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John Nichols

John Nichols

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Checks, Balances & an FBI Raid on Congress

No one seriously believes that William Jefferson is going to survive the political train wreck he has made of his congressional career. Even the notoriously forgiving voters of New Orleans – who just reelected gaffe-prone Mayor Ray Nagin – are not going to be comfortable with a congressman who hid $90,000 in cash in his refrigerator and got caught on an FBI tape talking about taking bribes.

The question now is whether the system of checks and balances established by the founders in 1787 will be another victim of the train wreck.

When Federal Bureau of Investigation agents raided Jefferson's suite of offices in the Rayburn House Office Building, they committed an act unheard of even in the darkest days of the Republic. On orders from the executive branch, federal agents entered the office of a member of the legislative branch and spent hours going through that office and removing materials they deemed necessary to an investigation.

Even House Speaker Dennis Hastert, the Illinois Republican who has been no great friend of the Constitution, awakened from the comatose state that has usually characterized his response to White House assaults on the system of checks and balances.

Hastert boldly defended the founding document and the Congress he is charged with maintaining as a separate and equal branch of government. The Speaker reportedly telling the president that the raid on Jefferson's office was a direct violation of the Constitution – in general, of the principle of separation of powers, and in particular of the protections afforded the legislative branch by the "Speech and Debate" clause of the Constitution.

In a lengthy statement of concern, Hastert argued that, "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case. Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress. Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

Is this just a tempest in Teapot Dome that is our corrupt Capitol? No. Not even the most Constitutionally-abusive administrations dared go so far as to raid congressional offices. It is true that John Adams, in his push to narrowly define the Constitution at the outset of the American experiment, did jail a congressional critic, Vermont Representative Matthew Lyon, for suggesting that the second president had displayed "a continual grasp for power [and] unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice." But Adams, who would be voted out of office for his disregard Constitution, never dared dispatch armed officers to the Capitol.

Stung by the criticism of its overreach, the Bush administration has scrambled to suggest that what is at issue is merely the wrongdoing of one congressman. But they conveniently neglect to address the precedent that will be established if Congress fails to challenge the White House and the Department of Justice.

If this was just about Jefferson, the raid would not have stirred an outcry. Every indication is that the Louisianan congressman has betrayed his oath of office and abused the privileges of his position in ways that would make Tom DeLay blush.

But this is not just about Jefferson, who would be in plenty of trouble even without whatever information might have been garnered from the raid on his office. Remember, the FBI has the congressman on tape making classically incriminating comments.

This is about an executive branch that has already pushed the limits of its power on issues ranging from invading and occupying countries without a declaration of war to spying on Americans without a warrant and is now undermining whatever remains of the Constitutionally-mandated separation of powers between the White House and the Congress.

Attorney General Alberto Gonzales, the former White House counsel who never encountered a law he wasn't willing to break in order to extend the powers of the president he has served far more diligently than he has ever served his country, can described the search as "a unique step in response to a unique set of circumstances."

With all due respect to Gonzales, the attorney general has a troubling track record of repeatedly responding to "unique sets of circumstances" in a manner that shreds the Constitution. And he has surely done so in this case.

Instead of working with congressional authorities, Gonzales got a judge to authorize the raid and, for the first time in the American history sending agents of the executive branch into action against a member of the legislative branch.

To their credit, Republican leaders of the House have reacted with appropriate fury.

Speculating about "whether people at the Justice Department have looked at the Constitution" lately, House Majority Leader Rep. John Boehner, R-Ohio, declared that "Congress will clearly speak to the issue of the Justice Department invasion of the legislative branch."In explaining the character of that defense, Boehner said, "I've got to believe at the end of the day it's going to end up across the street at the Supreme Court. I don't see anything short of that."Hastert left no doubt that he saw the need to address the issues raised by the raid as essential to the maintenance of the provisions of the Constitution written to protect the independence of the Congress.

