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With news reports exposing the National Security Agency's previously secret spying on the phone conversations of tens of millions of Americans, what is the status of the U.S. Department of Justice probe of the Bush administration's authorization of a warrantless domestic wiretapping program?
The investigation has been closed.
That's right. Even as it is being revealed that the president's controversial eavesdropping program is dramatically more extensive – and Constitutionally dubious -- than had been previously known, the Justice Department's Office of Professional Responsibility (OPR) has informed Representative Maurice Hinchey that its attempt to determine which administration officials authorized, approved and audited NSA surveillance activities is over.
In a letter to Hinchey, the New York Democrat who has been the most dogged Congressional advocate for investigation of the spying program, OPR Counsel H. Marshall Jarrett explained that he had closed the Justice Department probe on Tuesday, May 9, because his office's requests for security clearances to conduct the investigation had been denied.
"I am writing to inform you that we have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program," Jarrett explained in his letter to Hinchey. "Beginning in January 2006, this Office made a series of requests for the necessary clearances. On May 9, 2006, we were informed that our requests had been denied. Without these clearances, we cannot investigate this matter and therefore have closed our investigation."
Who blocked the request? The obstruction has come from the very administration that the president asserts is operating "within the laws of our country" and cooperating with appropriate investigations.
The security clearances were blocked by the NSA, which has taken its direction on the spying program from the White House.
Hinchey, who along with Representatives John Lewis of Georgia and Henry Waxman and Lynn Woolsey of California requested the Justice Department inquiry in January, following initial reports regarding the NSA's warrantless wiretapping program, is furious.
"It is outrageous that people within the Bush administration have blocked an investigation into the role that members of the Justice Department played in establishing and executing this secret domestic spy program," says the New York Democrat. "We must get to the bottom of this and reveal who has stifled this investigation. The Bush administration cannot simply create a Big Brother program and then refuse to answer any questions on how it came about and what it entails. We are not asking for top secret information. We simply want to know how the domestic spy initiative evolved and who is behind what many legal scholars believe is an unconstitutional surveillance program. If the administration believes the program is legal then it should have no problem being forthright with Justice Department investigators as to how it was initiated and is being carried out."
The key questions that Hinchey and his colleagues want answered are these:
• Who within the DOJ first authorized the domestic surveillance program?
• What was that official's justification was for doing so?
• Had the Bush administration already enacted the program before getting original DOJ approval?
• What does the reauthorization process for the surveillance initiative entail?
• Why, according to news reports, did the then-Acting Attorney General refuse to reauthorize the program and why the Attorney General expressed strong reservations about the program and may have rejected it as well?
Hinchey is not prepared to let the matter rest.
The congressman is seeking to determine who in the administration prevented the OPR investigators from obtaining the security clearances needed to conduct an investigation. When he has that information, Hinchey says, he will press for a reversal of the denial of the clearances and the reopening of the investigation.
At the same time, Hinchey continues to push on a number of fronts for the opening of a full Congressional inquiry into the warrantless wiretapping program and administration efforts to stifle examinations of its domestic spying initiatives.
While he has often stood alone in the past, Hinchey's calls come as part of a Congressional chorus of concern expressed by key members of the House and Senate on Thursday.
The Senate's chief critic of the spying program, Wisconsin Democrat Russ Feingold, says that the latest revelations have raised a range of new concerns about the White House's apparent disregard for the Constitution and specific statutes requiring that a warrant be obtained before tapping into the telephone conversations of Americans on American soil.
"This Administration's arrogance and abuse of power should concern all Americans," says Feingold, who has proposed that the president be censured for authorizing the warrantless wiretapping program. "That the government may be secretly collecting, and using data mining to analyze, the phone records of millions of law-abiding Americans, as reported in the press today, is a frightening prospect. I am unaware of this program, and Congress needs to find out exactly what the Administration is doing and whether it is legal. It is time for the Administration to come clean with Congress and the American people. We can effectively fight terrorism and protect privacy, the rule of law, and separation of powers, but only if we have a President who believes in these principles."
President Bush's nomination of Air Force General Michael V. Hayden to direct the Central Intelligence Agency has opened a debate over whether the most fundamental principles of the American Republic remain will remain in place.
The founders who proposed to "chain the dogs of war" established civilian control over the military as an essential underpinning of the American experiment. Along with their determination to put in place a system of checks and balances, which they constructed to prevent presidents from leading the country into war without properly consulting Congress, Jefferson, Madison and their compatriots believed that giving civilians the means to manage the military was necessary if the nation they imagined was to be free.
Agonizingly aware of the abuses that had been imposed upon the former colonies by a British military accountable only to a distant and dictatorial king, the founders worried about the degeneration of the American experiment into a state of affairs similar to that of the Empire against which they had rebelled.
Sam Adams warned that, "Even when there is a necessity of military power, within the land... a wise and prudent people will always have a watchful & jealous eye over it." Elbridge Gerry, a delegate to the 1787 Constitutional Convention and the fifth vice president of the United States, argued that, "Standing armies in time of peace are inconsistent with the principles of republican Governments, dangerous to the liberties of a free people, and generally converted into destructive engines for establishing despotism."
