Re: Epilogue To 2004-2005. Prologue To 2006

December 23, 2005

Re: Epilogue To 2004-2005. Prologue To 2006.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Knowing I would be on vacation during the last two weeks of December, and for other reasons too, I intended the posting of December 13, 2005 to be the last blog of 2005. I even opened that blog by saying it would be the last posting of the year. But revelations of the past few days, especially in connection with electronic surveillance, are simply too delicious to pass up. For they are helping to bring to a head some points that have repeatedly been made here since this blog began in May 2004.

It is grossly immodest to point out some of this, as shall be done below. And in a sense it contradicts the de facto norm desired and accepted by most media pundits: the norm that one should not remember or bring up what pundits said or prophesied in the past. Of course, this de facto norm is to the media pundits’ benefit because they are so commonly wrong. As is the fate of many money managers or even lots of corporate executives, but not of pundits, most of the latter would be looking for new jobs if continuation in their old jobs depended on their stated views and predictions turning out to be right a significant amount of time. Conversely, one must concede, bringing up past views may be to this writer’s benefit if he is right in believing (is he?) that much of what he has been saying since May of 2004 has been borne out, even increasingly so near the end of 2005 because of the recent revelations regarding domestic spying and some other matters.

Casey Stengel used to say, "You could look it up." Well, in prior blogs you could look up that the following points have been made here, sometimes repeatedly. (The relevant blogs, among others, will be published in early 2006 as part of a collection entitled Blogs From The Liberal Standpoint: 2004-2005, a collection arranged by topics, and chronologically within topics, so that a reader can get a sense of the movement in the country over the period from mid 2004 to the end of 2005.):

• What is at stake in the so-called war on terror is no longer just treatment
of detainees, but the freedom of Americans.

• Bush and company have very wrongly used the commander-in-chief power
as a lever to make the President far, far too powerful, powerful far beyond
anything intended by the framers, who created a government in which the
legislature was to be the more powerful branch.

• John Yoo has despicably abetted this process by writing
intellectually corrupt legal opinions, which were to be used to shield officials
high and low against the possibility of criminal prosecutions even though their
acts plainly are criminal. The legal opinions, moreover, were classified, were
all kept secret, in major part because Congress and the public would never stand
for what is being done if they were to learn about it by reading the
opinions.

• Congress has been ineffective and cowardly.

• Bush (and Cheney too) is a very unintelligent person.

• Bush has committed the impeachable felony of conspiracy to commit
torture, but the media and the politicians refuse to discuss this. He should,
however, be impeached for this felony.

• The New York Times apparently has withheld information about various
important subjects, and one wonders what those subjects might be.

• Samuel Alito should be asked very specific, pointed questions about
the extent of Presidential power.

• In accordance with first amendment values, there should be a
reporter’s privilege when confidential sources talk to a reporter in order to
alert her to evildoing by government, but not when confidential sources try to
use reporters to further evildoing by government.

Well, it’s funny (not funny ha ha) how these and some other points previously made here are all involved in the recent revelations about warrantless electronic surveillance by the NSA. And, in a very real way, most of the points can be summed up by, or brought under the umbrella of, a single saying: Ich bin der Staat, or L’Etat, c’est moi. I am the state, in English.

You see, Bush’s claims of power all come down to a single overarching principle, articulated for him in legal terms by John Yoo, and articulated in political speech by Bush himself. That overarching principle is that the President is all powerful whenever he asserts a claim that what he authorizes or does is for the purpose of fighting a war. John Yoo said that such all-surpassing power comes from the commander-in-chief clause and cannot be limited by Congress. Of course, Yoo shamelessly distorts the commander-in-chief power, which was intended simply to put a civilian in charge of the military lest a general seek to take over the country and become dictator, and was not intended to make the President a dictator, was not intended to give him the dictatorial power that the framers were guarding against in a general. Never has this been put more eloquently than in a passage in a concurring opinion written in the Korean War’s Steel Seizure Case by that most eloquent of all Supreme Court Justices, Robert Jackson, a passage recently recalled to mind, I am grateful to say, by an e-mail from "Rex": "His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role."

