Al Gore did not use the "I" word. But the former vice president did use his Martin Luther King Day speech in Washington to declare that: "A president who breaks the law is a threat to the very structure of our government." And he went on to say that, in year five of the Bush-Cheney interregnum, "America's Constitution is in grave danger."
Monday's much-anticipated speech by the man who won the popular count in the 2000 presidential election by more than 500,000 votes opened with the assertion that "the American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power."
While Gore stopped short of echoing the call by U.S. Rep. John Conyers, the ranking Democrat on the House Judiciary Committee, for the censure of George Bush and Dick Cheney -- and for an exploration of whether the misdeeds of the president and vice president merit impeachment -- the former member of the U.S. House and Senate did declare that the time has come for Congress to hold this administration to account.
"I call upon Democratic and Republican members of Congress today to uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of government you're supposed to be," Gore told a cheering crowd at the historic Constitution Hall of the Daughters of the American Revolution.
The former vice president left little doubt regarding the proper response to Bush administration assaults on civil liberties and the rule of law. "We have a duty as Americans to defend our citizens' right not only to life but also to liberty and the pursuit of happiness," Gore explained in his remarks to an event organized by the the bipartisan Liberty Coalition and the American Constitution Society for Law and Policy. "It is therefore vital in our current circumstances that immediate steps be taken to safeguard our Constitution against the present danger posed by the intrusive overreaching on the part of the Executive Branch and the President's apparent belief that he need not live under the rule of law."
Gore's remarks have already created a firestorm on the right, with the Republican National Committee decrying the speech as a diatribe "laden with inaccuracies and anger."
But don't settle for the RNC spin, nor for that of its media acolytes.
Gore's speech, while surely controversial, contained a dramatic and significant critique not merely of the Bush administration's wrongdoing but of the failure of Congress and major media to expose and challenge abuses of power.
What was said in Washington on Monday mattered. Indeed, it mattered so much that the the spin machine of the president's party is hard at work seeking to mischaracterize the former vice president's remarks -- remarks that bluntly criticized both Republicans and Democrats.
Here is a transcript of what Al Gore had to say:
As we begin this new year, the Executive Branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses.
It is imperative that respect for the rule of law be restored.
So, many of us have come here to Constitution Hall to sound an alarm and call upon our fellow citizens to put aside partisan differences and join with us in demanding that our Constitution be defended and preserved.
It is appropriate that we make this appeal on the day our nation has set aside to honor the life and legacy of Dr. Martin Luther King, Jr., who challenged America to breathe new life into our oldest values by extending its promise to all our people.
On this particular Martin Luther King Day, it is especially important to recall that for the last several years of his life, Dr. King was illegally wiretapped - one of hundreds of thousands of Americans whose private communications were intercepted by the U.S. government during this period.
The FBI privately called King the "most dangerous and effective negro leader in the country" and vowed to "take him off his pedestal." The government even attempted to destroy his marriage and blackmail him into committing suicide.
This campaign continued until Dr. King's murder. The discovery that the FBI conducted a long-running and extensive campaign of secret electronic surveillance designed to infiltrate the inner workings of the Southern Christian Leadership Conference, and to learn the most intimate details of Dr. King's life, helped to convince Congress to enact restrictions on wiretapping.
The result was the Foreign Intelligence and Surveillance Act (FISA), which was enacted expressly to ensure that foreign intelligence surveillance would be presented to an impartial judge to verify that there is a sufficient cause for the surveillance. I voted for that law during my first term in Congress and for almost thirty years the system has proven a workable and valued means of according a level of protection for private citizens, while permitting foreign surveillance to continue.
Yet, just one month ago, Americans awoke to the shocking news that in spite of this long settled law, the Executive Branch has been secretly spying on large numbers of Americans for the last four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States." The New York Times reported that the President decided to launch this massive eavesdropping program "without search warrants or any new laws that would permit such domestic intelligence collection."
During the period when this eavesdropping was still secret, the President went out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.
But surprisingly, the President's soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the President not only confirmed that the story was true, but also declared that he has no intention of bringing these wholesale invasions of privacy to an end.
At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently.
A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution - our system of checks and balances - was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."
An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution - an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
Thomas Paine, whose pamphlet, "On Common Sense" ignited the American Revolution, succinctly described America's alternative. Here, he said, we intended to make certain that "the law is king."
Vigilant adherence to the rule of law strengthens our democracy and strengthens America. It ensures that those who govern us operate within our constitutional structure, which means that our democratic institutions play their indispensable role in shaping policy and determining the direction of our nation. It means that the people of this nation ultimately determine its course and not executive officials operating in secret without constraint.
The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.
A commitment to openness, truthfulness and accountability also helps our country avoid many serious mistakes. Recently, for example, we learned from recently classified declassified documents that the Gulf of Tonkin Resolution, which authorized the tragic Vietnam war, was actually based on false information. We now know that the decision by Congress to authorize the Iraq War, 38 years later, was also based on false information. America would have been better off knowing the truth and avoiding both of these colossal mistakes in our history. Following the rule of law makes us safer, not more vulnerable.
The President and I agree on one thing. The threat from terrorism is all too real. There is simply no question that we continue to face new challenges in the wake of the attack on September 11th and that we must be ever-vigilant in protecting our citizens from harm.
Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.
Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.
The President's men have minced words about America's laws. The Attorney General openly conceded that the "kind of surveillance" we now know they have been conducting requires a court order unless authorized by statute. The Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing, and no one inside or outside the Administration claims that it does. Incredibly, the Administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on September 11th.
This argument just does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts. First, another admission by the Attorney General: he concedes that the Administration knew that the NSA project was prohibited by existing law and that they consulted with some members of Congress about changing the statute. Gonzalez says that they were told this probably would not be possible. So how can they now argue that the Authorization for the Use of Military Force somehow implicitly authorized it all along? Second, when the Authorization was being debated, the Administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically - and the Congress did not agree. Senator Ted Stevens and Representative Jim McGovern, among others, made statements during the Authorization debate clearly restating that that Authorization did not operate domestically.
When President Bush failed to convince Congress to give him all the power he wanted when they passed the AUMF, he secretly assumed that power anyway, as if congressional authorization was a useless bother. But as Justice Frankfurter once wrote: "To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress."
This is precisely the "disrespect" for the law that the Supreme Court struck down in the steel seizure case.
It is this same disrespect for America's Constitution which has now brought our republic to the brink of a dangerous breach in the fabric of the Constitution. And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.
For example, the President has also declared that he has a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that, notwithstanding his American citizenship, the person imprisoned has no right to talk with a lawyer - even to argue that the President or his appointees have made a mistake and imprisoned the wrong person.
The President claims that he can imprison American citizens indefinitely for the rest of their lives without an arrest warrant, without notifying them about what charges have been filed against them, and without informing their families that they have been imprisoned.