"The Founding Fathers were very careful to establish in the Constitution a Separation of Powers to protect Americans against the tyranny of any one branch of government. They were particularly concerned about limiting the power of the Executive Branch," explained the speaker. "Every Congressional Office contains certain Legislative Branch documents that are protected by the Constitution. This protection-as the Supreme Court has repeatedly held-is essential to guarantee the independence of the Legislative Branch. No matter how routine and non-controversial any individual Legislative Branch document might be, the principles of Separation of Powers, the independence of the Legislative Branch, and the protections afforded by the Speech or Debate clause of the Constitution must be respected in order to prevent overreaching and abuse of power by the Executive Branch."

Hastert needs to wage this battle. And he ought not be mocked for the seriousness with which he has approached it.

This is an essential fight over whether a president and his minions can do as they please. To be sure, in this dark interregnum, it is not the only fight, as has been well noted by Senator Russ Feingold, D-Wisconsin, Congressman Maurice Hinchey, D-New York, and others in their struggle to hold this administration to account for its illegal domestic surveillance program. But if the legislative branch does not push back at the point when agents of the executive branch are raiding the offices of congressmen without the ascent of the Congress, then surely there is no chance that the separation of powers protection will be asserted with regard to the many other Constitutional abuses committed by this administration.

William Jefferson, D-Wall Street

Nancy Pelosi has shown little interest in holding George Bush to account, as evidenced by House Minority Leader's determination to distance herself from discussions of censuring – let alone impeaching – the president for the high crimes and misdemeanors that have characterized his tenure.

So it not all that surprising that Pelosi, despite her promise to "clean up" Congressional corruption, has been slow to demand genuine accountability from a member of the House Democratic Caucus. The minority leader has backed an ethics committee inquiry into charges against Congressman William Jefferson, D-Louisiana, the "star" of a Federal Bureau of Investigation tape in which what sounds like a bribe of $100,000 is accepted. But she so far has refrained from suggesting the obvious: that it is time for the severely scandal-plagued Jefferson to resign.

Let's be clear, if Tom DeLay needed to go, so does Bill Jefferson.

What makes Pelosi's refusal to cut Jefferson loose so disappointing is the fact that Democrats owes the congressan from New Orleans no loyalty. Indeed, if ever there was a member of Congress who merited abandonment by his party, official censure and a hasty exit from the legislative branch, it is William Jefferson.

Putting aside the bribery probe, Jefferson has a horrific record of breaking with his Democratic colleagues to sell out his constituents, his country and the poorest people in the world. He may be a Democrat, but on the issues that really matter Jefferson has served the Bush administration and Wall Street more diligently than a number of Republicans.

Jefferson's has been one of the steadiest Democratic votes for the president's foreign policy agenda. The Louisianan voted to authorize Bush to use force against Iraq, consistently supports emergency "supplemental" spending to maintain the occupation of that country, and favors deployment of the "Star Wars" Strategic Defense Initiative. He voted for the USA Patriot Act when it was rushed through Congress in 2001, and was a big backer of Vice President Cheney's national energy policy. And, though his record on social issues is mixed, Jefferson has on a number of occasions cast his lot with the White House and its social-conservative allies to help enact restrictions on abortion, school prayer initiatives and a Constitutional amendment banning same-sex marriage.

But Jefferson's deepest loyalty is not to the Bush administration. Rather, it is to big business. In a Congress where there are plenty of Democrats who are friendly to the legislative agenda of corporate America, Jefferson is devoted to it. This Democrat puts more than a few responsible Republicans to shame when it comes to doing the bidding of Wall Street.

After a key export tax break for U.S. manufacturers was identified as an illegal trade subsidy by the World Trade Organization, Jefferson and most -- though not all -- House Republicans voted to provide $140 billion in new corporate tax cuts for impacted businesses. He has voted again and again for bankruptcy law "reforms" that favor the interests of banks and credit card companies over those of working families. And he is the king of the dwindling circle of free-trade Democrats.

Jefferson was not just one of "The CAFTA 15" – the group of Democrats who cast critical votes to save the Central American Free Trade Agreement after the administration was abandoned by 27 Republicans when the agreement came up for House approval in July, 2005 -- he was the chief Democratic cheerleader for that bad deal. When the corporate-funded Democratic Leadership Council sponsored a pro-CAFTA teleconference before the vote, there was Jefferson proclaiming: "I'm supporting CAFTA because I believe it's in the best interests of our country."

