It's August, a string of brilliantly blue, placid days. We might be at the beach or taking a long lunch outdoors, but instead we're glued to the TV, transfixed by the latest, sordid details regarding the alleged murder of an innocent, young girl by her creepy, older, would-be lover. Did he do it? What was she wearing when it happened? Is the wife covering-up for him? Why am I obsessed with this trash?
Welcome back August 2001. Welcome back Gary Condit. Welcome back Chandra Levy (my how blonde you've grown!). Welcome back to the halcyon days before September 11th when Maureen Dowd could say that such scandals were "the stuff of great drama and novels and journalism through the ages," a story "as legitimate as covering the patients' bill of rights or campaign finance, maybe more so, because here the press has a crucial role in forcing out the truth."
And what was that truth? What ever happened to Chandra and Gary? Who cares?! We've got their replacements in JonBenet Ramsey and John Mark Karr. They're younger, weirder and wear more make-up.
In the months after September 11th, the press excoriated itself for its "self-trivialization," its obsession with "the personal, the small, and the titillating," as the Washington Post's Robert Samuelson put it. Well, here we go again, another set of lovely bones to inspect. Thanks to CNN, we know almost everything there is to know about Karr -- from what he ate on the plane (fried king prawns and roast duck) to the details of his facial hair removal at the Siam Swan Cosmetic Clinic -- except, of course, the answer to the million dollar question. Did he do it? If TV execs get their wish, we'll be kept guessing for some time. All the better so that we can keep reading the parade of tea leaves. Just yesterday MSNBC devoted hours to "breaking footage" of a 1987 home video of Karr. "He has longer hair here...and...he seems...to be trying...to hide his face!" the model-anchor emphatically concluded as a younger, hairier Karr mildly waved off the camera.
Even the NYT got in on the act. As Talking Points Memo points out, the Times assigned 13 reporters to Friday's Jon-John coverage and just two to the NSA warrantless wiretapping case. Good old Dowd has yet to weigh in, but the Gray Lady did rush to press two long pieces on the secret lives of pedophiles by Kurt Eichenwald, who aims for a kind of detached salaciousness. The NYT might not have led with "Slayer of Beauty Queen Tot Confesses," but they were no less lurid, despite the studied patina of "investigative" intelligence, than Fox News or The New York Post.
But why do we keep watching? Don't we know there's a war (or two or three) on? As James Kincaid, author of Erotic Innocence: The Culture of Child Molesting, argues at Slate, the Ramsey case offers "forbidden material served up to us in ways we can both enjoy and disown." "Somebody else finds the bodies of children irresistible and we want the chance to rail against these monsters, meanwhile relishing the details of the very bodies we claim indifference to," he writes. In this sense, it makes no difference that the press will inevitably issue another round of self-flagellation for its "self-trivializing" JonBenet coverage. That's all part of the game.
And did he do it? Your guess is as good as mine. What is known is that Karr was fascinated with the notoriety of pedophilia. He wrote about Michael Jackson and Richard Allen Davis, the murder of 12-year-old Polly Klaas; he moved to the same town where Klaas grew up. For the past 10 years, he tracked minute developments in the Ramsey case. It's not hard to imagine then that Karr's confession (and possibly his crime) stem from the same, mass-media fueled obsession with violated innocence that so apparently enthralls us all.
One year. It's been one year since Hurricane Katrina hit the Gulf Coast. One year since the levees broke and the city of New Orleans drowned. One year since the poor people of New Orleans stood on their roof tops with signs that screamed "Help Us," but help didn't come until, in too many cases, it was too late.
First year anniversaries are meant to commemorate the dead and ease the grief of the living. If Hurricane Katrina had only been the worst natural disaster in American history, we could do that. But it was also one of the worst failures of political leadership--before, during, and after--in American history. And so the politicians involved have spent the past year spreading the blame around to avoid answering the question crucial for any type of healing: Why did it happen?