At the same time, the Executive Branch has claimed a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture in a pattern that has now been documented in U.S. facilities located in several countries around the world.
Over 100 of these captives have reportedly died while being tortured by Executive Branch interrogators and many more have been broken and humiliated. In the notorious Abu Ghraib prison, investigators who documented the pattern of torture estimated that more than 90 percent of the victims were innocent of any charges.
This shameful exercise of power overturns a set of principles that our nation has observed since General Washington first enunciated them during our Revolutionary War and has been observed by every president since then - until now. These practices violate the Geneva Conventions and the International Convention Against Torture, not to mention our own laws against torture.
The President has also claimed that he has the authority to kidnap individuals in foreign countries and deliver them for imprisonment and interrogation on our behalf by autocratic regimes in nations that are infamous for the cruelty of their techniques for torture.
Some of our traditional allies have been shocked by these new practices on the part of our nation. The British Ambassador to Uzbekistan - one of those nations with the worst reputations for torture in its prisons - registered a complaint to his home office about the senselessness and cruelty of the new U.S. practice: "This material is useless - we are selling our souls for dross. It is in fact positively harmful."
Can it be true that any president really has such powers under our Constitution? If the answer is "yes" then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?
The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers: "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."
The fact that our normal safeguards have thus far failed to contain this unprecedented expansion of executive power is deeply troubling. This failure is due in part to the fact that the Executive Branch has followed a determined strategy of obfuscating, delaying, withholding information, appearing to yield but then refusing to do so and dissembling in order to frustrate the efforts of the legislative and judicial branches to restore our constitutional balance.
For example, after appearing to support legislation sponsored by John McCain to stop the continuation of torture, the President declared in the act of signing the bill that he reserved the right not to comply with it.
Similarly, the Executive Branch claimed that it could unilaterally imprison American citizens without giving them access to review by any tribunal. The Supreme Court disagreed, but the President engaged in legal maneuvers designed to prevent the Court from providing meaningful content to the rights of its citizens.
A conservative jurist on the Fourth Circuit Court of Appeals wrote that the Executive Branch's handling of one such case seemed to involve the sudden abandonment of principle "at substantial cost to the government's credibility before the courts."
As a result of its unprecedented claim of new unilateral power, the Executive Branch has now put our constitutional design at grave risk. The stakes for America's representative democracy are far higher than has been generally recognized.
These claims must be rejected and a healthy balance of power restored to our Republic. Otherwise, the fundamental nature of our democracy may well undergo a radical transformation.
For more than two centuries, America's freedoms have been preserved in part by our founders' wise decision to separate the aggregate power of our government into three co-equal branches, each of which serves to check and balance the power of the other two.
On more than a few occasions, the dynamic interaction among all three branches has resulted in collisions and temporary impasses that create what are invariably labeled "constitutional crises." These crises have often been dangerous and uncertain times for our Republic. But in each such case so far, we have found a resolution of the crisis by renewing our common agreement to live under the rule of law.
The principle alternative to democracy throughout history has been the consolidation of virtually all state power in the hands of a single strongman or small group who together exercise that power without the informed consent of the governed.
It was in revolt against just such a regime, after all, that America was founded. When Lincoln declared at the time of our greatest crisis that the ultimate question being decided in the Civil War was "whether that nation, or any nation so conceived, and so dedicated, can long endure," he was not only saving our union but also was recognizing the fact that democracies are rare in history. And when they fail, as did Athens and the Roman Republic upon whose designs our founders drew heavily, what emerges in their place is another strongman regime.
There have of course been other periods of American history when the Executive Branch claimed new powers that were later seen as excessive and mistaken. Our second president, John Adams, passed the infamous Alien and Sedition Acts and sought to silence and imprison critics and political opponents.
When his successor, Thomas Jefferson, eliminated the abuses he said: "[The essential principles of our Government] form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation ... [S]hould we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."
Our greatest President, Abraham Lincoln, suspended habeas corpus during the Civil War. Some of the worst abuses prior to those of the current administration were committed by President Wilson during and after WWI with the notorious Red Scare and Palmer Raids. The internment of Japanese Americans during WWII marked a low point for the respect of individual rights at the hands of the executive. And, during the Vietnam War, the notorious COINTELPRO program was part and parcel of the abuses experienced by Dr. King and thousands of others.
But in each of these cases, when the conflict and turmoil subsided, the country recovered its equilibrium and absorbed the lessons learned in a recurring cycle of excess and regret.
There are reasons for concern this time around that conditions may be changing and that the cycle may not repeat itself. For one thing, we have for decades been witnessing the slow and steady accumulation of presidential power. In a global environment of nuclear weapons and cold war tensions, Congress and the American people accepted ever enlarging spheres of presidential initiative to conduct intelligence and counter intelligence activities and to allocate our military forces on the global stage. When military force has been used as an instrument of foreign policy or in response to humanitarian demands, it has almost always been as the result of presidential initiative and leadership. As Justice Frankfurter wrote in the Steel Seizure Case, "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."
A second reason to believe we may be experiencing something new is that we are told by the Administration that the war footing upon which he has tried to place the country is going to "last for the rest of our lives." So we are told that the conditions of national threat that have been used by other Presidents to justify arrogations of power will persist in near perpetuity.
Third, we need to be aware of the advances in eavesdropping and surveillance technologies with their capacity to sweep up and analyze enormous quantities of information and to mine it for intelligence. This adds significant vulnerability to the privacy and freedom of enormous numbers of innocent people at the same time as the potential power of those technologies. These techologies have the potential for shifting the balance of power between the apparatus of the state and the freedom of the individual in ways both subtle and profound.
Don't misunderstand me: the threat of additional terror strikes is all too real and their concerted efforts to acquire weapons of mass destruction does create a real imperative to exercise the powers of the Executive Branch with swiftness and agility. Moreover, there is in fact an inherent power that is conferred by the Constitution to the President to take unilateral action to protect the nation from a sudden and immediate threat, but it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.
But the existence of that inherent power cannot be used to justify a gross and excessive power grab lasting for years that produces a serious imbalance in the relationship between the executive and the other two branches of government.
There is a final reason to worry that we may be experiencing something more than just another cycle of overreach and regret. This Administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential authority is exactly what our Constitution intended.
This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president's powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President's authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.
This effort to rework America's carefully balanced constitutional design into a lopsided structure dominated by an all powerful Executive Branch with a subservient Congress and judiciary is - ironically - accompanied by an effort by the same administration to rework America's foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.
The common denominator seems to be based on an instinct to intimidate and control.
This same pattern has characterized the effort to silence dissenting views within the Executive Branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all Executive Branch employees.
For example, CIA analysts who strongly disagreed with the White House assertion that Osama bin Laden was linked to Saddam Hussein found themselves under pressure at work and became fearful of losing promotions and salary increases.
