No Comment — February 13, 2008, 8:13 am

Treating the Constitution as a Doormat

The Framers designed a system of government in which the powers of the state are carefully apportioned among three branches, with the ultimate objective of keeping the eternal quest of individuals for the aggrandizement of their power in check and to insure a maximum amount of freedom for the individual. For most of the last century, those who have thought carefully and deeply about the plight of human freedom in the future have been concerned about the threat posed by technological advances. On one hand, these advances promise the people more leisure and provide opportunities for education and the enhancement of the quality of life. But then there is the dark specter of the use of these same tools to intrude into every corner of our lives, to enslave and imprison the people in their own homes, by the creation of a national surveillance state of the sort that George Orwell powerfully conjured in Nineteen Eighty-Four. Of course, as Orwell and others told us, all of this will be presented as the beneign or even benevolent deed of a state intent on insuring our own security. That’s always the excuse offered.

If things proceed on the course now set by the Bush Administration and its shortsighted collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach. It hardly got a mention in the media, obsessed as it was with reports on the primary elections, the use of drugs in sporting events, and that unfailing topic, the weather. Yesterday the Senate voted down the resolution offered by Senator Dodd to block retroactive immunity for the telecoms and it voted for a measure which guts the Constitution’s ban on warrantless searches by extending blanket authority to the Executive to snoop on the nation’s citizens in a wide variety of circumstances, subject to no independent checks. On the key vote, the Republicans in the Senate continued to function in lock-step, as they have on almost all significant issues for the last seven years, while the Democrats fragmented. Their vote summed up everything that’s wrong with Washington politics today. Fear and hard campaign cash rule the roost, and the Constitution is regarded as a meaningless scrap of parchment, indeed, a nuisance.

The issue in focus was a retroactive grant of immunity to telecommunications giants which violated the rights of millions of Americans by facilitating warrantless surveillance by the Bush Administration. With the exception of Qwest, they were knowingly complicit in criminal acts. And in a touch worthy of a totalitarian state, Qwest quickly found its CEO under criminal investigation and prosecuted. In fact the White House’s own arguments smack of the mentality of totalitarianism. Here’s the leading argument that the White House offers up in favor of the legislation:

“Companies should not be held responsible for verifying the government’s determination that requested assistance was necessary and lawful — and such an impossible requirement would hurt our ability to keep the Nation safe.”

But as Dan Froomkin notes at the Washington Post, “Isn’t that the very definition of a police state: that companies should do whatever the government asks, even if they know it’s illegal?” Indeed it is.

A while back when reading an editorial in the Post advocating immunity for the telecoms, an advertising pop up for a telecom kept inserting itself over the text. It was, I thought, a reminder from heaven of the real interests and how they assert themselves. The Constitution was defeated yesterday, and it was defeated by a fateful coalition between brain-numbing fear tactics and money and the resources that money buys. For instance, by Jamie Gorelick and William Barr, two attorneys with notable careers in public service who now argue that the Constitution’s prohibition on warrantless searches is just “impractical”–as they earn a handsome keep from the telecoms and are trotted out to Congress as a bipartisan manifestation of judicious reason.

We should take careful stock of the Democrats who voted against the Dodd Amendment, and—in my mind—cast a vote to dismantle the Constitution: Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln. Hillary Clinton, who promised her opposition, couldn’t be bothered to cast a vote. She was the sole absent senator. In the minds of many of the party faithful, she forfeited her right to party leadership by her unexplained absence on a vote of exceptional importance.

Glenn Greenwald offers a good summary of the twisted path this issue has taken and of the startling failure of leadership on the part of Democrats and sensible Republicans, like Arlen Specter and Chuck Hagel, who knew better:

It’s worth taking a step back and recalling that all of this is the result of the December, 2005 story by the New York Times which first reported that the Bush administration was illegally spying on Americans for many years without warrants of any kind. All sorts of “controversy” erupted from that story. Democrats everywhere expressed dramatic, unbridled outrage, vowing that this would not stand. James Risen and Eric Lichtblau were awarded Pulitzer Prizes for exposing this serious lawbreaking. All sorts of Committees were formed, papers written, speeches given, conferences convened, and editorials published to denounce this extreme abuse of presidential power. This was illegality and corruption at the highest level of government, on the grandest scale, and of the most transparent strain.

What was the outcome of all of that Sturm und Drang? What were the consequences for the President for having broken the law so deliberately and transparently? Absolutely nothing. To the contrary, the Senate is about to enact a bill which has two simple purposes: (1) to render retroactively legal the President’s illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and (2) to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms. In other words, the only steps taken by our political class upon exposure by the NYT of this profound lawbreaking is to endorse it all and then suppress any and all efforts to investigate it and subject it to the rule of law.

To be sure, achieving this took some time. When Bill Frist was running the Senate and Pat Roberts was in charge of the Intelligence Committee, Bush and Cheney couldn’t get this done (the same FISA and amnesty bill that the Senate will pass today stalled in the 2006 Senate). They had to wait until the Senate belonged (nominally) to Harry Reid and, more importantly, Jay Rockefeller was installed as Committee Chairman, and then — and only then — were they able to push the Senate to bequeath to them and their lawbreaking allies full-scale protection from investigation and immunity from the consequences of their lawbreaking.

That’s really the most extraordinary aspect of all of this, if one really thinks about it — it isn’t merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and [most] brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps — extraordinary steps — to protect Bush officials. While still knowing virtually nothing about what they did, they are acting to legalize Bush’s illegal spying programs and put an end to all pending investigations and efforts to uncover what happened.

And here is the final appeal of Senator Chris Dodd. He and Russ Feingold are the two members of the senate who have managed a stance of heroic leadership on this issue. They deserve continuing encouragement and support.

This struggle is not over, because the House has passed far better legislation than the Senate. It is now essential that in conference, the Senate version recede and the House version prevail. So here’s the next step, sign this petition urging the House to stand firm behind its version, and reject the Senate’s attempts to use the Constitution as a doormat. And write or call your representative to reinforce the message. No more compromises on the Constitution!

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