These words, from the Roman poet Juvenal, are perhaps appropriate for our consideration today. We have government agencies supposed to watch on our behalf to keep us secure. This includes those that act against threats to our security from national and trans-national actors, agencies such as the National Security Agency, the Defense Intelligence Agency, and the Central Intelligence Agency. It includes a bewildering alphabet soup of agencies designed to ensure that our economy is stable and our financial and health interests are protected - SEC, FTC, FCC, FDA, CPSC, CFTC, etc. The actions of some of these are clearly subject to oversight by the United States Congress, with actions that are subject to public scrutiny. But too much of what is done is hidden behind walls, masked by secrecy.
An agency on the national security side can request one of the alphabet soup agencies to "back off" because it might expose an operation claimed to be in the national security interest. And should the courts wish to intervene, perhaps on behalf of person asserting either a tort (a legal wrong) through a lawsuit, or asserting a violation of Constitutionally protected rights, attempts will be made to block further court-directed inquiry by asserting "state secrets" even though such a doctrine has no proper constitutional basis that I can ascertain.
We have a history of government agencies which have abused authority. Such are the actions not of a liberal democracy (and that is a technical term, for any Conservative Republican who might encounter these words). Rather they are indicative of a mindset that at a minimum is authoritarian, if not moving further towards the totalitarianism of the police state or military dictatorship.
And lest we think It Can't Happen Here, remember that Sinclair Lewis, frightened by the phenomenon of Huey Long, wrote a book by that name to warn of the danger of demagoguery, even in our then century and half old democracy, and that if sufficiently scared too many people will opt for the promise of security in lieu of the guarantee of liberty.
My concern goes beyond the idea of the Unitary Executive, as outlined by David Addington on behalf of Cheney and Bush, whose power is supposedly unlimited in a time of war - and conveniently, by defining the attempt to eradicate the threat of groups like Al Qaeda as the global WAR on terror the administration attempted to assert that the conditions under which it operated gave it unlimited license to act in any fashion decreed by the president.
My concern increases when I read minions of the current administration arguing legally on behalf of doctrines and actions of its predecessor in order to preserve the prerogatives of the office of the Presidency.
Perhaps my reading of history, and of the plain text of the Constitution, are erroneous, and therefore I should be relieved of my responsibility for the instruction of school children in the processes and principles of our Cosntitution and governments. Alexander Hamilton, almost the equivalent of the adopted child of George Washington, clearly preferred the idea of a monarchy - that can be seen in multiple ways, including his words and actions in Philadelphia during that summer of 1787 when our founding document was created in Convention. Yet the assembled representatives of the 12 states which participated made clear that such an approach was not acceptable, even as they had a strong tilt towards property interests and the influence of the kinds of elites of which they considered themselves members. It was not merely the fear of popular uprisings such as that led by Daniel Shays beginning the prior year. They had some experience of power and influence for themselves already and they were not willing to readily surrender that. Some would not have allowed ANY voting by ordinary people for the legislative branch, and would have restricted voting to those owning a substantial amount of real property. But these were forced to compromise, and were able to gain such limitation only in the election of U. S. Senators by the state legislatures and in the existence of an Electoral College which they presumed would be composed of elites capable of acting to protect their interests against a mob mentality or a popular uprising on behalf of some figure inspiring the masses.
And yet - our Founders clearly intended the legislative branch to hold most of the power. After all, neither the Executive nor the Judiciary has the power to remove members of the Legislative, whereas the federal Legislature, acting on behalf of the people (or at least those people they chose to include in electorates) to remove members of both of the other branches, and each chamber had the authority, by 2/3 votes, to expel one of its own members, as Roland Burris may soon find out should he not be sensible and resign before that occurs.
The idea of an action of the Executive being totally beyond the scrutiny of the Legislature seems to me a violation of the shape of the Constitution. Yes, there is the concept of separation of powers, which seems to allow for the notion of Executive Privilege, but as then Chief Justice Burger's opinion in the case that recognize that privilege, U. S. v Nixon, notes,
Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.
Checks and Balances - a concept that breaks down when one branch asserts an absolute immunity from the assertion of Constitutional power given another branch through the doctrine of separation of powers.