Ironically, that is exactly what happened to FBI officials in the 1960s who disagreed with J. Edgar Hoover's view that Dr. King was closely connected to Communists. The head of the FBI's domestic intelligence division said that his effort to tell the truth about King's innocence of the charge resulted in he and his colleagues becoming isolated and pressured. "It was evident that we had to change our ways or we would all be out on the street... The men and I discussed how to get out of trouble. To be in trouble with Mr. Hoover was a serious matter. These men were trying to buy homes, mortgages on homes, children in school. They lived in fear of getting transferred, losing money on their homes, as they usually did. ... so they wanted another memorandum written to get us out of the trouble that we were in."
The Constitution's framers understood this dilemma as well, as Alexander Hamilton put it, "a power over a man's support is a power over his will." (Federalist No. 73)
Soon, there was no more difference of opinion within the FBI. The false accusation became the unanimous view. In exactly the same way, George Tenet's CIA eventually joined in endorsing a manifestly false view that there was a linkage between al Qaeda and the government of Iraq.
In the words of George Orwell: "We are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right. Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality, usually on a battlefield."
Whenever power is unchecked and unaccountable it almost inevitably leads to mistakes and abuses. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded.
Last week, for example, Vice President Cheney attempted to defend the Administration's eavesdropping on American citizens by saying that if it had conducted this program prior to 9/11, they would have found out the names of some of the hijackers.
Tragically, he apparently still doesn't know that the Administration did in fact have the names of at least 2 of the hijackers well before 9/11 and had available to them information that could have easily led to the identification of most of the other hijackers. And yet, because of incompetence in the handling of this information, it was never used to protect the American people.
It is often the case that an Executive Branch beguiled by the pursuit of unchecked power responds to its own mistakes by reflexively proposing that it be given still more power. Often, the request itself it used to mask accountability for mistakes in the use of power it already has.
Moreover, if the pattern of practice begun by this Administration is not challenged, it may well become a permanent part of the American system. Many conservatives have pointed out that granting unchecked power to this President means that the next President will have unchecked power as well. And the next President may be someone whose values and belief you do not trust. And this is why Republicans as well as Democrats should be concerned with what this President has done. If this President's attempt to dramatically expand executive power goes unquestioned, our constitutional design of checks and balances will be lost. And the next President or some future President will be able, in the name of national security, to restrict our liberties in a way the framers never would have thought possible.
The same instinct to expand its power and to establish dominance characterizes the relationship between this Administration and the courts and the Congress.
In a properly functioning system, the Judicial Branch would serve as the constitutional umpire to ensure that the branches of government observed their proper spheres of authority, observed civil liberties and adhered to the rule of law. Unfortunately, the unilateral executive has tried hard to thwart the ability of the judiciary to call balls and strikes by keeping controversies out of its hands - notably those challenging its ability to detain individuals without legal process - by appointing judges who will be deferential to its exercise of power and by its support of assaults on the independence of the third branch.
The President's decision to ignore FISA was a direct assault on the power of the judges who sit on that court. Congress established the FISA court precisely to be a check on executive power to wiretap. Yet, to ensure that the court could not function as a check on executive power, the President simply did not take matters to it and did not let the court know that it was being bypassed.
The President's judicial appointments are clearly designed to ensure that the courts will not serve as an effective check on executive power. As we have all learned, Judge Alito is a longtime supporter of a powerful executive - a supporter of the so-called unitary executive, which is more properly called the unilateral executive. Whether you support his confirmation or not - and I do not - we must all agree that he will not vote as an effective check on the expansion of executive power. Likewise, Chief Justice Roberts has made plain his deference to the expansion of executive power through his support of judicial deference to executive agency rulemaking.
And the Administration has supported the assault on judicial independence that has been conducted largely in Congress. That assault includes a threat by the Republican majority in the Senate to permanently change the rules to eliminate the right of the minority to engage in extended debate of the President's judicial nominees. The assault has extended to legislative efforts to curtail the jurisdiction of courts in matters ranging from habeas corpus to the pledge of allegiance. In short, the Administration has demonstrated its contempt for the judicial role and sought to evade judicial review of its actions at every turn.
But the most serious damage has been done to the legislative branch. The sharp decline of congressional power and autonomy in recent years has been almost as shocking as the efforts by the Executive Branch to attain a massive expansion of its power.
I was elected to Congress in 1976 and served eight years in the house, 8 years in the Senate and presided over the Senate for 8 years as Vice President. As a young man, I saw the Congress first hand as the son of a Senator. My father was elected to Congress in 1938, 10 years before I was born, and left the Senate in 1971.
The Congress we have today is unrecognizable compared to the one in which my father served. There are many distinguished Senators and Congressmen serving today. I am honored that some of them are here in this hall. But the legislative branch of government under its current leadership now operates as if it is entirely subservient to the Executive Branch.
Moreover, too many Members of the House and Senate now feel compelled to spend a majority of their time not in thoughtful debate of the issues, but raising money to purchase 30 second TV commercials.
There have now been two or three generations of congressmen who don't really know what an oversight hearing is. In the 70's and 80's, the oversight hearings in which my colleagues and I participated held the feet of the Executive Branch to the fire - no matter which party was in power. Yet oversight is almost unknown in the Congress today.
The role of authorization committees has declined into insignificance. The 13 annual appropriation bills are hardly ever actually passed anymore. Everything is lumped into a single giant measure that is not even available for Members of Congress to read before they vote on it.
Members of the minority party are now routinely excluded from conference committees, and amendments are routinely not allowed during floor consideration of legislation.
In the United States Senate, which used to pride itself on being the "greatest deliberative body in the world," meaningful debate is now a rarity. Even on the eve of the fateful vote to authorize the invasion of Iraq, Senator Robert Byrd famously asked: "Why is this chamber empty?"
In the House of Representatives, the number who face a genuinely competitive election contest every two years is typically less than a dozen out of 435.
And too many incumbents have come to believe that the key to continued access to the money for re-election is to stay on the good side of those who have the money to give; and, in the case of the majority party, the whole process is largely controlled by the incumbent president and his political organization.
So the willingness of Congress to challenge the Administration is further limited when the same party controls both Congress and the Executive Branch.
The Executive Branch, time and again, has co-opted Congress' role, and often Congress has been a willing accomplice in the surrender of its own power.
Look for example at the Congressional role in "overseeing" this massive four year eavesdropping campaign that on its face seemed so clearly to violate the Bill of Rights. The President says he informed Congress, but what he really means is that he talked with the chairman and ranking member of the House and Senate intelligence committees and the top leaders of the House and Senate. This small group, in turn, claimed that they were not given the full facts, though at least one of the intelligence committee leaders handwrote a letter of concern to VP Cheney and placed a copy in his own safe.
Though I sympathize with the awkward position in which these men and women were placed, I cannot disagree with the Liberty Coalition when it says that Democrats as well as Republicans in the Congress must share the blame for not taking action to protest and seek to prevent what they consider a grossly unconstitutional program.