Gerry was no radical. He expressed a common concern about the scope and power of the new nation's military, according to the essential review of thinking of the founders with regard to civilian control of the military compiled by Dr. Michael F. Cairo, a specialist in American foreign policy and the foreign policy process.
"At the beginnings of the Republic," recalls Dr. Cairo, in an explanation of the principle distributed by no less an authority than the U.S. State Department, "four basic premises conditioned how most Americans saw civilian control of the military. First, large military forces were viewed as a threat to liberty, a legacy of British history and the army's occupation in the colonial period. Second, large military forces threatened American democracy. This notion was linked to the ideal of the citizen-soldier and fears of establishing an aristocratic or autocratic military class. Third, large military forces threatened economic prosperity. Maintaining large standing armies represented an enormous burden on the fledgling economy of a new nation. Finally, large military forces threatened peace. The founders accepted the liberal proposition that arms races led to war. Thus, civilian control of the military arose from a set of historical circumstances and became embedded over time in American political thought through tradition, custom, and belief."
To cement those principles in place, the founders assured that a civilian, the president, would serve as commander-in-chief of the military. They also established the principle and the precedent that, as Alexander Hamilton noted in a discussion of the management of the military in the Federalist Papers, "the whole power of the proposed government is to be in the hands of the representatives of the people." To Hamilton's view, "This is the essential, and, after all, the only efficacious security for the rights and privileges of the people which is attainable in civil society."
In order to maintain meaningful civilian control of the military, however, one commodity has always been essential: honest intelligence about global threats and opportunities gathered and assessed by an independent agency that recognizes its responsibility to inform and empower civilian authorities -- as opposed to merely echoing the official line of the Pentagon.
This is a wall of separation every bit as important as the one the founders proposed to divide church and state. And the motivation was the same: a sense, born of painful experience, that only by maintaining a strict separation of powers and influences could the new Republic function across the long term as an entity distinct from the monarchical dictatorships of old Europe.
President Bush says his nominee to succeed scandal-hobbled Central Intelligence Agency director Porter Goss is "the right man to lead the CIA at this critical moment in our nation's history." But even if it was true that Hayden's background made him "the right man" for the job -- as assumption shot down by the fact of Hayden's involvement with the president's illegal program of eavesdropping on the phone conversations of Americans -- the appointment of a military commander to head the nation's premier civilian intelligence gathering and analysis agency would still by the wrong move at this or any other point in American history.
Any effort to collapse the wall of separation between an agency charged with gathering the intelligence needed to enable civilians to guide and manage the military -- as the Hayden appointment would surely do -- has to be seen as a radical assault on the founding principles of the Republic.
To his credit, House Speaker Dennis Hastert, the Illinois Republican who rarely differs with the White House, does see it that way.
"The Speaker does not believe that a military person should be leading the CIA, a civilian agency," explains Hastert spokesman Ron Bonjean.
Hastert argues that putting a general in charge of the "CIA would give too much influence over the U.S. intelligence community to the Pentagon."
The Speaker is right, and his position parallels that of House Intelligence Committee chair Peter Hoekstra, the Michigan Republican who has led the charge against Hayden's nomination. "I do believe he's the wrong person, the wrong place, at the wrong time," Hoekstra says of Hayden. "We should not have a military person leading a civilian agency at this time."
The only problem in Hoekstra's otherwise strong statement is his "at this time" qualification.
There is never a right time to undermine the fundamental American principle that civilians should control the military -- and that those civilians should have access to the independent intelligence that alone makes real the promise of such control.
Challenged by veteran CIA analyst Ray McGovern to explain why he had claimed to "know" before the invasion of Iraq that Saddam Hussein possessed weapons of mass destruction when that suggestion had been repeatedly called into question, Secretary of Defense Donald Rumsfeld tried to use former Secretary of State Colin Powell as a human shield.
From the crowd at an Atlanta gathering of the Southern Center for International Studies, McGovern asked: "Why did you lie to get us into a war that caused these kind of casualties and was not necessary?"
Rumsfeld replied, "Well, first of all, I haven't lied. I did not lie then. Colin Powell didn't lie. He spent weeks and weeks with the Central Intelligence Agency people and prepared a presentation that I know he believed was accurate, and he presented that to the United Nations. The president spent weeks and weeks with the Central Intelligence people and he went to the American people and made a presentation. I'm not in the intelligence business. They gave the world their honest opinion. It appears that there were not weapons of mass destruction there."
What Rumsfeld failed to mention is the hard evidence that Powell was pressured by Vice President Dick Cheney, Rumsfeld and others to make far more aggressive statements regarding WMDs than the Secretary of State thought to be appropriate.
British scholar Philippe Sands, the author of the very fine book Lawless World and perhaps the most dogged investigator of the internal discussions involving the cabinets of President Bush and British Prime Minister Tony Blair prior to the war, has revealed that Powell shared his doubts with his British counterpart before speaking to the United Nations in February, 2003.