In HBO's magisterial When the Levees Broke, Spike Lee performs a levelheaded autopsy of the disaster. And his answer is that the political leaders did not care enough to respond quickly enough to avoid the tragedy. Governor Blanco cared more about the appearance of being in control than she did about the situation in New Orleans. And President Bush cared more about fundraisers and the concept of state rights than he did about the situation in New Orleans to preempt the Governor and send in the military before the food, water, and medical supplies ran out.
As if to underline this point, Bush used this time of mourning for New Orleans to make an impassioned appeal to continue aid for a place he cared about enough to preemptively invade: Iraq. Does the President of the United States care more about the people over there than he does the people here?
George W. Bush keeps trying to rally popular support for his war in Iraq. But he has little to offer other than stay-the course-ism. He cannot point to progress in Iraq. Nor can he point to a plan that would seem promising. Thus, he is left only with rhetoric--the same rhetoric.
That was on display during a presidential press conference at the White House on Monday. Here's a selective run-down.
One reporter asked,
More than 3,500 Iraqis were killed last month, the highest civilian monthly toll since the war began. Are you disappointed with the lack of progress by Iraq's unity government in bringing together the sectarian and ethnic groups?
No, I am aware that extremists and terrorists are doing everything they can to prevent Iraq's democracy from growing stronger. That's what I'm aware of.
He could not bring himself to say he is disappointed by the government's inability to curb the sectarian violence? That was an odd way to defend his actions in Iraq. Bush did go on to say,
And, therefore, we have a plan to help them--"them," the Iraqis--achieve their objectives. Part of the plan is political; that is the help the Maliki government work on reconciliation and to work on rehabilitating the community. The other part is, of course, security. And I have given our commanders all the flexibility they need to adjust tactics to be able to help the Iraqi government defeat those who want to thwart the ambitions of the people. And that includes a very robust security plan for Baghdad.
A question: when would it be fair to judge the plan's success? The plan has supposedly already been implemented. Yet the death count is rising in Iraq. A sharp-eyed (or sharp-eared) reporter should have asked, "If the death count goes up next month, will that mean the plan is a failure? And how should Americans (and Iraqis) evaluate whether the plan is working?" Or as Donald Rumsfeld might say, what are the operative metrics?
Bush repeatedly said that it would be disastrous for the United States to disengage from Iraq. He claimed,
It will embolden those who are trying to thwart the ambitions of reformers. In this case, it would give the terrorists and extremists an additional tool besides safe haven, and that is revenues from oil sales.
Regarding the "reformers"--and Bush noted this included reformers throughout the region--the US invasion of Iraq and the recent (and partially still ongoing war between Israel and Hezbollah) has undercut the reformers of the Middle East, or so say many such reformers. These reformers report they are on thinner ice because of US policies. Bush's actions, according to the grunts of Middle East reform, have not emboldened them. As for turning Iraq into a safe haven for terrorists and extremists, Bush has already accomplished that. An American journalist who had recently returned from Baghdad told me a few weeks ago that neighborhoods within a mile or so of the Green Zone in Baghdad are totally under the control of insurgents. Whole swaths of Iraq are beyond the authority of the Iraqi government. These areas can be safe havens for all sorts of miscreants. And it's fear-mongering to suggest that if the United States were to withdraw that anti-American jihadists will control the state and be enriched by oil revenues. Last time I checked, the Sunnis, Shiites and Kurds all had an interest in Iraq. These groups are unlikely to turn the nation over to the few jihadist terrorists operating within Iraq.
One exchange did not inspire confidence. A reporter asked,
Mr. President, I'd like to go back to Iraq. You've continually cited the elections, the new government, its progress in Iraq, and yet the violence has gotten worse in certain areas. You've had to go to Baghdad again. Is it not time for a new strategy? And if not, why not?
You've covered the Pentagon, you know that the Pentagon is constantly adjusting tactics because they have the flexibility from the White House to do so.
The reporter--who was not asking about tactics--interrupted:
I'm talking about strategy.
Bush then said:
The strategy is to help the Iraqi people achieve their objectives and their dreams, which is a democratic society. That's the strategy.