Moreover, in the Congress as a whole - both House and Senate - the enhanced role of money in the re-election process, coupled with the sharply diminished role for reasoned deliberation and debate, has produced an atmosphere conducive to pervasive institutionalized corruption.
The Abramoff scandal is but the tip of a giant iceberg that threatens the integrity of the entire legislative branch of government.
It is the pitiful state of our legislative branch which primarily explains the failure of our vaunted checks and balances to prevent the dangerous overreach by our Executive Branch which now threatens a radical transformation of the American system.
I call upon Democratic and Republican members of Congress today to uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of government you're supposed to be.
But there is yet another Constitutional player whose pulse must be taken and whose role must be examined in order to understand the dangerous imbalance that has emerged with the efforts by the Executive Branch to dominate our constitutional system.
We the people are - collectively - still the key to the survival of America's democracy. We - as Lincoln put it, "[e]ven we here" - must examine our own role as citizens in allowing and not preventing the shocking decay and degradation of our democracy.
Thomas Jefferson said: "An informed citizenry is the only true repository of the public will."
The revolutionary departure on which the idea of America was based was the audacious belief that people can govern themselves and responsibly exercise the ultimate authority in self-government. This insight proceeded inevitably from the bedrock principle articulated by the Enlightenment philosopher John Locke: "All just power is derived from the consent of the governed."
The intricate and carefully balanced constitutional system that is now in such danger was created with the full and widespread participation of the population as a whole. The Federalist Papers were, back in the day, widely-read newspaper essays, and they represented only one of twenty-four series of essays that crowded the vibrant marketplace of ideas in which farmers and shopkeepers recapitulated the debates that played out so fruitfully in Philadelphia.
Indeed, when the Convention had done its best, it was the people - in their various States - that refused to confirm the result until, at their insistence, the Bill of Rights was made integral to the document sent forward for ratification.
And it is "We the people" who must now find once again the ability we once had to play an integral role in saving our Constitution.
And here there is cause for both concern and great hope. The age of printed pamphlets and political essays has long since been replaced by television - a distracting and absorbing medium which sees determined to entertain and sell more than it informs and educates.
Lincoln's memorable call during the Civil War is applicable in a new way to our dilemma today: "We must disenthrall ourselves, and then we shall save our country."
Forty years have passed since the majority of Americans adopted television as their principal source of information. Its dominance has become so extensive that virtually all significant political communication now takes place within the confines of flickering 30-second television advertisements.
And the political economy supported by these short but expensive television ads is as different from the vibrant politics of America's first century as those politics were different from the feudalism which thrived on the ignorance of the masses of people in the Dark Ages.
The constricted role of ideas in the American political system today has encouraged efforts by the Executive Branch to control the flow of information as a means of controlling the outcome of important decisions that still lie in the hands of the people.
The Administration vigorously asserts its power to maintain the secrecy of its operations. After all, the other branches can't check an abuse of power if they don't know it is happening.
For example, when the Administration was attempting to persuade Congress to enact the Medicare prescription drug benefit, many in the House and Senate raised concerns about the cost and design of the program. But, rather than engaging in open debate on the basis of factual data, the Administration withheld facts and prevented the Congress from hearing testimony that it sought from the principal administration expert who had compiled information showing in advance of the vote that indeed the true cost estimates were far higher than the numbers given to Congress by the President.
Deprived of that information, and believing the false numbers given to it instead, the Congress approved the program. Tragically, the entire initiative is now collapsing - all over the country - with the Administration making an appeal just this weekend to major insurance companies to volunteer to bail it out.
To take another example, scientific warnings about the catastrophic consequences of unchecked global warming were censored by a political appointee in the White House who had no scientific training. And today one of the leading scientific experts on global warming in NASA has been ordered not to talk to members of the press and to keep a careful log of everyone he meets with so that the Executive Branch can monitor and control his discussions of global warming.
One of the other ways the Administration has tried to control the flow of information is by consistently resorting to the language and politics of fear in order to short-circuit the debate and drive its agenda forward without regard to the evidence or the public interest. As President Eisenhower said, "Any who act as if freedom's defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America."
Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction. Justice Brandeis once wrote: "Men feared witches and burnt women."
The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.
Yet, in the teeth of those dangers, they insisted on establishing the Bill of Rights.
Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment's notice? Is America in more danger now than when we faced worldwide fascism on the march - when our fathers fought and won two World Wars simultaneously?
It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same.
We have a duty as Americans to defend our citizens' right not only to life but also to liberty and the pursuit of happiness. It is therefore vital in our current circumstances that immediate steps be taken to safeguard our Constitution against the present danger posed by the intrusive overreaching on the part of the Executive Branch and the President's apparent belief that he need not live under the rule of law.
I endorse the words of (former Republican U.S. Representative) Bob Barr, when he said, "The President has dared the American people to do something about it. For the sake of the Constitution, I hope they will."
A special counsel should immediately be appointed by the Attorney General to remedy the obvious conflict of interest that prevents him from investigating what many believe are serious violations of law by the President. We have had a fresh demonstration of how an independent investigation by a special counsel with integrity can rebuild confidence in our system of justice. Patrick Fitzgerald has, by all accounts, shown neither fear nor favor in pursuing allegations that the Executive Branch has violated other laws.
Republican as well as Democratic members of Congress should support the bipartisan call of the Liberty Coalition for the appointment of a special counsel to pursue the criminal issues raised by warrantless wiretapping of Americans by the President.
Second, new whistleblower protections should immediately be established for members of the Executive Branch who report evidence of wrongdoing - especially where it involves the abuse of Executive Branch authority in the sensitive areas of national security.
Third, both Houses of Congress should hold comprehensive - and not just superficial - hearings into these serious allegations of criminal behavior on the part of the President. And, they should follow the evidence wherever it leads.
Fourth, the extensive new powers requested by the Executive Branch in its proposal to extend and enlarge the Patriot Act should, under no circumstances be granted, unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed.
Fifth, any telecommunications company that has provided the government with access to private information concerning the communications of Americans without a proper warrant should immediately cease and desist their complicity in this apparently illegal invasion of the privacy of American citizens.
Freedom of communication is an essential prerequisite for the restoration of the health of our democracy.
It is particularly important that the freedom of the Internet be protected against either the encroachment of government or the efforts at control by large media conglomerates. The future of our democracy depends on it.
I mentioned that along with cause for concern, there is reason for hope. As I stand here today, I am filled with optimism that America is on the eve of a golden age in which the vitality of our democracy will be re-established and will flourish more vibrantly than ever. Indeed I can feel it in this hall.
As Dr. King once said, "Perhaps a new spirit is rising among us. If it is, let us trace its movements and pray that our own inner being may be sensitive to its guidance, for we are deeply in need of a new way beyond the darkness that seems so close around us."