Bush, of course, doesn’t write, and most likely doesn’t even read, legal opinions, whether from Supreme Court Justices or Department of Justice lawyers. (Opinions are more than one page long.) Bush merely says, echoing Yoo, that because he is commander-in-chief he can do whatever he claims is necessary to protect Americans. He also says that Congress’ authorization of the use of force allows him to engage in warrantless electronic surveillance. That legislators say they never even thought about warrantless electronic eavesdropping when considering an authorization of force (they were, after all, focused on military action, not surveillance), that people who apparently have read the Congressional history find no mention of surveillance, that there is a specific law against what he is doing, is all of no never mind to Bush. Ich bin der Staat, after all. Gonzalez, in Bush’s defense, says that a few Justices of the Supreme Court -- not all -- said in the Guantanamo case that the authorization of force means we can imprison enemy fighters. Therefore concludes Gonzalez, the authorization also means we can wiretap citizens without a warrant. It does not seem to occur to this mental giant of an Attorney General that in every war one takes and holds prisoners, so that an authorization of force must mean you can do this. But why the authority to take enemy prisoners -- an incident of every war -- means you can also wiretap American citizens without a warrant, and why it means this even in the face of a contrary statute, simply escapes one who is not a hack henchman for Bush. On the other hand, L’Etat, c’est moi, so what a statute of Congress says is irrelevant.

One should understand, of course, that the statements of people like Bush, Gonzalez and Cheney, and the so-called legal opinions of John Yoo, are not to be taken seriously from the intellectual standpoint. For intellectually they are not really serious claims; one wonders if they are even seriously meant, since they are too stupid, too frivolous, to be intellectually serious. The true, underlying intended function of these claims, and particularly of the legal memos, is really something quite different than to be a serious statement of a position. The intended function is to provide a shield for Bush and company, down to the lowest CIA operative, NSA operative, or grunt, if someone were ever to think about putting them in the criminal dock for what they have done. The possible defendant, be he Bush on down to a grunt, could point to the legal opinions of John Yoo (and his one time boss, now Federal judge Jay Bybee) and say, "I cannot be fairly accused of a crime. There were legal opinions from high Department of Justice officials -- opinions on torture, on surveillance [and possibly on God knows what else that we don’t even know about yet] that said what I was doing was legal." It was, indeed, CIA personnel’s desire for protection -- dare one say cover -- that led to the torture opinions. Gonzalez recently pointed out that Bush had documents from lawyers all over Washington (as I believe Gonzalez put the matter) saying that what Bush was doing was lawful. Some NSA guys were very worried about the legality of the warrantless surveillance. Some of the NSA people were -- and still are -- so worried about its legality that they apparently wouldn’t participate in it and/or blew the whistle to The New York Times despite John Yoo’s classified memos claiming legality.

So the claims, and Yoo’s memos, should not be understood to be serious intellectual statements of positions. They are only shields so that Bush could do whatever he wants without being subjected to appropriate criminal sanctions, and so that his minions could obey him in hoped-for safety. The claims, and particularly the memos, are merely a cover, a smokescreen, for the underlying, fundamental principle of Ich bin der Staat, L’Etat, c’est moi, I am the state. And they are a cover, a smoke screen, which are kept classified and secret for as long as the government can get away with this, because of justified fear that Congress and the public would never stand for what is being done if they were to get wind of it from reading the memos.

Once the story about the warrantless surveillance broke, Bush, Gonzalez & Co. came up with some other claims that in effect hold that the 1978 Foreign Intelligence Surveillance Act, which banned warrantless electronic surveillance, must be considered – in Ron Zeigler’s deathless word -- inoperative. There has been, it is said, a lot of technology changes since 1978. And a two minute phone call between terrorists can lead to hundreds or thousands of deaths.

Forgive my French, but what the hell have these points got to do with it, if you think about it? FISA allows the government to engage in immediate warrantless electronic surveillance as long as it thereafter seeks a warrant within 72 hours. All the new technology and two minute phone calls in the world can’t be quick enough to escape electronic surveillance once the latter has been applied immediately, without a warrant, with the only requirement being that the government then seek a warrant within 72 hours after starting the surveillance. The claims about the need for speed are just so much smoke. One cannot, after all, be more immediate than immediate, and the government is authorized by FISA to be immediate. Nor need there be fear of lack of cooperation from the secretly operating Foreign Intelligence Surveillance Court, from which warrants need be sought. The court can and does act very quickly -- once a judge held a hearing in his living room at 3 a.m. on applications for a warrant -- and last year, it is reported, the court received 1754 applications for warrants and denied not even a single one. From 1995-2004 the court received over 10,600 applications for warrants and from 1978 onward it has received nearly 19,000, and in this entire period it has turned down only four of the nearly 19,000 (all four in 2003, apparently). So, if there is to be a fear here, it is not that the court will be uncooperative, it is that the court is usually a rubber stamp. (Indeed, the head of the court is the pro-establishment Judge Colleen Kollar-Kotelly). The sum of it is that the smoke being blown about the need for speed is just another excuse for the overarching principle of Ich bin der Staat, L’Etat, c’est moi. I am the State and therefore I can do whatever I want.