Actually, that's not a strategy. That's a goal. A commander in chief should know the difference. A strategy is how one goes about--in a general way--accomplishing goals. Tactics are how one implements the strategy. After Bush talked about giving military commanders in Iraq the "flexibility" to "change tactics on the ground," this interesting back-and-forth occurred:
Sir, that's not really the question. The strategy --
THE PRESIDENT: Sounded like the question to me.
Q: You keep -- you keep saying that you don't want to leave. But is your strategy to win working? Even if you don't want to leave? You've gone into Baghdad before, these things have happened before.
THE PRESIDENT: If I didn't think it would work, I would change -- our commanders would recommend changing the strategy. They believe it will work.
Seems as if Bush was saying that his commanders are in charge of the strategy. But isn't that his job?
Later on came this exchange:
Q: But are you frustrated, sir?
THE PRESIDENT: Frustrated? Sometimes I'm frustrated. Rarely surprised. Sometimes I'm happy. This is -- but war is not a time of joy. These aren't joyous times. These are challenging times, and they're difficult times, and they're straining the psyche of our country.
To recap: he is not "disappointed" (see above), but he is occasionally "frustrated." Yet hardly "surprised." Wait a moment. Does that mean he invaded Iraq realizing that the war there would turn into an ugly sectarian conflict that would bog down US troops for over three years? If so, why didn't he say something before the invasion about this? Or, better yet, why didn't he and the Pentagon prepare for such an eventuality? Citizens should hope he was damn surprised by what has happened in Iraq--even though that would not make him any less culpable.
Bush repeatedly acknowledged there is a legitimate debate whether the United States should disengage from Iraq. He noted,
I will never question the patriotism of somebody who disagrees with me.
This statement is--how should we put it?--not as accurate as it could be. Campaigning for congressional Republicans in 2002 Bush said that Senate Democrats were "more interested in special interests in Washington and not interested in the security of the American people." That certainly is not how one would describe a patriot. More recently, Bush's own Republican Party accused the Democrats of plotting to weaken the country. After a federal judge ruled that Bush's warrantless wiretapping program was unconstitutional, the GOP sent out an email headlined, "Liberal Judge Backs Dem Agenda To Weaken National Security." Accusing someone of having a gameplan to "weaken national security" is indeed questioning their patriotism. Has Bush decried this Republican National Committee tactic? Not in public.
The press conference allowed for a brief exploration of Bush's rationale for invading Iraq. One journalist inquired,
A lot of the consequences you mentioned for pulling out [such as chaos in Iraq, terrorist running amok, etc.] seem like maybe they never would have been there if we hadn't gone in. How do you square all of that?
Bush fired back:
I square it because, imagine a world in which you had Saddam Hussein who had the capacity to make a weapon of mass destruction, who was paying suiciders to kill innocent life, who would -- who had relations with Zarqawi. Imagine what the world would be like with him in power. The idea is to try to help change the Middle East.
Well, as both Charles Duelfer and David Kay--administration-appointed WMD hunters--reported, Saddam did not have any serious capacity to produce WMDs. None. He had no weapons and no serious production capability. So, yes, one would have to "imagine" such a threat. As for Saddam's relations with Abu Musab al-Zarqawi (now deceased), there is no evidence that Saddam had anything to do with him before the war. As Colin Powell noted in his disastrous UN speech, Zarqawi at the time was operating out of northern Iraq, which was territory not under Baghdad's control. Once more, a healthy dose of imagination is required to follow Bush's argument.
The president continued:
You know, I've heard this theory about everything was just fine until we arrived, and kind of "we're going to stir up the hornet's nest" theory. It just doesn't hold water, as far as I'm concerned. The terrorists attacked us and killed 3,000 of our citizens before we started the freedom agenda in the Middle East.
That led to this point-counterpoint:
Q: What did Iraq have to do with that?
THE PRESIDENT: What did Iraq have to do with what?
Q: The attack on the World Trade Center?