Imagine this: a drone launched from a ship off the Eastern coast of the United States fires a missile that destroys a neighborhood of Stamford, Connecticut. Another direct attack on America from a foreign enemy! The newspapers would cover the story on the front-page for days to come. It would be all over the cable shows. US officials would be bombarded with demands for answers.
Now consider the CIA's recent attack on the Pakistani village of Damadola--an attempt to kill Ayman Zawahiri, al Qaeda's No. 2 that seems instead to have ended up blowing apart a dozen or so civilians. [See the update below.] This tragic episode in the so-called war on terrorism was off the front pages by Monday and competing for time on national cable news broadcasts with runaway convicts and other local crime news. I'm not all that surprised. This was another example of how what we do there does not fully register here. There are tens of thousands of Pakistanis in the streets and outraged--as they should be--at the violation of their national sovereignty (by a supposed ally!) that led to the killing of their fellow citizens. If it turns out that General Pervez Musharraf knew about the attack in advance and okayed it (explicitly or implicitly), he may well have trouble staying in power. Meanwhile, this certainly makes one (or should make one) think of that old, cliched question: why do they hate us? Hey, I know; it's only a dozen or so lives. But here you have the big, bad U.S. of A. raining death down from the sky with impunity, treating faraway villagers as nobodies that no one in Washington needs to worry about. No one pays for this. No one is punished. Can you spell "resentment."
It was somewhat appropriate that the day the news of this errant assault broke, a source sent me a memo that Karen Hughes, Bush's communications guru who is now undersecretary of state for public diplomacy, recently disseminated to chiefs of mission, deputy chiefs of mission and public affairs officers at US embassies around the world. The subject was speaking to reporters, and Hughes wanted to share what she called "Karen's Rules" on dealing with the media.
Her Rule No. 1: "Think advocacy. I want all of you to think of yourselves as advocates for America's story each day. I encourage you to have regular sessions with your senior team to think about the public diplomacy themes of each event or initiative." But, Hughes added, do not stray from the talking points: "Use what's out there. You are always on sure ground if you use what the President, Secretary Rice, Sean McCormack, or any USG spokesman has already said on a particular subject....My Echo Chamber messages are meant to provide you clear talking points in a conversational format on the 'hot' issues of the day." Hughes ended her cable with this: "Forceful advocacy of U.S. interests and positions is critical to our effort to marginalize the extremists and share a positive vision of hope for all countries and people. I encourage you to take advantage of opportunities to speak out, and look forward to our aggressive promotion of U.S. policy."
Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on how the Dems failed at the Alito hearings and other in-the-news matters.
So how should COMs, DCMs, and PAOs in embassies around the world be talking about the US attack in Pakistan? "I know," Hughes wrote, "that it is important to get out in front of an issue or at best have a strong response to a negative story....I want you out frequently in front of the cameras, in the columns of your local and regional press and mobilizing your staff to wake up every morning with media in mind." But in this instance it might be best for Hughes' subordinates to stay away from the cameras and the reporters. It's tough to be an advocate for "America's story" on such occasions. The message delivered by the attack is all-too clear and has far more resonance than any public diplomacy spin that Hughes could cook up.
The full Hughes memo follows:
UNCLASSIFIED STATE 00006202 [122316Z JAN 06]FOR COMS, DCMS and PAOS from Karen Hughes
Subject: Speaking on the Record
1. During my recent trips and meetings with many of you, I have heard concerns about problems with getting clearance to speak on the record to reporters. I promised I would send out a message clarifying my policy on this issue, and providing what I hope is clear guidance for you all in dealing with the press. In this message, I want to share "Karen's Rules" in the hope that you all will have a better idea of what I expect, and how you can react.
2. Rule #1: Think advocacy. I want all of you to think of yourselves as advocates for America's story each day. I encourage you to have regular sessions with your senior team to think about the public diplomacy themes of each event or initiative. As a communicator, I know that it is important to get out in front of an issue or at best have a strong response to a negative story. One of my goals during my tenure at the State Department is to change our culture from one in which risk is avoided with respect to the press to one where speaking out and engaging with the media is encouraged and rewarded. I want you out frequently in front of the cameras, in the columns of your local and regional press and mobilizing your staff to wake up every morning with media in mind. As President Bush and Secretary Rice have stated, public diplomacy is the job of every ambassador and every Foreign Service officer.
3. Rule #2: Use what's out there. You are always on sure ground if you use what the President, Secretary Rice, Sean McCormack, or any USG spokesman has already said on a particular subject. I always read recent statements by key officials on important subjects before I do press events. My Echo Chamber messages are meant to provide you clear talking points in a conversational format on the 'hot' issues of the day. You never need clearance to background a journalist though you should certainly pay careful attention to how your comments may be used.
4. Rule #3: Think local. Because your key audience is your local--or regional--audience, you do not need clearance to speak to any local media, print, or television. And, you do not need clearance to speak to U.S. media in your country if you are quoting a senior official who has spoken on the record on a particular subject. When you are in the U.S., you do need PA clearance to speak to major U.S. media.
Rule #4: Use common sense to respond to natural disasters or tragedies. You do not need to get Department clearance to express condolences in the event of a loss, or express sympathy and support in response to a natural disaster. Obviously in the latter case do not commit USG resources for support or relief without approval from the Department; but do not wait for Department authorization to offer a statement of sympathy unless the individual or incident is controversial.
6. Rule #5: Don't make policy. This is a sensitive area about which you need to be careful. Do not get out in front of USG policymakers on an issue, even if you are speaking to local press. The rule of thumb to keep in mind is "don't make policy or usurp the prerogative of the Secretary or a senior Washington policy-maker to set policy direction." When in doubt on a policy shift, seek urgent guidance from PA or your regional public diplomacy office. Use your judgment and err on the side of caution.
7. Rule #6: No surprises. You should always give [the Office of Public Affairs] a heads-up in the event that you speak to U.S.-based media, particularly in the case of on the record television interviews. This ensures that those who should know are in the loop on what is happening.
8. Rule #7. Enlist the help of my office if you don't get a quick response for clearance or help. My staff and I are here to support you in your efforts to get the USG position on the record and out in the media. Both Sean McCormack and I are committed to making sure you have what you need to advocate a U.S. position on the key issues at your post.
9. I know this is a departure from how you all have operated over the years. But forceful advocacy of U.S. interests and positions is critical to our effort to marginalize the extremists and share a positive vision of hope for all countries and people. I encourage you to take advantage of opportunities to speak out, and look forward to our aggressive promotion of U.S. policy.
Aggressive promotion of US policy--that's the problem at the moment.
UPDATE: On Tuesday morning, AP reported that a provincial government of Pakistan had released a statement that said four or so "foreign terrorists" (they were not identified beyond that) had been killed in the CIA missile attack. And Pakistani intelligence officials told AP that Zawahiri had been invited to a dinner in the village but did not show up. Pakistan's Interior Minister Aftab Sherpao would only say that there was a "possibility" that foreigners--presumably, militants--were killed in the strike
For a man reported to have such a sharp legal mind, Judge Samuel Alito was certainly comfortable with his own ignorance, saying, "I don't know" 29 times during the hearings.