The Louisiana Democrat, who is a senior member of the House Ways and Means Committee's powerful subcommittee on Trade, did similar service during debates over trade deals with Chile, Singapore and Australia. And he was an essential Democratic supporter of normalizing trade relations with China in 2000, arguably the most devastating trade deal since the North American Free Trade Agreement of six years earlier, which Jefferson also backed.

But Jefferson's most unsettling advocacy on behalf of corporate-friendly trade agreements that have undermined job security and wages, environmental protection and human rights in the U.S. and abroad came in 1998, when the congressman was an outspoken advocate for the African Growth and Opportunity Act. AGOA, as that deal was known, was dubbed "NAFTA for Africa" by the business press. Condemned by South African President Nelson Mandela and Africa trade unions that saw it as a move to make it even easier for multinational corporations to exploit the continent's workers and resources, AGOA was described by a leading foe, Congressman Jesse Jackson, Jr., D-Illinois, as the "Africa Recolonization Act."

During the House debate on the issue, Jackson pointed out that, "The AGOA extends short-lived trade "benefits" for the nations of sub-Sahara Africa. In exchange for these crumbs from globalization's table, the African nations must pay a huge price: adherence to economic policies that serve the interests of foreign creditors, multinational corporations and financial speculators at the expense of the majority of Africans."

The Illinois Democrat asked, "Whose interests will the AGOA advance? Look at the coalition promoting it -- a corporate who's who of oil giants, banking and insurance interests, as well as apparel firms seeking one more place to locate their low-paying sweatshops. Some of these corporations are already infamous in Africa for their disregard for the environment and human rights."

The coalition promoting African Growth and Opportunity Act was able to counter the criticisms from Mandela, Jackson and others by highlighting the enthusiastic support for the deal by a prominent member of the Congressional Black Caucus. That member, William Jefferson, gleefully declared that, "Africa is a reservoir of opportunities for American businesses."

(Among the bribes Jefferson is alleged to have accepted are more than $400,000 in payments to help telecommunications firms do business in Nigeria and other West African nations.)

The split in the black caucus back in 1998 helped secure passage of AGOA in a form that was much worse than might have been the case if Jefferson and others had echoed the honest concerns expressed by Jackson.

No wonder that, in his latest campaign finance filing, Jefferson reported that almost 79 percent of the political action committee contributions to his reelection campaign -- $340,912 -- came from business interests, while just 19 percent came from organized labor.

Even in his campaign coffers, William Jefferson has the profile of a Republican – and an unsavory Republican at that.

"An Affront to the Constitution"

It's an election year, so, quick, let's amend the Constitution.

Absurd as it sounds, that is the thinking of the Senate Republican leadership, which is rushing to draft, debate and endorse a whole new section of the Constitution by the week of June 5.

Why the hurry to tinker with the 219-year-old document?

Poll numbers for Congressional Republicans are in a bad place, so bad that there is serious talk about the prospect that the party could lose the House or Senate, or perhaps both chambers, in November. And the approval ratings for President Bush, the party's campaigner-in-chief, are trolling in Nixon-during-Watergate depths that suggest he may not be able to rally the conservative base as he did so effectively in 2002 and 2004.

Hence the hurry to dig up the next big-bang issue for the GOP.

Senate Majority Leader Bill Frist, R-Tennessee, thinks he has struck political paydirt. He wants to amend the Constitution to declare that, along with freedom of speech, assembly and worship, Americans also have the right to discriminate against gays and lesbians. Frist wants the Constitution to declare not just that "Marriage in the United States shall consist only of the union of a man and a woman" but that "Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

So much for state's rights. And you can forget about that life, liberty and the pursuit of happiness business.

The Grand Old Party's in trouble, so someone is going to have to pay, and in this case it's same-sex couples who dare to fall in love and then seek the same basic protections for their relationships that everyone else expects.

The rush to amend the Constitution in time to bring the marriage debate front and center for the fall campaign – now that the immigration issue has blown up on the party – had Senate Republicans so preoccupied Thursday that they bent the rules to the breaking point.

