Anyone who wants to write about the constitutional crisis unfolding in
the United States today faces a peculiar problem at the outset. There is
a large body of observations that at one and the same time have been
made too often and yet not often enough–too often because they have
been repeated to the point of tedium for a minority ready to listen but
not often enough because the general public has yet to consider them
seriously enough. The problem for a self-respecting writer is that the
act of writing almost in its nature promises something new. Repetition
is not really writing but propaganda–not illumination for the mind but
a mental beating. Here are some examples of the sort of observations I
have in mind, at once over-familiar and unheard:
President George W. Bush sent American troops into Iraq to find weapons
of mass destruction, but they weren’t there.
He said that Saddam Hussein’s regime had given help to Al Qaeda, but it
He therefore took the nation to war on the basis of falsehoods.
His Administration says that the torture at Abu Ghraib and elsewhere has
been the work of a few bad apples in the military, whereas in fact
abuses were sanctioned at the highest levels of the executive branch in
His Administration lambastes leakers, but its own officials illegally
leaked the name of a CIA operative, Valerie Plame, in order to
politically discredit her husband.
He flatly stated to the public that all wiretaps of Americans were
ordered pursuant to court warrants, whereas in fact he was authorizing
and repeatedly reauthorizing warrantless wiretaps.
These wiretaps violated a specific law of Congress forbidding them.
His Administration has asserted a right to imprison Americans as
well as foreigners indefinitely without the habeas corpus hearings
required by law.
Wars of aggression, torture, domestic spying and arbitrary arrest are
the hallmarks of dictatorship, yet Congress, run by the President’s
party, has refused to conduct full investigations into either the false
WMD claims, or the abuses and torture, or the warrantless wiretaps, or
the imprisonment without habeas corpus.
When Congress passed a bill forbidding torture and the President signed
it, he added a “signing statement” implying a right to disregard its
provisions when they conflicted with his interpretation of his powers.
The President’s secret legal memos justifying the abuses and torture are
based on a conception of the powers of the executive that gives him
carte blanche to disregard specific statutes as well as international
law in the exercise of self-granted powers to the Commander in Chief
nowhere mentioned in the Constitution.
If accepted, these claims would fundamentally alter the structure of the
American government, upsetting the system of checks and balances and
nullifying fundamental liberties, including Fourth Amendment guarantees
against unreasonable searches and seizures and guarantees of due
process. As such, they embody apparent failures of the President to
carry out his oath to “preserve, protect and defend the Constitution of
the United States.”