Referring to a memorandum containing details of a meeting between Powell and British Foreign Secretary Jack Straw, Sands pointed out during a March, 2006, interview on MSNBC that, "[There's] now no shred of doubt and there's been no denial, you will have noticed, as to the contents of the memorandum that the decision was indeed taken in January before Colin Powell went [to the UN]. In fact, one other aspect that I've described in my book, Lawless World, that hasn't emerged so much in the New York Times memo is another memo which records a conversation between Colin Powell and his counterpart in the United Kingdom, Jack Straw, which makes it clear that in Colin Powell's eyes if there wasn't enough evidence for a second Security Council resolution, then there wasn't enough evidence to justify the U.S. going it alone."
"So," Sands explained, "Colin Powell was spot on, but it seems he was overridden by a president and others in the administration who were absolutely committed to taking the United States to war, tragically in erroneous circumstances, irrespective of what the inspectors found."
The fact that Powell had been presented with information that cast into doubt the claims he would make to the UN was confirmed by his former chief of staff at the State Department, Col. Lawrence Wilkerson, who said in a February, 2006, interview on the PBS program NOW: "[The] Intelligence Bureau and the State Department at this time we were preparing Secretary Powell dissented on one key issue. And they essentially said there was no active nuclear program in Iraq."
Wilkerson has detailed the work of Cheney, Rumsfeld and the rest of what refers to as their "cabal" to hijack what should have been a serious examination of the intelligence regarding Iraq. He has also revealed that Powell was troubled by the over-the-top claims contained in the "script" the White House initially asked him to read from at the UN. Ultimately, Powell was pressured by Cheney and others to deliver a version of the speech that, while toned down in some areas, still contained claims based on statements by sources that had been discredited within the intelligence community.
The point here is not to make a hero of Powell. There is every reason to continue the debate about whether Powell was duped or whether he gave in to the intense pressure from Cheney, Rumsfeld and their aides in order to maintain his political viability. There is no question, however, that the former Secretary of State and those around him quickly came to be embarrassed by the roles they were forced to play. Indeed, for most of the last year in which they worked together in the White House, the split between the Cheney and Rumsfeld camp and the Powell camp was so severe that the Vice President and the Secretary of Defense rarely spoke with the Secretary of State.
Of his own participation in the preparations for the UN speech, Wilkerson says, "It makes me feel terrible. I've said in other places that it... constitutes the lowest point in my professional life. My participation in that presentation at the UN constitutes the lowest point in my professional life. I participated in a hoax on the American people, the international community and the United Nations Security Council. How do you think that makes me feel? Thirty-one years in the United States Army and I more or less end my career with that kind of a blot on my record? That's not a very comforting thing."
Powell, it should be noted, has not distanced himself from Wilkerson's remarks.
As for Rumsfeld, he can say that he "did not lie." But he cannot claim that his statement in Atlanta was an honest one. He knows that his reference to Powell was an attempt to deflect blame from himself. He also knows the real story of how he and Cheney pressured Powell to make the "case" for war using dubious and discredited intelligence. And, above all, he knows that any attempt to link his own statements and actions with those of Powell is spin rather than an honest response to the most fundamental of all questions regarding this administration's high crimes and misdemeanors.
President Bush and his acolytes continually suggest that the occupations of Afghanistan and Iraq are "success stories" that just have not receiving proper attention from the U.S. media.
Unfortunately for the spin doctors who dressed the president up in flight-suit drag and made their Iraq "mission accomplished" declaration three years ago are having a hard time convincing serious observers of global affairs that they have achieved anything but disaster.
According to the The Failed State Index, an authoritative annual analysis produced by Foreign Policy magazine and the Washington, DC, based Fund for Peace, both Iraq and Afghanistan are in serious trouble.
The 2005 index, which ranks 148 states according to 12 social, economic, political, and military indicators based on data from more than 11,000 publicly available sources, ranked Iraq at number four and Afghanistan at number 10 on the list of the most dysfunctional countries on the planet.
According to the analysis, which employs internationally recognized methodology to assess violent internal conflicts and to measure the impact of strategies to create stability, "Despite holding successful elections and ratifying new constitutions, both Iraq (4th) and Afghanistan (10th) saw their scores decline in the 2006 edition of the index. Persistent insurgent violence undermined modest gains in the delivery of public services and establishment of political institutions, placing both nations among the 10 most vulnerable in the world."
Another country in which the Bush administration has been meddling with abandon, Pakistan, finds itself at No. 9 on the list -- although, in fairness, a natural disaster added to that nation's turmoil.
To be sure, there are other troubled countries: Sudan , where the Darfur crisis continues, is the first on the list; the Democratic Republic of the Congo is second, while Ivory Coast ranks third.
But the "failure" ratings for Iraq and Afghanistan stand out, as does the relatively low ranking of the United States.
In a telling measure of the damage done on the homefront by the Bush administration's focus on warmaking abroad, the United States is ranked as more vulberable than Norway, Sweden, Finland, Ireland, Switzerland, New Zealand, Australia, Canada, Belgium, Denmark, Austria, Japan, Netherlands, Singapore, Chile, Portugal, Great Britain and France.