Senate Judiciary Committee chair Arlen Specter, R-Pennsylvania, scheduled the session where the committee voted 10-8 to approve the amendment in a room where access by the press and the general public was restricted. When Senator Russ Feingold, the Wisconsin Democrat who ardently opposes the amendment, suggested that perhaps the work of amending the Constitution ought to be conducted in a more open manner, Specter growled, I don't need to be lectured by you. You are no more a protector of the Constitution than am I."

For good measure, the chairman added, "If you want to leave, good riddance."

Feingold thanked the senior Republican for the lecture and departed, explaining that, "Today's markup of the constitutional amendment concerning marriage, in a small room off the Senate floor with only a handful of people other than Senators and their staffs present, was an affront to the Constitution. I objected to its consideration in such an inappropriate setting and refused to help make a quorum. I am deeply disappointed that the Chairman of the Judiciary Committee went forward with the markup over my objection. Unfortunately, the Majority Leader has set a politically motivated schedule for floor consideration of this measure that the Chairman felt compelled to follow, even though he says he opposes the amendment."

Feingold added, "Constitutional amendments deserve the most careful and deliberate consideration of any matter that comes before the Senate. In addition to hearings and a subcommittee markup, such a measure should be considered by the Judiciary Committee in the light of day, open to the press and the public, with cameras present so that the whole country can see what is done. Open and deliberate debate on such an important matter cannot take place in a setting such as the one chosen by the Chairman of the Committee today.

"The Constitution of the United States is an historic guarantee of individual freedom. It has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without government interference in their most basic human decisions. I took an oath when I joined this body to support and defend the Constitution. I will continue to fight this mean-spirited, divisive, poorly drafted, and misguided amendment when it comes to the Senate floor."

Pelosi's Stumble

House Minority Leader Nancy Pelosi, D-California, inspired a lot of enthusiasm among progressives when she moved into a leadership position among Congressional Democrats three years ago. She was a solid liberal who had voted against authorizing President Bush to attack Iraq in 2002 and seemed to get the point that Democrats needed to become an opposition party. As minority leader, however, she's stumbled repeatedly on the issues and generally failed to function as a leader.

Pelosi is personally progressive on many issues. But she has not done much to develop a progressive image -- or message -- for Congressional Democrats. Rather, she has embraced the same caution that has undermined the party's appeal in the past two election cycles.

Pelosi was all over the place with regard to Representative John Murtha's call the development of an Iraq exit strategy. Even now, she's sort of for the Pennsylvania Democrat's proposal, but she's not moving the caucus in a coherent direction with regard to the war in particular or foreign policy in general.

And just watch Pelosi scramble away from discussions about presidential accountability because of her misread of public sentiment regarding censure and impeachment initiatives and you can tell that she is still buying into the discredited theory that Democrats will achieve meaningful power without standing for much of anything.

Sure, Bush's poll numbers are poor, and more than a few House Republicans are being fitted for prison uniforms. But if Pelosi thinks that the GOP grip on the House is going to be released without a fight, she is headed for a November result that parallels those of 2002 and 2004.

While many national Democrats continue to see something of value in Pelosi's leadership, her hometown paper, the San Francisco Bay Guardian, has lost faith.

The Guardian, one of the most progressive of the country's alternative weekly newspapers, issued it influential endorsements for California's June 6 primaries this week.

The widely-circulated paper gave warm endorsements to a number of House Democrats seeking reelection in Bay Area districts -- including Barbara Lee, Lynn Woolsey and Pete Stark, all outspoken foes of the war and cosponsors of John Conyers' bill seeking to establish a select committee to make recommendations regarding impeachment. [Nine members of the California delegation are cosponsors of the Conyers resolution, but Pelosi has gone out of her way to distance herself from the proposal.]

The minority leader did not get any support, however.

Even though Pelosi does not face a primary challenge, the Bay Guardian's editors pointedly refused to endorse the minority leader.