The only administration claim that makes even the slightest intellectual sense is one that amounts to saying that the FISA procedure was ignored because the government wanted to conduct surveillance that could not meet even the obviously minimal standards of a FISA court that rejected none of 1,754 applications for warrants last year and only 4 of nearly 19,000 since 1978. But this claim simply leads to the heart of the problem: it simply leads to the fact that, as has been said here before, it is now no longer the fates of our enemies that is involved, but rather the rights and freedom of Americans themselves. For we are faced with an Executive whose charge is led by the dumb Bush and the truly evil Cheney, that says it can do whatever it wants in the name of allegedly safeguarding America, and that whatever it does for this claimed purpose is therefore ipso facto legal regardless of whether it is in violation of statutory law, in violation of longstanding custom and precedent, or in violation of any reasonable conception of humanity. If the President says it’s necessary to torture people to safeguard America, and even to murder some of them as part of the interrogation process in order to safeguard the country, then this is legal. If he says it’s necessary to secretly kidnap people, apparently by the thousands, and secretly fly them off to other countries where they will be tortured, all as part of a process that is sanitized by calling it "rendition," then this is legal. If he says, it is necessary to engage in permanently warrantless wiretaps, then this is legal. And so on. Why, then, would it not be legal, if the President says it must be done to safeguard America, to pick up Americans off the street and beat the crap out of them (or worse) in prison in order to obtain information? Why wouldn’t it be legal, if the President says it must be done to safeguard our country, to wiretap two or three million people, or to break into their homes in order to steal their papers, computers, etc. in order to obtain information (like Nixon’s henchmen broke into the office of Daniel Ellsberg’s psychiatrist for this very purpose)?

You know, I don’t know who said Ich bin der Staat, or even if someone actually did say it. It sounds like something that should have been said by Adolf Hitler, since he so clearly acted in accordance with it and almost surely must have believed it. L’Etat, c’est moi was said by Louis XIV. (So maybe Ich bin der Staat is only the German translation of what Louis XIV said.) Regardless, the phrases pluperfectly describe Bush and his henchmen, since, as indicated, their transparent attitude is that whatever the President claims should be done in the name of national security, legally can be done. Thus it is that today we find that our country has been doing things, many of them discussed above, that would have once seemed inconceivable, even in the darkest days of the Civil War or World War II. Because of the orders and opinions of Bush and his henchmen we, as sometimes said above, have tortured and killed prisoners, kidnapped thousands (apparently) of people as part of the process that is sanitized by calling it "rendition," have sent kidnapped people to other countries to be tortured, have run secret prisons in foreign countries, have secretly held various "high value" prisoners in compounds located God knows where, have conducted warrantless electronic surveillance on Americans, on false premises have started a war that has killed over 2,000 Americans and 30,000 Iraqis, and have done God knows what else that has not yet been disclosed. It is little wonder given all this, and given claims that the President can do whatever he wants, that one believes it is democracy and freedom that have become at stake. Who knows what else Bush and company might want to do and might therefore say they legally have the power to do, the laws of Congress be damned. If Bush feels he has to clap citizens in irons to save other Americans, will he not do it? If he has to break into homes and offices to get information he says is necessary to safeguard America, will he not do it? Will his minion lawyer not write memos saying all this and more is legal?