The cost of misguided military adventures abroad is great for the countries that are invaded and occupied. But it is great, as well, for the countries that do the invading and occupying.
Had it not been for the accident of his birth in Iona Station, Ontario, John Kenneth Galbraith, the greatest public intellectual of the second half of the American century, would surely have been considered presidential timber. As it was, the man whose Canadian birth barred him from seeking the nation's highest office had to settle for shaping every presidency since that of Franklin Roosevelt – either as a trusted counselor to the occupant of the Oval Office, a wise critic or, as was frequently the case, both.
One of the last veterans of the Roosevelt's epic first term – during which he worked with the Agricultural Adjustment Administration – he would go on to advise FDR's National Defense Advisory Committee and then to serve as an administrator of the Office of Price Administration, where the man who was as quick with a quip as he was with economic charts and tables noted that he ''reached the point that all price fixers reach -- my enemies outnumbered my friends."
It will be his epigrams, his one-liners and his sharp asides that many of his friends will miss most about Ken Galbraith, who has died at age 97. The genius of the economics professor so long associated with Harvard and with most of the good – or at least tolerable – presidencies of the 20th century, was that he was never so impressed by his immense knowledge or his powerful positions that he could not find a humorous, and sometimes cutting, phrase with which to note the obvious.
When he was one of President Kennedy's most trusted aides – and, ultimately, the ambassador to India – Galbraith was dispatched to Vietnam to survey the country to which Kennedy was being advised by others to dispatch military forces. Galbraith, who tried harder than just about anyone else to avert the turn toward quagmire, sent back a memo in which he reflected on the difficulty of distinguishing "friendly jungle" from "Vietcong jungle" and asked, "[Who] is the man in your administration who decides what countries are strategic? I would like to...ask him what is so important about this real estate in the Space Age."
As Galbraith biographer Richard Parker noted in his essential review of his subject's attempt to prevent Cold War hawks from convincing Kennedy and then Lyndon Johnson from expanding U.S. military involvement in southeast Asia, it was in the fall of 1961 that, "Harvard economist John Kenneth Galbraith, then Ambassador to India, got wind of their plan--and rushed to block their efforts. He was not an expert on Vietnam, but India chaired the International Control Commission, which had been set up following French withdrawal from Indochina to oversee a shaky peace accord meant to stabilize the region, and so from State Department cables he knew about the Taylor mission--and thus had a clear sense of what was at stake. For Galbraith, a trusted adviser with unique back-channel access to the President, a potential US war in Vietnam represented more than a disastrous misadventure in foreign policy--it risked derailing the New Frontier's domestic plans for Keynesian-led full employment, and for massive new spending on education, the environment and what would become the War on Poverty. Worse, he feared, it might ultimately tear not only the Democratic Party but the nation apart--and usher in a new conservative era in American politics."
(Parker's recent biography, John Kenneth Galbraith: His Life, His Politics, His Economics [Farrar, Straus & Giroux], is necessary reading, as are Galbraith's own books, particularly 1958's The Affluent Society, with its Keyneseian indictment of "private wealth and public squalor" in American life, and 1992's brilliant The Culture of Contentment, which offers what is still the best explanation of the contemporary crisis in its observation that, "The long years of high budget deficits when they were not needed made it seemingly impossible to initiate stimulating public expenditures when they were now needed. The celebrated tax reductions for the upper-income brackets and the accompanying economics in welfare distribution had substituted the discretionary spending of the rich for the wholely reliable spending of the poor.")
The wittiest and wisest of "the best and brightest," Galbraith broke early and publicly with President Johnson over what had become the Vietnam War and helped the influential liberal group he had co-founded decades earlier, Americans for Democratic Action, move toward an opposition stance that confirmed that even Cold War liberals recognized the madness of engaging in a long-term ground war in southeast Asia.
Galbraith would serve as a distinguished father figure for the anti-war movement of the late 1960s and early 1970s, lending his towering presence to student protests and the campaigns of insurgent Democratic presidential candidates Eugene McCarthy in 1968 and George McGovern in 1972. Over the ensuing years, he would remain a steady critic of the imperial endeavors that would rob the U.S. treasury of the resources that could have built the great society.
Several years ago in a valedictory essay that drew together the vital themes of his long career as both an economist and as the Cassandra who warned of the overwhelming costs of misguided foreign policy , Galbraith observed, "We cherish theprogress in civilisation since biblical times and long before. But there isa needed and, indeed, accepted qualification. The US and Britain are in thebitter aftermath of a war in Iraq. We are accepting programmed death for theyoung and random slaughter for men and women of all ages. So it was in thefirst and second world wars, and is still so in Iraq. Civilised life, as itis called, is a great white tower celebrating human achievements, but at thetop there is permanently a large black cloud. Human progress dominated byunimaginable cruelty and death. Civilisation has made great strides over thecenturies in science, healthcare, the arts and most, if not all, economicwell-being. But it has also given a privileged position to the developmentof weapons and the threat and reality of war. Mass slaughter has become theultimate civilised achievement.