Despite the Democrats' strip-searching of Alito's written record, we Americans don't know much more about Alito than we did before. Will he vote to overturn Roe or respect it as settled law? We don't know. Does he believe there are limits to executive power or not? We don't know. Is he the most boring man in the universe or simply willing to play him on TV? We don't know.
What we do know is that something as momentous as the future course of the Supreme Court may rest more on the tears of the nominee's spouse than the (sometimes pontificating) questioning of the Senate Judiciary committee.
From Abu Ghraib to NSA spying, from the Cheney Energy Commission to the true cost of the prescription drug benefit, we've learned that it's what the Bush administration doesn't want us to know that hurts us. Add Alito's judicial philosophy to that long and growing list of state secrets.
From 1961 to 1966, the Reverend Martin Luther King Jr. wrote an annual essay for The Nation on the state of civil rights and race relations in America. His 1965 contribution was particularly strong. This article originally appeared in the March 15, 1965, issue. Dr. King's words, ominously ring as true today as the day they were written more than forty years ago.
"'Let Justice roll down like waters in a mighty stream,' said the Prophet Amos. He was seeking not consensus but the cleansing action of revolutionary change. America has made progress toward freedom, but measured against the goal the road ahead is still long and hard. This could be the worst possible moment for slowing down."
Five decades ago this years, in the fall of 1956, the young Rev. Martin Luther King Jr., newly prominent because of the role he played in the boycott by African-Americans of Montgomery, Alabama's segregated bus system, delivered one of the greatest speeches of his career at a Bible camp near a small midwestern community.
Speaking near the Wisconsin village of Green Lake, at a conference of the American Baptist Assembly and American Home Mission Agencies, King recognized a teaching moment. Reaching out to white Christians with a message about the need to join the burgeoning economic and social justice movement that would become the civil rights revolution of the 1960s, King asked his audience to ponder what the the Apostle Paul would say to them.
The contemporary prophet began, as he so often did, by addressing economic issues.
"I understand that you have an economic system in America known as Capitalism," said King, as he read an imaginary letter from the apostle. "Through this economic system you have been able to do wonders. You have become the richest nation in the world, and you have built up the greatest system of production that history has ever known. All of this is marvelous. But Americans, there is the danger that you will misuse your Capitalism. I still contend that money can be the root of all evil. It can cause one to live a life of gross materialism. I am afraid that many among you are more concerned about making a living than making a life. You are prone to judge the success of your profession by the index of your salary and the size of the wheel base on your automobile, rather than the quality of your service to humanity."
"The misuse of Capitalism can also lead to tragic exploitation," the letter continued. "This has so often happened in your nation. They tell me that one tenth of one percent of the population controls more than forty percent of the wealth. Oh America, how often have you taken necessities from the masses to give luxuries to the classes. If you are to be a truly Christian nation you must solve this problem. You cannot solve the problem by turning to communism, for communism is based on an ethical relativism and a metaphysical materialism that no Christian can accept. You can work within the framework of democracy to bring about a better distribution of wealth. You can use your powerful economic resources to wipe poverty from the face of the earth. God never intended for one group of people to live in superfluous inordinate wealth, while others live in abject deadening poverty. God intends for all of his children to have the basic necessities of life, and he has left in this universe "enough and to spare" for that purpose. So I call upon you to bridge the gulf between abject poverty and superfluous wealth."
Then, still channeling the words of the apostle, King turned to the question of race.
"I understand that there are Christians among you who try to justify segregation on the basis of the Bible," King's exposition of "Paul's Letter to American Christians" continued. "They argue that the Negro is inferior by nature because of Noah's curse upon the children of Ham. Oh my friends, this is blasphemy. This is against everything that the Christian religion stands for. I must say to you as I have said to so many Christians before, that in Christ "there is neither Jew nor Gentile, there is neither bond nor free, there is neither male nor female, for we are all one in Christ Jesus." Moreover, I must reiterate the words that I uttered on Mars Hill: 'God that made the world and all things therein . . . hath made of one blood all nations of men for to dwell on all the face of the earth.'
"So Americans I must urge you to get rid of every aspect of segregation," the letter continued. "The broad universalism standing at the center of the gospel makes both the theory and practice of segregation morally unjustifiable. Segregation is a blatant denial of the unity which we all have in Christ. It substitutes an "I-it" relationship for the "I-thou" relationship. The segregator relegates the segregated to the status of a thing rather than elevate him to the status of a person. The underlying philosophy of Christianity is diametrically opposed to the underlying philosophy of segregation, and all the dialectics of the logicians cannot make them lie down together."
Today, as we mark the 77th anniversary of King's birth in an era when some Christians still attempt to use their Bible as a justification for discrimination and hatred, it is more important than ever to remember the message of an apostle that was delivered fifty years ago.
John Nichols is the author of Against the Beast: A Documentary History of American Opposition to Empire (Nation Books), a book that historian Howard Zinn says "reminds us that our opposition to empire has a long and noble tradition in this country."
It sounds as if Al Gore is about to deliver what could be not just one of the more significant speeches of his political career but an essential challenge to the embattled presidency of George W. Bush.
In a major address slated for delivery Monday in Washington, the former Vice President is expected to argue that the Bush administration has created a "Constitutional crisis" by acting without the authorization of the Congress and the courts to spy on Americans and otherwise abuse basic liberties.
Aides who are familiar with the preparations for the address say that Gore will frame his remarks in Constitutional language. The Democrat who beat Bush by more than 500,000 votes in the 2000 presidential election has agreed to deliver his remarks in a symbolically powerful location: the historic Constitution Hall of the Daughters of the American Revolution. But this will not be the sort of cautious, bureacratic speech for which Gore was frequently criticized during his years in the Senate and the White House.
Indeed, his aides and allies are framing it as a "call to arms" in defense of the Bill of Rights and the rule of law in a time of executive excess.
The vice president will, according to the groups that have arranged for his appearance -- the bipartisan Liberty Coalition and the American Constitution Society for Law and Policy -- address "the threat posed by policies of the Bush Administration to the Constitution and the checks and balances it created. The speech will specifically point to domestic wiretapping and torture as examples of the administration's efforts to extend executive power beyond Congressional direction and judicial review."
Coming only a few weeks after U.S. Representative John Conyers, the ranking Democrat on the House Judiciary Committee, introduced resolutions to censure President Bush and Vice President Cheney, and to explore the issue of impeachment, Gore in expected to "make the case that the country -- including the legislative and judicial branches and all Americans -- must act now to defend the systems put into place by the country's founders to curb executive power or risk permanent and irreversible damage to the Constitution."