One wishes there were no need for concern about the possible current existence of things we do not even know about yet or for concerns about future actions. But it was, I think, Germaine Greer who said a few decades ago that a person’s views are a cluster, that if a guy on an airplane told her what he thinks about one thing, she could almost surely tell you what he thinks about a lot of things. She was, of course, dead right. And the cluster of views held by Bush, Cheney, et al., are really pretty rotten, as made plain by the roster of once inconceivable things we have now done. We did all these things because those guys claimed them essential and ordered them done. People who variously are and collectively include, a former drunk, a serial failure in business, a drunken flunk-out from Yale when less than two percent of Yalies flunked out, a draft dodger, a combat avoider, guys who have spent their lives getting ahead by pull, connections and family influence rather than brains and talent (which they don’t have), and guys who are just plain mean, nasty bastards are at the helm, and ardently believe in doing the terrible things we have done. Are we supposed to not fear the possibility that there could already be more horrible stuff which we don’t even know about yet, or that in future more such stuff could be done? Are we supposed to not worry about this? I don’t think so, as it is said. We can hope that there is and will be nothing more, but we shouldn’t bank on it, especially given the kind of people, the mean, nasty bastards, the minor Hitlerites, who are in highest office.

* * * * *
In a posting of June 27, 2005, this blogger discussed the fact that The New York Times had recently admitted that the paper had changed articles in response to concerns expressed in advance by the CIA and other government agencies. Since the paper would not disclose what articles there were, or what changes had been made, it was said here that "For all we know, the excluded facts or details could be ones of enormous importance for the public to know. The possibilities will not bear mention; the mind reels at some of them."

As indeed the mind should have. For now we know one of the stories that was not only changed, but was killed for a year: the story about the warrantless electronic disclosure authorized by Bush (and, as he himself has said, reauthorized by him 30 times). When it finally broke the story a few weeks ago, The Times said, in its lengthy article, that the government had asked it not to print the story, and it therefore had in fact delayed it for a year to do "additional reporting" (and then had omitted certain unknown details). Imagine that: The Times, at the behest of the government, sat on this nation-shaking story for over a year without disclosing it. Does this not remind you of The Times’ failure, at government request, to print what it knew in the early 1960s about the impending Bay of Pigs invasion, the invasion which therefore went ahead because it had not been publicly disclosed and which proved to be a perfect storm of disaster? No doubt The Times felt it was acting patriotically in both cases, but we know that its failure to perform its First Amendment duty led to disaster at the Bay of Pigs. And it is not unfair to suspect that bending its knee to the government for one year with regard to illegal surveillance will also prove a horrible mistake, just as its failure to question the government’s bovine-defecation-reasons for going to war in Iraq was a horrible mistake. (Would one think, by the way, that The Times should have bent the knee to the government’s demand that it not publish The Pentagon Papers?)

The Times did not disclose why it bent the knee for one year on the electronic eavesdropping story, and there has been but little notice or discussion of the matter in the media. Currently, one does not know why The Times backed off for a year and can only guess at the reasons. Had the bigwigs at The Times -- Sulzberger, Keller, and the rest of them -- simply forgotten, or did they deliberately ignore, the lessons of the Bay of Pigs, the Pentagon Papers, the failure to question the purported reasons for invading Iraq? Did Bush and company mislead them in some way that caused them to feel a need to delay for a year and to do more investigating before printing? Did Bush and company threaten them in some way that caused them to back off for a year?

Who knows? But is this a matter which cries out for full disclosure? You bet it is. When a newspaper, let alone the country’s leading newspaper, sits on a story like this for a year, instead of telling the public what it has every right to know and a deep interest in knowing because the nature of our governing system is involved and our freedoms are involved, when the nation’s paper of record sits on a story like this for a year, its conduct and the reasons for its conduct demand explanation and analysis.

No doubt the government does not want such explanation and analysis, because, as history is our guide, it is dollars to doughnuts that some form of government misconduct is likely to be involved, some form of government deception or outright lies or threats. No doubt Arthur Sulzberger and Bill Keller (and some others too at The Times?) do not want such explanation and analysis, because it could well show that they screwed up in some way in delaying publication for a year. Either Sulzberger, or Keller, or both, are already under fire for the Jayson Blair case, the Judith Miller fiasco, the unquestioning acceptance of false government claims as to why we should invade Iraq. The last thing they can want is the possibility of more bad grades for mishandling the electronic surveillance matter.

But there should be explanation, analysis and criticism, and let the chips fall where they may. The Times -- the nation’s major newspaper, the paper on which so many depend so extensively -- is a public trust, as is said to be recognized by the entire Sulzberger-Dryfoos family. If this public trust is being mishandled by incompetent executives who keep effing up, then the family has a responsibility to the paper and the country to deal with this misfortune by replacing incompetents with competents. To know whether such action is required, one must know not just the whys and wherefores of the Jayson Blair, Judith Miller and WMD matter, but the whys and wherefores of the electronic surveillance matter. The family should see to it that all this is brought out if Sulzberger and Keller do not do so themselves.