THE PRESIDENT: Nothing, except for it's part of -- and nobody has ever suggested in this administration that Saddam Hussein ordered the attack. Iraq was a -- the lesson of September the 11th is, take threats before they fully materialize....Nobody has ever suggested that the attacks of September the 11th were ordered by Iraq.
Not exactly. Dick Cheney and other hawks in the administration repeatedly said that there was a connection between Iraq and 9/11, citing an unconfirmed, single-source intelligence report that 9/11 ringleader Mohamad Atta met with an Iraqi intelligence official in Prague five months before the attack. Yet the FBI and the CIA (and later the 9/11 Commission) had concluded that there was no evidence to substantiate this report and that the meeting likely did not happen. True, Bush officials did not claim that Saddam had "ordered" the attack, but they did suggest that Baghdad had participated in the attack--even when there was no evidence to support that assertion.
So over three years after Bush ordered US troops into Iraq, he is still claiming that Saddam was something of a WMD threat and he is refusing to acknowledge that his administration did attempt to link Saddam to the 9/11 attack--all while professing he has a strategy (or is it a set of tactics?) to win in Iraq. This is not the sort of stuff that will hearten a nation. Bush remains lost in Iraq, with the rest of the country (and the world) held hostage by the mistakes and miscalculations he will not concede.
The latest Time magazine poll has Al Gore at 41%, right behind Hillary Clinton at 46 percent. (The poll also shows that Clinton remains a polarizing figure--surprise!--among Republicans and a good number of Independents.)
Al Gore has warmed up, (see our cover story last June) and is speaking inconvenient truths to stir a nation to take meaningful action about the global climate crisis.
And in these last years, Gore finally found an authentic voice--one that seemed to elude him for much of his political career. His early and powerful denunciations of the Bush Administration's war planningand its deceptions, its manipulation of fear, its abuse of power, civil liberties and our constitutional design seem to shift the debate and embolden others to speak out.
But, the question remains--will Gore make a run for the presidency in '08? With each passing day, it seems less likely he will. But these latest poll numbers--and, yes, any polling this early has to be viewed skeptically--may just lead Al Gore to make the move.
I'd just finished reading a wonderful book, In Search of WillieMorris, when I got a note from Rahm Emanuel. Nothingpersonal. It was a (mass) e-mail asking me to join him in wishingPresident Bill Clinton a happy 60th birthday. (The Clinton Foundationhad organized an online birthday card.)
I sometimes wonder if Clinton knows what Karl Marx said of theeconomist David Ricardo. Bear with me--because this applies toClinton and his legacy. Ricardo, Marx is reported to have said,towers because of the barrenness of the landscape around him. Today,after six years of George W. Bush, Clinton's Presidency--with all ofits faults and squandered opportunities--sometimes seems totower because of the barrenness of our political landscape.
But back to what I'd just finished reading when I got Rahm Emanuel'snote.
In Search of Willie Morris is the biography of anotherSoutherner. Morris was a famously talented--and complex--writer andeditor who helped to remake American journalism. He wrote more thana dozen books, including the classic memoirs My Dog Skip andNorth Toward Home. His years at Harper's --he was madeeditor at age 32--were legendary. He was a friend, mentor, colleague,to a remarkable group of writers--William Styron, Norman Mailer,Truman Capote, Gay Talese, James Jones and, later in life, BarryHannah, Donna Tartt, Winston Groom and John Grisham, who wrote that"Wlllie Morris was a simple soul with enough conflicts andcomplexities to drive mad those who loved him."
When Morris died in 1999, Clinton sent a eulogy. It was read at theservice, which was held in the same Methodist Church in Yazoo Citywhich Morris attended as a kid.
Whatever one thinks of Clinton's Presidency, the former President'swords reveals a human being who shared with Morris what Grishamdescribed: a person "with enough conflicts and complexities to drivemad those who loved him."