"The facts of war are inescapable - death andrandom cruelty, suspension of civilised values, a disordered aftermath," Galbraith continued. "Thusthe human condition and prospect as now supremely evident. The economic andsocial problems here described can, with thought and action, be addressed.So they have already been. War remains the decisive human failure."
The clarity of his vision led several generations of insurgent political strategiststo imagine a "Galbraith for President" candidacy, only to be jarred back toreality by the fact that, while Galbraith had been a U.S. citizensince the 1930s, the Constitutional bar on foreign-born candidatesdisqualified the most attractive contender from consideration. Few political realities frustrated Allard K . Lowenstein, the boldest advocate for a 1968 Democratic primary challenge to Johnson than the fact that Galbraith, his friend and frequent ally, could not be the candidate. George McGovern, who made no secret of his esteem for Galbraith, would have been delighted to make the former Roosevelt aide and Kennedy ambassador his vice presidential running mate in 1972 – a selection that surely could not have hurt, and might well have helped, the Democratic cause of that year. And how amusing it would have been in 1984 if the mentally agile 76-year-old Galbraith had been the Democratic nominee against his doddering 73-year-old contemporary, Ronald Reagan. As it was, he would be boomed by liberals now and again over the decades as a potential candidate for the Senate from his adopted home state of Massachusetts. But it was never to be, perhaps because Galbraith's healthy ego told him that he was best suited for the top job.
Galbraith professed to be amused by the "Galbraith for President" talk, as he was by Canadian suggestions that he might want to come back and serve as that country's prime minister. But he did, with tongue planted only slightly in cheek, imply an interest in presidential politics that was more than merely academic. When the 200th anniversary of the Constitution was celebrated in 1987, American Heritage magazine asked prominent Americans to suggest how they would amend the founding document. Galbraith's reply: "My answer is obvious: That clause that excludes Canadians and others of foreign birth from the Presidency and, possibly, from the Vice-Presidency as well. My whole life was altered, as also, quite clearly, was the history of the Republic. Henry Kissinger, I cannot doubt, vociferously agrees."
A quite serious law professor Jonathan Turley would suggest some years later that Galbraith provided the classic argument for elimination the Constitutional restriction that "denied the nation some of our best and brightest."
When Austrian-born actor Arnold Schwarzenegger was elected governor of California in 2003, there was a flurry of talk about amending the Constitution in order to allow Americans who had been born beyond the nation's borders to be seek the presidency. It seemed at the time that the best argument for the measure was the fact that Galbraith, at 94, was still physically fit, intellectually exceptional and as committed as ever to the liberal ideals that had powered the most successful Democratic presidencies – a combination that made him far more qualified not only than the current occupant of the Oval Office but than most of the Democrats who aspired to it.
With Galbraith's passing, we are left with one less counter to his observation that, "Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable."Thankfully, we are left, as well, with John Kenneth Galbraith's wisest piece of political advice; his suggestion that: "In all life one should comfort the afflicted, but verily, also, one should afflict the comfortable, and especially when they are comfortably, contentedly, even happily wrong."
When Democrats nominate a presidential candidate who is as capable as Galbraith was of articulating that sentiment, the liberalism that our late economist so loved will indeed be resurgent.
Thirty years ago, on April 26, 1976, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, delivered its final report detailing the lawlessness of U.S. intelligence agencies and the need for Congress to reassert the Constitutional system of checks and balances to order to rein in the cloak-and-dagger excesses of the executive branch of the federal government.
The committee, mercifully referred to by the last name of its chair, U.S. Senator Frank Church, D-Idaho, produced fourteen reports on the formation of U.S. intelligence agencies, the manner in which they had and were continuing to operate, and the abuses of law and of power -- up to and including murder -- committed by these agencies in Chile, the Congo, Cuba, Vietnam and other nations that experienced the attention of U.S. authorities in the Cold War era.
The committee also made 96 recommendations for how to do that. Some of those recommendations, such as the committee's call for creation of a permanent Senate Select Committee on Intelligence and for a ban on assassinations of foreign leaders, were implemented. But, as the current controversy over President Bush's warrantless wiretapping program illustrates, the potential abuses about which the Church Committee warned were not entirely -- nor even adequately -- thwarted.
It was not for lack of trying by Senator Church, one of the most courageous legislators in American history, and his colleagues on the committee. As Senator Church said when the committee completed its work: "The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened."
The fundamental charge of the Church Committee to the Congress and the American people was not found in the details of the reports specific allegations and recommendations. Rather, it was in the committee's bold reassertion of the founding principle of the Republic -- that only by checking and balancing the excesses of the executive branch can basic liberties be defended.
To renew the inner strength of the nation, the Church Committee first recalled the threats that arise when the executive branch is allowed to operate in secrecy and without constraint:
The natural tendency of Government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.
Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which 'keep men free. In the field of intelligence those restraints have too often been ignored.
The three main departures in the intelligence field from the constitutional plan for controlling abuse of power have been:
(a) Excessive Executive Power.
In a sense the growth of domestic intelligence activities mirrored the growth of presidential power generally. But more than any other activity, more even than exercise of the war power, intelligence activities have been left to the control of the Executive.