Don't expect a direct call for impeachment from the former vice president. But do expect Gore to make reference to Richard Nixon, whose abuses of executive authority led to calls for his impeachment -- a fate the 37th president avoided by resigning in 1974.
Gore's speech will add fuel to the fire that was ignited when it was revealed that Bush had secretly authorized National Security Agency to monitor communications in the United States without warrants. Gore will argue that the domestic wiretapping policy is only the latest example of the administration exceeding its authority under the Constitution.
With a Congressional inquiry into Bush's repeated violations of the Foreign Intelligence Surveillance Act scheduled to begin in February -- and with Bush already preparing to pitch an Nixon-style defense that suggests it is appropriate for the executive branch to violate the law when national security matters are involved -- Gore will articulate the more traditional view that reasonable checks and balances are required even in a time of war. And he will do so in a bipartisan context that will make it tougher for Republican critics to dismiss the former vice president's assertion that the Constitution is still the law of the land.
Former U.S. Representative Bob Barr, the Georgia Republican who served as one of the most conservative members of the House, plans to introduce Gore. Barr, an outspoken critic of the abuses of civil liberties contained in the USA Patriot Act critic who has devoted his post-Congressional years to defending the Bill of Rights, refers to the president's secret authorization of domestic wiretapping as "an egregious violation of the electronic surveillance laws."
Count on Gore, who has pulled few punches in the speeches he has delivered in recent months, to be at least as caustic.
"There is nothing but a lack of social vision to prevent us from paying an adequate wage to every American citizen whether he be a hospital worker, laundry worker, maid, or day laborer," Martin Luther King Jr. wrote thirty-five years ago in his book Where Do We Go From Here. "There is nothing except shortsightedness to prevent us from guaranteeing an annual minimum and livable income for every American family."
As the nation celebrates Dr. King's life this weekend, Sen. Edward Kennedy and a broad alliance of religious and community groups are honoring King's dream of social and economic justice with a bold new vision for a national living wage. The Let Justice Roll Campaign--a unique coalition of more than fifty groups including ACORN, The Center for Community Change, the United Methodist Church, and the Union of Reform Judaism, among others-- kicks off its "Living Wage Days" this weekend.
Events will be held across the country, including in Quincy, Mass, where Kennedy, who vigorously led the fight to boost the federal minimum wage in 2005, will speak on the critical need for an increase. If you or your organization would like to take part in the nation-wide movement, click here to sign up and here for a resource guide.
The timing of this effort couldn't be more appropriate. While the states are pushing ahead on the minimum wage (and the New York Times and other media have just begun to notice!) the federal minimum wage has been at a standstill for more than eight years. If we don't see an increase by September, it will be the longest the country has ever gone without one.
As Dr. King would say, "Now is the time for all of us to move forward, not retreat, on the road toward a more just society. Now is our timewe cannot wait."
UPDATE: Maryland's Wal-Mart Law Is Official!
Yesterday, Maryland's legislature overturned Republican Governor Robert Ehrlich's veto and passed the Fair Share Health Care Act, a bill we've been following since last April. Thisbreakthrough law makes Maryland the first state in the nation to require that Wal-Mart devote a share of its payroll to health benefits for employees. "We don't want to kill this giant," Del. Anne Healy, the bill's lead sponsor in the House, told the Washington Post. "We want this giant to behave itself."
More than half of Wal-Mart's 1.3 million employees nationwide are forced to rely on Medicaid programs because they're not covered by the company's health insurance. But Maryland's precedent could have a major impact on the rest of the country, where similar acts are being introduced in 33 other states.
We wrote back in April of '05, "[W]ith continued pressure from activists and legislative action from the states, America's corporations could face a future in which social responsibility is no longer optional." Yesterday's news is a big step in this direction.
We also want to hear from you. Please let us know if you have a sweet victory you think we should cover by e-mailing firstname.lastname@example.org.
Co-written by Sam Graham-Felsen, a freelance journalist, documentary filmmaker and blogger (www.boldprint.net) living in Brooklyn.
Confirmation hearings for Supreme Court nominees should always be about more than the abortion debate. And the Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to serve on the high court have touched on a broad variety of issues -- including the essential question of whether the court will address the Bush administration's abuses of authority by enforcing the Constitutional balance of powers.
But, as has been the case in confirmation hearings for the better part of three decades, the search for signals with regard to the nominee's stance on reproductive rights matters has played a dominant role in the advice and consent process that has played out in Washington this week.
In something of a deviation from many past confirmation hearings, however, and dialogue about choice has provided useful insights into Alito's activist approach to judging. And those insights have led an influential moderate Republican group to come out against the nominee.
Confirming fears that he intends to join the court with an activist agenda, Alito distanced himself from the language used by Chief Justice John Roberts during confirmation hearings last year, when Roberts sought to ease fears about whether he wanted to join the court with the purpose of constraining or eliminating abortion rights. In answering questions from senators, Roberts expressed the mainstream view that the 1973 Roe v. Wade decision, which established that a woman's right to privacy gives her control of decisions about whether or not terminate a pregnancy, is "settled law."
While U.S. Sen. Richard J. Durbin, D-Illinois, pressed Alito on the point, asking whether the nominee believes that the ruling in Roe is "the settled law of the land," the current nominee steadfastly refused to echo Roberts.
Suggesting that the meaning of "settled" is open to interpretation -- "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis" -- Alito went out of his way to maintain the option of revisiting Roe and, potentially, reversing it.
Earlier in the hearings, Alito told Judiciary Committee chair Arlen Specter, R-Pennyslvania, that, if he is confirmed, he will "approach the (choice) question with an open mind."
But Alito, who as a member of the Reagan administration in the 1980s asserted that there was no Constitutional protected right to choose, refused to distance himself from the statement that seems to indicate his mind is anything but open on the issue. "That was a true expression of my views at the time," said Alito, when asked about 1985 memos he wrote disputing the argument that the Constitution guarantees women control over their own bodies. At no point, though he was given numerous opportunities to do so, did Alito suggest that his opinion had evolved since 1985.
Notably, after Alito testified before the committee, the group Republican Majority for Choice (RMC), issued a statement that said, "There is no crystal ball to predict how a Justice Alito would rule in future cases; therefore we have closely monitored the confirmation hearings with the hope that Judge Alito would offer some clarifying statements that would allay our concerns about his record. Instead, he side-stepped the issue of whether or not the right to privacy in the Constitution extends to reproductive choice. He avoided answering whether Roe was settled law and existing precedent required a health exception to statutes limiting a woman's access to abortion."
"Without such assurances, we can only calculate his judicial philosophy on reproductive rights through the prism of his past actions and statements," the RMC statement continued. Referring to retiring Justice Sandra Day O'Connor, the critical swing vote on the court with regard to reproductive rights and other issues, the group added, "As the replacement for the architect of the 'undue burden' standard, the stakes are too high for RMC to support an appointee who outlined a blueprint to dismantle that very standard."