Here's what Clinton sent to be read in Yazoo City, that summer of 1999:
"It was early in 1968 when I met Willie Morris in New York. Morriswas editor of Harper's and had been a Rhodes Scholar. I wroteto him shortly after I got my Rhodes,and to my surprise, he agreed tosee me. He was wonderfully wry and funny--the classic Southerner. Hewrote a great book about his dog. He wrote a fascinating book aboutthe role of football in the South and the racial barriers, TheCourting of Marcus Dupree. You know, most Southerners thoughtthey'd be looked down upon if they went up the Northeast. Thecultural elites would all think they were hayseeds--although that waskind of phony; The New York Times was largely run bySoutherners--but there was always this sensitivity about how youwould be seen. Willie gave us another way of thinking about the South.
You know, for most of my generation of Southerners who went north,the book that stuck in their minds was [Thomas Wolfe's] You Can'tGo Home Again. Willie's North Toward Home was abeautifully written, evocative portrait of one person's love for theSouth who had profound regret over the racial situation. It helped alot of people like me who wanted to see the world but also come homeand live in the South. He showed us how we could love a place andwant to change it at the same time. It really was an important thinghe did for me. He showed us we could go home."
The question of party identity takes on weird new relevance now thatJoe Lieberman is cross-dressing in Connecticut. Defeated once as aDemocrat, tiresome Joe is now running again as an independent. Only hesays he's still a loyal Dem at heart. How can we know he's not lying?
Karl Rove and the Republicans appear to think otherwise. They arepouring serious money into Lieberman's campaign and dumping a classicRepublican smear job on Ned Lamont, the legit Democrat. Ned, remember,beat Joe fair and square in the party primary.
But Joe agrees with Karl that Ned is a threat to the Republic becauseLamont thinks Bush's war in Iraq is a bloody catastrophe--as do nearlytwo-thirds of the American public.
Something about this odd drama doesn't pass the smell test. I suspectKarl and Joe have made a deal. A back-scratching understanding, youmight say.
Karl says to Senator Joe: We will help you beat Ned in the generalelection and you will agree to cross over and sign up with theRepublicans--if we need your vote to retain our majority in the Senate.
Joe says: It's a deal--but only if my fellow Democrats make a sincereeffort to support Ned and defeat me. Otherwise, if the Dems go limp andsell out Ned, I have to stay loyal.
Karl: Fair enough. How do we make the terms of the deal clear toeveryone without announcing it?
Joe: You very publically dump the no-name Republican candidate in the race. I startattacking the patriotism of anti-war Democrats like Bernie Sanders,who's running for senator in Vermont. We both cut up Ned Lamont withthe same vicious slurs--portraying him as a fellow traveler for alQaeda.
Karl: Excellent. I have a hit group called Vets for Freedom, who willstart tossing the mud.
Joe: My Democratic pals will understand completely. This is the kind ofbipartisan civility I've always sought in politics.
Okay, I cannot prove any of the above. But it is at least clear thatthe devious and undependable Lieberman has devised a very nasty dilemmafor his erstwhile friends in the Democratic minority. Most of them havedeclared their support for the party nominee, Ned Lamont, and at leastsome of them seem sincere. That demonstrates the party establishment'srespect for the new energies that Lamont's anti-war supporters arebringing to the party.
But Joe's flagrant turncoat routine effectively warns the partyregulars to back off--or else.
His suggested logic goes like this: the Dems will win the Connecticutsenate seat by doing nothing from the national level, since it's eithergoing to be Lamont or Lieberman. But if the party establishmentprovokes Joe by putting real heft behind Lamont's campaign, then itrisks losing the seat. If Joe wins with the heavy support provided byBush and Republicans, he may feel compelled to walk out.
Some Democrats--I hear this second-hand--are flirting with this "golimp" strategy. Others are arguing intensely that the party has nooption except to put all of its weight behind the party nominee and, ineffect, make damn sure Ned wins. Above all, they have to demonstratetheir commitment to Lamont followers, those new rank-and-file forceswho harbor deep skepticism about the party's timid leadership.
If Democrats fail to demonstrate their genuineness, they may very wellcreate a much more serious problem for the party down the road. ALieberman victory, regardless of how it occurs, would encourage therebels and insurgents from within the party to skip party primaries asbogus events and run their challenge candidates in the generalelections--just like wayward Joe.