For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates. The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency.
Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.
(b) Excessive Secrecy.
Abuse thrives on secrecy. Obviously, public disclosure, of matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves.
Those within the Executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American public, as well, should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.
Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.
(c) Avoidance of the Rule of Law.
Lawlessness by Government breeds corrosive cynicism among the people and erodes the trust upon which government depends.
Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law. As intelligence operations developed, however, rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code. The experience of our investigation leads us to conclude that such rationalizations are a dangerous delusion.
Senator Church was even blunter in his rejection of the "spin" that would have Americans believe their government is protecting them or spreading democracy when it employs secret electronic eavesdropping at home or "covert action" abroad. Covert action, explained the Idaho Democrat, is nothing more than "a semantic disguise for murder, coercion, blackmail, bribery, the spreading of lies, whatever is deemed useful to bending other countries to our will."
The Church Committee's plan to counter the abuses of the executive branch boiled down to a call for Congress to recognize anew that:
The Constitutional amendments protecting speech and assembly and individual privacy seek to preserve values at the core of our heritage, and vital to our future. The Bill of Rights, and the Supreme Court's decisions interpreting it suggest three principles which we have followed:
(1) Governmental action which directly infringes the rights of free speech and association must be prohibited. The First Amendment recognizes that even if useful to a proper end, certain governmental actions are simply too dangerous to permit at all. It commands that "Congress shall make no law" abridging freedom of speech or assembly.
(2) The Supreme Court, in interpreting that command, has required that any governmental action which has a collateral (rather than direct) impact upon the rights of speech and assembly is permissible only if it meets two tests. First, the action must be undertaken only to fulfill a compelling governmental need, and second, the government must use the least restrictive means to meet that need. The effect upon protected interests must be minimized.
(3) Procedural safeguards -- "auxiliary precautions" as they were characterized in the Federalist Papers -- must be adopted along with substantive restraints. For example, while the Fourth Amendment prohibits only "unreasonable" searches and seizures, it requires a procedural check for reasonableness-the obtaining of a judicial warrant upon probable cause from a neutral magistrate. Our proposed procedural checks range from judicial review of intelligence activity before or after the fact, to formal and high level Executive branch approval, to greater disclosure and more effective Congressional oversight.
It is notable that Senator Church was especially concerned about the threat posed by the National Security Agency if a future president were to abuse those powers.
"I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss," explained Church. "That is the abyss from which there is no return."
Three decades after the Church Committee submitted its final report, President Bush admits to ordering the NSA to spy on the telephone conversations of Americans on American soil without obtaining warrants.
Most of Congress stands idly by.
Not so the senator who has most aggressively challenged the Bush administration's reckless disregard for the Constitution that provides Americans with both a Bill of Rights and a system of checks and balances to protect them.
Senator Russ Feingold, the Wisconsin Democrat who has asked the Senate to censure Bush for ordering the NSA to launch the warrantless wiretapping program, marked the anniversary of the issuance of the Church Committee's final report by describing the committee's work and the challenge to executive excess that it produced as "a watershed moment that spurred Congress to assume its critical role in overseeing the U.S. intelligence community." In particular, he noted, "The Church Committee's report also led to legislation requiring the executive branch to inform the congressional intelligence committees of all intelligence activities."
"Yet," Feingold added, "for over four years, the Bush Administration has ignored this law, hiding its illegal warrantless surveillance program from the full committees, and continuing to deny the committees critical information. At a time when Congress has failed to assert its constitutional and statutory role in conducting intelligence oversight, we should recall the groundbreaking efforts of the Church Committee, and the responsibilities that came with the establishment of the congressional intelligence committees. The American people have entrusted us to protect them from our enemies while ensuring that our government upholds the law and the Constitution. We must renew our commitment to that charge. As Senator Church said 30 years ago today, ‘Our experience as a nation has taught us that we must place our trust in laws, and not solely in men. The founding fathers foresaw excess as the inevitable consequence of granting any part of government unchecked power.'"
The atomization of New Orleans has done more to destroy the political fabric of the post-Katrina city than even some of the most concerned observers had dared imagine.
In a community that last elected a white mayor when Richard Nixon was serving as president, three white candidates – Louisiana Lieutenant Governor Mitch Landrieu, wealthy civic leader Ron Forman and Republican lawyer Rob Couhig – collected 56 percent of the vote in the first mayoral vote after last fall's hurricane swept much of the city's minority population away to Houston, Atlanta and more distant locations.
With turnout among the African-American diaspora low, Mayor Ray Nagin, the most prominent African-American candidate, won just 38 percent. He'll face Landrieu, who took 29 percent, in a May 20 runoff election.
This is the first time since 1982 that a New Orleans mayor has been forced into a runoff, and if the May voting breaks along racial lines, the incumbent could become another victim of Katrina.
Will such a split occur?
Certainly the federal government, which should have worked from the start to assure that a natural disaster did not shift the political dynamic in a major American city that has long been under Voting Rights Act oversight, has done little to avert it.