Here's what they wrote:

Congress, District 8

Democrat

NO ENDORSEMENT

If the Democrats retake the House, Rep. Nancy Pelosi will almost certainly become the first female Speaker, and that's something noteworthy. (And she'd be a far better Speaker than the incumbent.) Pelosi, however, has tried so hard to promote her own career that she's ignored her constituents and become too much of a moderate Democrat, late in opposing the war, weak on same-sex marriage, and obsessed with raising money. She's also responsible for privatizing the Presidio. Whatever happens this year, she needs a challenger next time around.

FBI Said to Seek Phone Records of Reporters

On an evening when every politician in the Washington was trooping in front of the television cameras to add their commentary to the slurry of blather that is the immigration "debate," and most Washington reporters were trying to figure out whether White House political czar Karl Rove will be indicted this week, little attention went to what could turn out to be the most significant story of the day.

But as journalists wake up to the fact that they have apparently become the latest targets of the Bush-Cheney administration's abusive eavesdropping, that should change.

According to ABC News, the Federal Bureau of Investigation has been quietly going after the phone records of news reporters as part of its investigations of leaks of information of government employees.

An entry posted Monday evening on The Blotter, an ABC News blog, by investigative reporters Brian Ross and Richard Esposito, reports that, "The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations. 'It used to be very hard and complicated to do this, but it no longer is in the Bush administration,' said a senior federal official."

The report by Ross and Esposito, respected journalists with solid sources in the law enforcement community, continued:

FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.

In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

"The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," the statement said.

Officials say that means that phone records of reporters will be sought if government records are not sufficient.

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

Monday evening's report from Ross and Esposito followed their revelation earlier in the day that they had been told by "a senior federal law enforcement official" that the government is monitoring phone calls they and other journalists are making in order to identify confidential sources.

Ross and Esposito wrote in their mid-day Monday entry on the ABC News blog that:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

If these reports are accurate -- and Ross and Esposito have a solid record of getting things right -- it does not require much of an imagination to determine what has transpired.

Any serious discussion will turn, for reasons hardly unreasonable considering recent revelations regarding this White House's disregard for the rule of law, to the question of whether a frustrated Bush-Cheney administration is seeking the phone records of journalists not merely to identify leakers but to thwart the sort of whistle blowing that has embarrassed the president and vice president by linking them to warrantless wiretapping, rendition of prisoners, the defense of torture, the distribution of classified information in order to punish political critics and other abuses of power.

If the administration has begun reviewing the telephone calls of reporters not to catch lawbreakers but to prevent revelations of its own lawlessness, then this White House has strayed onto dangerous political turf.

To be sure, the Bush-Cheney administration would not be the first to go after journalists in order to protect itself from challenges to its authority. President John Adams actually jailed editorial critics in the early days of the Republic, provoking the crisis that would make him the first president to be defeated for reelection. President Richard Nixon produced an "enemies list" that included the names of prominent journalists such as Daniel Schorr.

This could mark a turning point for the usually pliant Washington press corps, however.

White House reporters are by any measure a docile lot, and there is no question that the Bush-Cheney administration has benefited tremendously from the frequently stenographic reporting of even its most outlandish spin by unquestioning national correspondents -- two words: "Judith Miller." But it is difficult to imagine, especially with the approval ratings for the president and vice president dipping to depths previously explored only by Richard Nixon and Spiro Agnew in their darkest days of their diminishing power, that Washington reporters will take kindly to being spied on by an administration bent to shutting up confidential sources.

It is, of course, true that members of the White House press corps should not need a threat to their own privacy -- not to mention their most vital sources of honest information -- to be inspired to practice their craft as the founders intended. But the track record of the past several years indicates that a jolt of some kind was needed. Let's just hope that the reporters who cover Bush and Cheney will prove to be self-serving enough to now begin taking on an administration that appears to be bent on silencing the whistleblowers who are so necessary to the telling of the full story of what this White House is doing in our name but without our informed consent.

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John Nichols is the co-author, with Robert W. McChesney, of Tragedy & Farce: How the American Media Sell Wars, Spin Elections and Destroy Democracy (The New Press).

White House, NSA Block Investigation of Spying

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.

Why?

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."

Will Civilians Control the Military?

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.

Rumsfeld Uses Colin Powell as a Human Shield

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.

Mission (Really) Not Accomplished

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.

"Galbraith for President"

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."

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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.

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