." This is smart, flexible, confident.
As a last resort we will use military force such as we did against the Taliban and the Al Qaeda training camps in Afghanistan. Mr. Bush has almost solely used military force alone, and made a grave mistake invading Iraq which had nothing to do with chasing down Al Qaeda (although 4 years later Al Qaeda is now all over Iraq). As mentioned earlier, military force touted as a sign of "strength" in Iraq in the eyes of the Bushites has weakened our position by making terrorism worse. We will use all the arrows in the quiver, a much stronger front against terrorist criminality that is likely to reduce extremist violence to a much smaller threat in the larger scheme of things.
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Which freedoms will we strive to restore?
The list is not short. Specifically I will present to Congress major revisions of the Patriot Act and the Military Commissions Act (MCA) that will preserve tools needed to fight terrorism within the framework of U.S. law and the Constitution. This means, first, reinstating habeas corpus. This odd Latin phrase describes a special freedom at the heart of our democracy which allows a detained person to challenge why they are being detained; without habeas we can be tossed in prison secretly; they can throw away the key and our family will never know what happened to us. We can, as they used to say in Argentina, be "disappeared."
We will submit to Congress revisions of the 2001 and 2002 AUMFs (Authority to Use Military Force in Afghanistan 2001 and Iraq 2002). The first AUMF is too broad and open-ended; it needs to be made more specific and its enforcement shared between career law enforcement and presidency to avoid a partisan political determination of "who is a terrorist" as now determined solely by the president. The second AUMF on Iraq is outdated and currently does not apply at all to the current situation in that unfortunate country. In essence, Mr. Bush is currently using military force in Iraq without authority of Congress.
We will reinstate due process of law in detainee trials; forbid evidence obtained via torture -- and forbid torture in the first place.
We will obtain individual FISA warrants rather than massive blanket warrants for electronic surveillance so that reasonable cause can be determined case by case. There’s plenty of time to arrange these FISA warrants assuming we are more interested in following the law than exercising sheer power to override the warrant process, as a King might wish to do.
We will denounce and rescind the right asserted by Mr. Bush to open any citizen’s mail without a warrant. We will restore the Posse Comitatus Act recently set aside by Mr. Bush allowing him to declare martial law and take charge of all the domestic National Guards of the states at his whim without approval of Congress. This means we are at this moment standing in a military "state of emergency" during which police powers can be used to detain anyone right off the street. Without habeas corpus, those detainees (who could be any one of us) could be never seen again.
We will cease using presidential signing statements to announce intention not to comply with laws passed by Congress. If we have a significant problem with legislation we will veto it or arrange for judicial review.
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Strategy to put The Pledge in motion:
Can we challenge all presidential candidates to make The Pledge? With Barack Obama, Hillary Clinton and Rudy Guilliani already butting heads over whose image is "tougher" and "stronger" (principally in relation to terrorism in reaction to which our freedoms have been suppressed in the first place), we have an uphill battle here to convince them to see the logic of this proposed Pledge. They might consider taking The Pledge if key segments of the blogospshere put upward pressure on the MSM and The Pledge began to float around the talk news circuit, framing the race to take the Pledge as a competition in smart, effective counter-terrorism while restoring the Constitution.
The main idea is for each candidate to be challenged to make The Pledge and to have the phrase "The Pledge to Restore the Constitution" enter the vocabulary of the 2007-2008 presidential campaign. Dems should get ahead of this curve before conservatives’ "American Freedom Agenda" (AFA -- recently proposed by Bruce Fein, Richard Viguerie, Bob Barr and others) takes over the idea -- or Congressional Dems should join with them.
Ideally "The Pledge to Restore the Constitution" will be adopted as part of the Democratic Party platform. I’m not holding my breath but that’s where it belongs.
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