From the White House's shifting of funds away from infrastructure programs that could have protected the city's poorest neighborhoods, to President Bush's initial neglect of the crisis, to the move-‘em-on-out response of federal agencies to the plight of displaced residents, to House Speaker Dennis Hastert's speculation about whether it made sense to rebuild, to the disengagement of the Justice Department from the serious debates about voting rights that arise when citizens have been turned into refugees, Washington has been no friend to democracy in New Orleans.
Sincere pundits will long debate whether the pattern of neglect was intentional. But few deny that it is to the advantage of the Republican Party that currently dominates federal politics to break up the urban voting bloc that has made New Orleans one of the most Democratic cities in the south and kept Louisiana far more politically competitive – with a Democratic governor and a Democratic U.S. Senator – than most of its neighbors.
Those who would prefer see the political complexion of New Orleans shift may not get their wish, however.
A May 20 result that divides the city along racial lines is at least a bit less likely in a Nagin-Landrieu runoff than it would have been in a contest between the mayor and one of the other white contenders.
Nagin was beat an African-American foe in 2002 with strong backing from the white community. While the mayor's reelection campaign was targeted minority voters – stirring some negative attention nationally when he suggested that New Orleans would emerge as a "chocolate city" -- surveys suggest that he retains a base of support among white voters. Nagin retains the potential to build on that base as he competes in the runoff.
Landrieu is the son of legendary former Mayor Maurice Edwin "Moon" Landrieu, who was one of the few white politicians to fight the segregationists in the 1960s and who went on to serve as former President Jimmy Carter's Secretary of Housing and Urban Development. The son has worked to maintain the multiracial coalition his father built.
Speaking to supporters Saturday, Landrieu struck the right note for a runoff campaign that will test the political maturity not just of New Orleans but America. "Today in this great American city, African-American and white, Hispanic and Vietnamese, almost in equal measure came forward to propel this campaign forward and loudly proclaimed that we in New Orleans will be one people, we will speak with one voice and we will have one future," he said. "We have said loudly and clearly that we will push off the forces of division and that we will find higher, common ground than we tried to find on that fateful day, Aug. 29, 2005, when we literally found ourselves in the same boat. We were in the same boat then and we are in the same boat now."
No matter who wins the runoff, everyone who believes that America can and must continue to promote a politics of empowerment and harmony should hope that Landrieu proves to be right about the potential to unite a city that nature and Washington have done so much to break apart.
Inside the Beltway, legislators have been slow to support moves to censure or impeach President Bush and other members of the administration. Only 33 members of the U.S. House of Representatives have signed on as cosponsors of Congressman John Conyers' resolution calling for the creation of a select committee to investigate the administration's preparations for war before receiving congressional authorization, manipulation of pre-war intelligence, encouraging and countenancing of torture, and retaliation against critics such as former Ambassador Joe Wilson, with an eye toward making recommendations regarding grounds for possible impeachment. Only two members of the Senate have agreed to cosponsor Senator Russ Feingold's proposal to censure the president for illegally ordering the warrantless wiretapping of phone conversations of Americans.
Outside the Beltway, legislators are far more comfortable with censure and impeachment -- at least in the state of Vermont. Sixty-nine Vermont legislators, 56 members of the state House and 14 members of the Senate, have signed a letter urging Congress to initiate investigations to determine if censure or impeachment of members of the administration might be necessary.
The letter, penned by state Rep. Richard Marek, a Democrat from Newfane, where voters made international news in March by calling for the impeachment of Bush at their annual town meeting, suggests that Bush's manipulations of intelligence prior to the launch of the Iraq war, his support of illegal domestic surveillance programs and other actions have created a circumstance where Congress needs to determine whether the time has come for "setting in motion the constitutional process for possible removal from office."
Noting that Newfane and a half dozen other Vermont communities have called for impeachment, as has the state Democratic Party, Marek explained to the Rutland Herald, "Vermonters from across the state have expressed concerns with the president's actions and have displayed that through resolutions, meetings and petitions. I thought it was important to put our voices down as supporting an investigation and possible censure and impeachment."
The letter, which will be delivered to members of the state's Congressional delegation -- including Congressman Bernie Sanders, a cosponsor of the Sanders resolution -- is just one of a number of fresh impeachment-related initiatives in Vermont.
Representative David Zuckerman, a Burlington legislator who is a member of Vermont's Progressive Party, plans to introduce a resolution next week asking for the state legislature to call on the U.S. House to open impeachment hearings.
Parliamentary procedures developed by then Vice President Thomas Jefferson in the early years of the United States, and still used by the U.S. House of Representatives as a supplement to that chamber's standing rules, have been interpreted as giving state legislatures at least some authority to trigger impeachment proceedings, and Zuckerman's resolution responds to calls from Vermonters to take the dramatic step.
Several county Democratic parties in Vermont have urged the state legislature to take advantage of the opening created by "Jefferson's Manual," which suggests that impeachment proceedings can be provoked "by charges transmitted from the legislature of a state.
There's no question that Vermont is in the lead, but legislators in other states are also exploring their options for pressuring Congress to act on articles of impeachment. A trio of Democratic state representatives in Illinois -- Karen A. Yarbrough and Sara Feigenholtz from the Chicago area and Eddie Washington from Waukegan -- have introduced a measure similar to the one Zuckerman is preparing in Vermont.