These rebel challengers might not win, but they could rally enoughdissenting voters to bring down a lot of incumbent Dems. Joe tossedparty identity out the window; why shouldn't they?
This would be a far bloodier path to reinvigorating the Democraticparty--bringing it down in order to rebuild it--but some reformagitators have noticed that it works. Fratricidal bloodletting was howthe Republican Right got its groove and gained its power over the otherparty.
The war in Iraq has lasted three days longer than US involvement in World War II.
Germany declared war on the US on December, 11, 1941, four days after Pearl Harbor. The US announced victory in Europe on May 8, 1945. That's one thousand, two hundred and forty-four days.
We've been in Iraq one thousand, two hundred and forty-seven days---and still the Administration has no exit strategy, no plan for victory and no clue what it is doing. In case you'd forgotten, George W. Bush declared "Mission Accomplished" aboard an aircraft carrier over three years ago.
"In the battle of Iraq," Bush said, "The United States and our allies have prevailed."
Perhaps that pronouncement was a little premature. Twelve hundred and four days later, our troops are still paying the price.
Almost a year ago, NationBooks published The Dictionary of Republicanisms, a book that set out to deconstruct Republicans' Orwellian attempts to manipulate the language for their political purposes. It contained hundreds of definitions submitted by readers of the nation.com, like death tax, faith-based, and leave no child behind.
But what difference does a year make?
We've seen George W. Bush's poll numbers plummet as the disasters continue to unfold in New Orleans, Iraq, and Afghanistan. We've seen the Abramoff corruption scandal engulf House Republicans, leading to early retirements for Duke Cunningham, Robert Ney, and Tom DeLay. We've seen a parade of books detailing the staggering incompetence of Republican policies--many of them written by Republicans! And yet, they are still at it.
As Hendrik Hertzberg recently pointed out, George W. Bush continues to insult the Democratic Party by calling it the "Democrat" Party, something Joe McCarthy liked to do. Ken Mehlman just went on Meet the Press to tell us the new Republican political slogan for the war in Iraq is no longer "stay the course" but rather "adapting to win." He still wants to categorize the Democratic position as "cut and run." It must have tested well. Perhaps Republican pollster Frank Luntz will tell us in his soon-to-be published book, Words That Work. I'm still waiting for an explanation of "Islamofascism."
Clearly the fight over language continues. Here at the Nation we are working on an update to The Dictionary of Republicanisms. And we are accepting submissions. Click here if you want to send us one. If we receive enough, we will publish them in an expanded edition of the book--or a long article.
To help get you started here are some new terms that need definitions:
Adapting to win
The al Qaeda candidate
Birth pangs of a new Middle East
In ruling on Thursday that the Bush administration's warrantless surveillance program is unconstitutional and must be halted, U.S. district Judge Anna Diggs Taylor slammed the White House on several critical fronts.
For months, George W. Bush, Dick Cheney and other administration aides have been defending--even championing--what they call the "terrorist surveillance program," under which the National Security Agency can intercept communications that involve an American citizen or resident without a warrant if one party to the communication is overseas and suspected of being linked to anti-American terrorists). They have maintained that the president has the authority as commander in chief to authorize such surveillance. Though the Foreign Intelligence Surveillance Act (FISA) generally forbids wiretapping without warrants, the White House has contended that Bush is not bound by the limitations of that law. This claim--arising from the Bush administration's view of expansive (even supreme) presidential power--set up a constitutional clash. And in the first round of the legal battle, Judge Taylor has knocked out the White House argument.
In her decision, she accused the administration of dishonestly arguing that the lawsuit filed by the ACLU and others (including journalists, researchers and lawyers) against the NSA wiretapping should be dismissed because it would expose state secrets:
It is undisputed that Defendants have publicly admitted to the following: (1) the TSP [Terrorist Surveillance Program] exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF [legislation authorizing Bush to use military force against Iraq] and the Constitution to authorize the continued use of the TSP. Defendants [the Bush administration] have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP....Consequently, the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.