Accordingly, the organization announced its opposition to Alito's nomination. The opposition to Alito contrasts with the groups stance regarding Roberts, about whom RMC declared, "Liberal and reactionary opposition based on a circumstantial review of Justice Roberts' limited public record reflect an agenda predisposed to oppose all Republican nominees."
RMC is the largest pro-choice group in the Republican Party and has more influence than most moderate groups with GOP senators. In addition to Specter, three other Republican senators -- Rhode Island's Lincoln Chafee, and Mainers Susan Collins and Olympia Snowe -- serve on the Republican Majority for Choice advisory council. The question now is whether those senators were paying as close attention to Alito's testimony as the group they advise.
Needless to say, the same goes for other senators, Republicans and Democrats, who claim to support a right to choose.
After all, as the Republican Majority for Choice noted, "The reality is that Judge Alito would not have to vote to overrule Roe in order to be the architect of the denial of a woman's right to choose. He could give lip service to respecting Roe while upholding the numerous legislative efforts to chip away at reproductive freedom. The cumulative result is that Roe v. Wade and its progeny are rendered meaningless."
A few days before the New Year, soon after the New York Times reported that Bush had authorized the warrantless wiretapping of thousands of Americans, I called Elizabeth Holtzman. I remembered that Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons. And memories of Holtzman as a young leader on the House Judiciary Committee, during Watergate, made me sure she'd be a rigorous, thoughtful voice on this gravest of issues.
I reached Holtzman at her New York city law office. Anyone who knows Holtzman respects her level-headed, no-nonsense manner. That afternoon, however, her voice rose as she expressed outrage about the recent revelations of Bush's wiretapping, and she was quick to drew parallels to Watergate-era abuses. But Holtzman hesitated before agreeing to take on this assignment, asking for a few days to pull together her material and arguments. A few days later, she sent me an e-mail saying I'd have it a few days after the new year.
As promised, Holtzman got us the piece. Over the course of a week, working with senior editor Betsy Reed, Holtzman revised the article--adding more facts, reviewing arguments with legal colleagues, and updating (for example, the Pentagon study disclosing that proper bulletproof vests would have saved hundreds of lives came out just days before press date).
So, today, some thirty years after Watergate, a leader in the impeachment of Richard Nixon--former member of the House Judiciary Committee Elizabeth Holtzman--returns to the national stage, with her cover story in this week's Nation, to make the case for impeachment again: this time against President George W. Bush.
The article is especially powerful because of its sober tone, its rigorous argumentation and fastidious documentation. It is also moving because it is informed by Holtzman's personal experience and political history.
"I can still remember the sinking feeling in the pit of my stomach," Holtzman writes, "during those [Watergate] proceedings, when it became clear that the President had so systematically abused the powers of the Presidency and so threatened the rule of law that he had to be removed from office." Holtzman understood then, and understands now, that impeachment is a "tortuous process"-- the most extreme Constitutional act in a democracy, a "last resort." Voting for impeachment, she remembers, was "one of the most sobering and unpleasant tasks I ever had to undertake...[And] At the time, I hoped that our committee's work would send a strong signal to future Presidents that they had to obey the rule of law."
"I was wrong," Holtzman admits. And "now that President Bush has thrown down the gauntlet and virtually dared Congress to stop him from violating the law, nothing less [than impeachment] is necessary to protect our constitutional system and preserve our democracy."
This is not a partisan argument. In fact , as Steve Clemons notes in his fine blog, The Washington Note, "there are many moderate Republicans and Democracts who are disgusted by many of the same issues that Holtzman documents." And, as Holtzman argues eloquently, appealing to all citizens who care about our democracy: "A President, any President, who maintains that he is above the law---and repeatedly violates the law--thereby commits high crimes and misdemeanors, the constitutional standard for impeachment and removal from office."
For all Americans who want to preserve and protect our democracy, please read and circulate Elizabeth Holtzman's Nation article.
Use it to spearhead letter-writing campaigns to newspapers, to organize petition drives, and send it to your Representatives demanding that they support hearings and investigations into Presidential deceptions and abuses. And, as we head into this crucial 2006 election year, remember, as Holtzman points out, " If a Republican Congress is unwilling to investigate and take appropriate action against a Republican President, then a Democratic Congress should replace it."
Lest anyone accuse me of conflict-of-interest, let me fully disclose at the outset that this post is both highly self-interested and written to introduce you to a new project with which The Nation is directly involved and invested.
That said, I'm delighted to announce that the new RadioNation show, hosted by author, activist and award-winning radio personality Laura Flanders, debuted on the Air America Radio Network this past weekend in a new collaboration betweenThe Nation, Air America and Laura and her team.
Broadcast live for three hours each Saturday and Sunday from 7:00 to 10:00pm EST, and available online, the show features news and programming from around the country; special remote broadcasts; interviews with Nation writers, editors and Nation Institute journalism fellows; reader call-ins; a weekly journalists' roundtable; coverage of Nation events; live musical performances and cutting-edge political and cultural commentary.
We're psyched to also be producing a one-hour version of the new RadioNation, which is being provided free to noncommercial community and college stations. This is a universe in which Laura and her producer Steve Rosenfeld are well-known names. We're thrilled to be pulling off what to our knowledge is an unprecedented example of a political talk-show bridging the gap between commercial and non-commercial radio.
For general information, click here to check out the show's website, where you can read the show's blog, find out where you can hear it live, and listen to it online. This past weekend's episode featured material from Brooklyn's "Out of Iraq" event, a journalists' roundtable with Raw Story's Larisa Alexandrovna and The Nation's Bruce Shapiro, an interview with former Congressman Chris Bell, who first filed ethics charges against Tom DeLay, and a special commentary by Nation columnist Katha Pollitt.
So listen to the show. I think you'll like what you hear. And watch the RadioNation site, the EmailNation list and the pages of The Nation for information on upcoming special programming. Head's up: On January 14 and 15, Laura will be broadcasting live from Salt Lake City, where she'll meet with the city's progressive mayor, Rocky Anderson. And on January 21, RadioNation will broadcast live from the Sundance Film Festival in Park City to celebrate the 25th anniversary of Robert Redford's Sundance Institute.
Questions for Alito
As the second day of Samuel Alito's confirmation hearings get underway today, one of the very few things liberals and conservatives agree on regarding Bush's nominee to replace Sandra Day O'Connor on the Supreme Court is that if Alito is confirmed, the Court is likely to shift to the right, especially on abortion issues and in disputes over the separation of church and state.
Read and circulate The Nation magazine's Case Against Alito.
Then click here to implore your Senator to vote against the nomination.
We also want to know what you think. If you were a member of the Senate Judiciary Committee, what would you ask Samuel Alito about his record and judicial philosophy? Send us your questions, and as the hearings unfold, TheNation.com will publish the best of them.