The bill urges the Illinois General Assembly to "submit charges to the U. S. House of Representatives to initiate impeachment proceedings against the President of the United States, George W. Bush, for willfully violating his Oath of Office to preserve, protect and defend the Constitution of the United States and if found guilty urges his removal from office and disqualification to hold any other office in the United States."
In Pennsylvania, State Senator Jim Ferlo, D-Pittsburgh, has launched a public campaign urging his constituents to sign petitions calling for Congress to launch an impeachment inquiry. Ferlo, a former Pittsburgh City Council president, says its entirely appropriate for state officials -- and citizens -- to add their voices to the impeachment debate.
"Impeachment proceedings are now the most important issue facing our nation," the state senator explains. "The debate and opinions expressed should not be limited to the views of journalists, legal scholars, intelligence officials and just a few politicians. Every American must confront this issue and speak out loudly and clearly. This is one opportunity to do so."
There is one good thing that comes with "conservative" Republican hegemony: Proof positive that the Grand Old Party is no longer even feigns interest in fiscal responsibility.
Complete Republican control of the White House and Congress has unleashed a pork-barrel spending spree of unprecedented proportions. Deficit spending in on the rise. The national debt is soaring. And the greying pachyderms of the GOP just keeps dipping into the federal treasury to pay for more pet projects.
With the federal government on track to spend $371 billion more than it takes in this year, these "fiscal conservatives" are on a spree that the rest of us will be paying off for decades to come.
And they show no sign of slowing down.
The latest example of how powerful Republicans are porking up the budget comes from Mississippi's Republican delegation, and even by the standards of this Congress it's a pork-barrel pig out.
Mississippi Senators Trent Lott and Thad Cochran, both self-proclaimed "conservatives," are busy securing Congressional approval for a $700 million scheme to relocate a Gulf Coast railroad line. Lott, the Dixiecrat-hailing former Senate Majority Leader who hopes to return to the chamber's leadership after Tennessee's Bill Frist steps down in January, is the prime mover of the budget pen on this one -- and the prancing Prince of Pork really has outdone himself.
The railroad line in question was just repaired at a cost of $250 million but, after that money was spent, Lott and Cochran suddenly figured our that the tracks needed to go elsewhere – so they added their $700 million "earmark" to a $106.5 billion emergency defense spending bill in the Senate.
Earmarks, for those who don't speak Washingtonese, are the legislative tricks that powerful members of Congress use to secure funding for homestate projects without going through standard budget reviews. They are usually attached to major spending bills, in hopes that a few hundred million in additional expense will not be noticed amid the hundreds of billions that are being allocated.
The earmark that Lott and Cochran have come up with is the largest in the history of the Congress. And it may well be the sleaziest.
The railroad line that's slated for removal is in great shape. And no one seriously suggests that moving it a slight distance will make it significantly more secure if a hurricane hits the region – as they regularly do. So why is the federal treasury being raided to pay for the relocation?
The CSX freight line is in the way of a grand plan by wealthy, politically-connected developers in Mississippi to erect new casinos and hotels along the beaches that were just devastated by Hurricane Katrina. They want to move a perfectly good railroad line to open up land so that they can, in the words of the Christian Science Monitor , "turn Mississippi's struggling Gulf Coast into Las Vegas South."
That's right. Lott and Cochran, who when they aren't bragging about their "fiscal conservatism" are busy preaching about the need to restore "moral values" to America, are grabbing $700 million from federal taxpayers to clear the way for a new Sin City.
Some will cry "hypocrisy." A better description is "business as usual" in Republican-run Washington.
When Democrats in my home state of Wisconsin voted at their state party convention last spring to call for the impeachment of President Bush and Vice President Dick Cheney, they added the name of Secretary of Defense Donald Rumsfeld to the list.
That still sounds like an appropriate roster for removal.
While there is much attention this week to the call from an ever widening circle of former military commanders in the failed Iraq War and other recent U.S. misadventures -- including a half dozen retired generals -- who have called for Rumsfeld's firing, how much sense does make to get rid of the Secretary of Defense when his actions have been so clearly a reflection of goals and strategies developed by the president and vice president?
No doubt, Rumsfeld has mishandled the Iraq invasion and occupation.
But would another Secretary of Defense chosen by Bush and Cheney do any better?
Doesn't the current crisis have more to do with the administration's misguided project of regime change and nation building than with the approach that Rumsfeld has taken to it?
If the problem is with the project, then shouldn't the focus be on the serious task of removing Bush and Cheney, rather than the cosmetic change of names of the office of the Secretary of Defense?
While there is no question that Rumsfeld should go, there ought to be some question about whether extracting one rotten apple from the barrel will cure what ails this administration.
It is true that the forced removal of Rumsfeld could further weaken a president whose popularity is already in steep decline. But it could also create the false impression of a course correction even as Bush and Cheney -- and Secretary of Defense Joe Lieberman -- steer the U.S. further into quagmire.