Quis custodiet ipsos custodes? First and foremost the watchers/guards on behalf of the people are the elected members of the House and Senate. The watchers/guards of the Constitution are the member of the judicial branch, who hold their office during good behavior. The latter are watched by the former because they can be removed for actions violative of that good behavior - that is part of the power of impeachment, as a final check on those whose terms are designed to place them beyond ORDINARY political pressures, but not to declare them immune from oversight. As to the latter, who watches the Congress? We all do, because now, thanks to the 17th Amendment, all are subject to our approval for their continuance in office. And lest someone argue that a Senator only two years into a six year term is immune, remember that s/he can be removed by a 2/3 vote of the other Senators, which enables the American people to pressure other senators to reign in one whose actions are inappropriate, violative of our rights, or simply too embarrassing to be in such high office (are you listening, Roland?).
From time to time the Congress has asserted itself on the matter of oversight of the executive. Abuses in the intelligence community were properly, in my opinion, exposed to the light of day by investigations led by Frank Church in the Senate and Otis Pike in the House. Have we forgotten how previous administrations, notably (but not exclusively) that of Richard Nixon, sought to hide behind national security in it abuses of power? We have committees which on behalf of their respective chambers are supposed to be the eyes and ears of the rest of their compatriots, who collectively are supposed to be the eyes and ears of the American people. But if an administration can either refuse to disclose to those members, or threaten prosecution if they share what they learn with other elected representatives in their respective chambers, they CANNOT fulfill that most basic of oversight responsibilities. And then even though they are informed, the answer to this question,
Quis custodiet ipsos custodes?
will be NO ONE
It is more than disconcerting, it is at least disheartening, to see representatives of the current administration offering legal argumentation on behalf of what were clearly abusive actions of the previous administration. One certainly must feel similarly about the willingness to maintain a power of rendition where we might claim that the actions by receiving governments are beyond are purview. My reading of things like Geneva, international conventions of torture, and similar documents, tells me that if we have had custody of persons we cannot abrogate our responsibility for their treatment at the hands of any one to whom we transfer them. And an administration whose president argued during the recent election that he had studied the Constitution, taught the Constitution, and would abide by the Constitution, it is shocking to to see the idea that transferring to or holding in overseas sites like Bagram individuals in our custody might somehow place them beyond the reach of US law and constitutional protections.
Here I will acknowledge that there is a body of case law and of SCOTUS opinion that might support such an assertion, despite the clear language of the Constitution and the actions of people like Washington during the Revolutionary War. Here my argument is perhaps different - just because one MIGHT be able to make an argument based on a very narrow reading of Constitutional material does not mean one should. After all, the history of our Constitution has been an increasing expansion of protection of the rights of individuals, both those of unpopular views politically or religiously and those accused of crimes. After all, neither Escobedo nor Miranda were particularly nice people. And remember that George Mason refused to sign the Constitution because it lacked an express protection of rights. Jefferson argued similarly from Paris. Absent a commitment to an explicit Bill of Rights it is highly improbable that the necessary 9 states could have been obtained for ratification.
Quis custodiet ipsos custodes? -- ultimately that responsibility falls upon each and every one of us. We must insist that those we elect to office abide by the restrictions, Constitutional and moral, that are supposed to limit their actions and protect our rights. We do so by how we vote, and by our participation in public discussion, not merely by writing online as I do here, but also in discussion with others, in our contact with our elected and their staffs, with those who seek our support for office.
The idea of deferring to any elite, whether elected or self-appointed as are the many in the pundit class who currently are almost panicked at the erosion of their ability to dominate the discussing, is alien to the idea of a liberal democracy. No Republic whose citizens defer to the supposed experts nor swear allegiance to an attractive leader, whether or not seated on a white horse, will survive.
We face many threats to our future. Our global environment may be in greater crisis than the international financial system that we see melting down before our eyes. The latter is much easier to address.
In both cases we must be careful not to surrender rights in the name of security, to turn to others to save us from ourselves. We must always be watchful of those to whom, under our system of government, we TEMPORARILY raise to positions of power.
Quis custodiet ipsos custodes?
If we do not, if we are not vigilant and demanding, will anything else matter?
Peace.