In other words, Bush cannot hide behind an it's-classified defense. (Taylor did say that the administration could do so in a related matter--the data-mining of phone records by the NSA. That's because not enough information has been publicly released about this covert program.)
The judge reserved her sharpest words for slicing and dicing the administration's contention that Bush had the authority to ignore FISA and, in essence, act outside (or above) that law. And she cited a favorite Supreme Court case of conservatives to make this point: Clinton v. Jones. In that case, the justices ruled that Clinton could be sued for sexual harassment by Paula Jones. Taylor wrote:
It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d]...into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers....When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Though pundits, partisans and legislators have debated the legality of the warrantless wiretapping program, Taylor rendered a clear verdict:
The wiretapping program here in litigation...has undisputedly been implemented without regard to FISA and...in violation of the Fourth Amendment.
Bush, as president, she added, has no extraconstitutional powers:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well....In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of theCongress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.
Once again, a court has told Bush that he is not all-powerful. He cannot create military tribunals on his own. He cannot detain American citizens as enemy combatants without affording them some elements of due process. Taylor's decision will probably be appealed by the Bush administration, and the case will wind its way toward the Supreme Court. But this decision reaffirms--and puts into practice--the bedrock principle that a president's power does not trump the workings of a republican government, even when it comes to war. Weeks before he took office in 2001, Bush quipped, "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." Democracy, though, is not easy. And a commander in chief has to abide by the rules, as various courts have now ruled. The administration's King George approach to governance has taken another blow. But it's royally unlikely this president is going to accept the decision and give up his claim to the throne.
When Russ Feingold first argued that the Bush administration's warrantless wiretapping program was in clear violation of federal law and the spirit of the Constitution, and that the Senate must censure the president for his wrongdoing, the maverick senator was condemned by the White House, ridiculed by Republicans and given the cold shoulder by most Democrats.
But, now, the Wisconsin Democrat who in March proposed that the Senate censure Bush for flagrantly disregarding the law has a federal judge on his side. And the question becomes: When will Democratic and Republican members of the Senate join Feingold in demanding that the administration be held to account for its assaults on basic liberties and the rule of law?
Ruling on a lawsuit filed by the American Civil Liberties Union on behalf of journalists, scholars and lawyers who expressed concern that the National Security Agency's spying initiative had made it difficult for them to develop and maintain legitimate international contacts and professional relationships, U.S. District Judge Anna Diggs Taylor in Detroit determined Thuesday that the warrantless wiretapping scheme is unconstitutional and ordered its immediate halt.
Holding that the spying program that was authorized and defended by President Bush violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution, Taylor wrote in a 43-page opinion that: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."
The decision by Judge Taylor offers vindication for Feingold, the ranking Democrat on the Senate Judiciary Committee's subcommittee on the Constitution, who has argued since the NSA wiretapping was exposed last year that the president had dramatically overstepped his powers in authorizing the program.
"Today's district court ruling is a strong rebuke of this administration's illegal wiretapping program," Feingold said on Thursday. "The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA's warrantless wiretapping program. Today's federal court decision is an important step toward checking the President's power grab."
The key words in that statement are "an important step." The ruling by Judge Taylor, while significant, does not mark the end of this fight.
This administration will continue to battle judicial efforts to require the president to follow the law.
Ultimately, the job of demanding accountability will fall to the Senate.
At this point, Feingold has only a handful of Senate allies. Iowa Democrat Tom Harkin and California Democrat Barbara Boxer have been with the Wisconsinite since he proposed censure in March. In May, Massachusetts Democrat John Kerry signed on. But most Democrats, including New York Senator Hillary Clinton and Senate Minority Leader Harry Reid, have refused to embrace the proposal.
With the courts stepping in, the time for Democrats and responsible Republicans to step up is now. A failure by senators to respect their duty to check and balance a lawless president makes those disengaged legislators as much a part of the problem as an abusive executive.