There is one other matter that has been brought up here before and is vitally related to The Times story. That is the question of the reporter’s privilege of confidentiality.

It appears that one of the big reasons that The Times was able to learn about and report on the warrantless eavesdropping is that at least a dozen people in government agencies, including the NSA, were so worried about the legality and propriety of the eavesdropping that they were willing to talk to The Times on condition of being granted anonymity. King George, however, has ordered an investigation. He wants to find out who these people were and clap them in irons because they revealed his illegal conduct. It is possible that one way he might try to learn their identities is by subpoenaing the reporters in an effort to force them to reveal their sources or to confirm or deny various pieces of information. If this were to happen, The Times should fight him to the death, for freedom of the press to perform its first amendment duty of revealing governmental misconduct to the people -- the very duty mentioned by Justice Black in The Pentagon Papers Case -- would be deeply involved, as derivatively would be the safeguarding of the freedom of citizens themselves. It has been said before here that, in terms of the purposes of the first amendment, prominent among which is the revelation of governmental misconduct so that it can be stopped, there is a vast difference between governmental insiders revealing such misconduct to the press on an anonymous, confidential basis in the hope that it may thereby be stopped, as occurred in the electronic surveillance case, and government insiders using the press, on an anonymous, confidential basis, in order to further governmental misconduct, as Libby, Rove and Cheney have done on the Valerie Plame case. If we want to carry out the first amendment purpose of stopping governmental misconduct, there should be a privilege of confidentiality in the first case but not the second.

One suspects that The Times, as it should, will fight the government to the death if its reporters are subpoenaed in the warrantless surveillance case. For about a couple of months now, the paper’s news columns (like some other media too) have regularly given the reasons why sources who revealed particular matters did so only on condition of anonymity. It is regularly said in news stories that sources required anonymity because they were not authorized to speak about a matter, or because a matter was classified, etc. This likely is being done partly as a result of the heat that has recently been put on the media for its prior vast overuse of anonymous sources without ever mentioning the fact, let alone the reason for it. But doubtlessly it is also being done to build a record, a public record, of all the information that the paper (like other media) could bring to the public only by granting anonymity to sources who otherwise would not talk. One builds a record for a reason. Here the reason almost surely is to have a conveniently available public record of the importance of confidentiality in bringing important information to people should there be legal proceedings seeking to force reporters to reveal sources’ identities or confidential information or documents, or should it prove necessary to seek state or federal legislation protecting the confidentiality of sources. So, as said, the Times (and other media too) seems to be preparing to fight if necessary, and one say more power to them in the warrantless surveillance matter, where our freedoms are at stake.

* * * * *
This brings me to the subject of Congress. This body has been assailed here on prior occasions as being collectively and individually cowardly and unintelligent, and as failing to meet its constitutional responsibilities in the area of national defense. In this regard it has intentionally surrendered to the executive its power to decide in war lest legislators lose favor and elections due to their decisions on whether we should fight wars. Craven, selfish political purposes have triumphed big time over responsibility and intelligence, a triumph which is not confined to the subject of war, where legislators let the President do whatever he wants, but which extends to all areas, so that money rules everything and rotten human beings, even crooks, like Tom DeLay and Duke whatshisname, become national leaders inside the congress and the Abramofs of the world become mastermind manipulators outside of it.

The institutional and individual rot in Congress has now been put on display in the electronic surveillance area. Here Congress was supposed to exercise oversight over the executive branch. Well, the way this "oversight" was "exercised" was that a small number of legislators at the head of relevant committees would go to the White House, where Cheney and company would rapidly go through subjects that are claimed to be technical and complex. The legislators could bring no staff and were not allowed even to take notes -- how could any self respecting human being accept a condition under which he or she is told, has it imposed on him/her, is ordered, that he/she is not permitted to take notes on a serious and difficult subject but is expected nonetheless to learn and exercise oversight over it. We would consider a no-notetaking edict bizarre, foolish and self defeating if imposed even on a high school freshman, let alone a student in college or graduate school, yet here are federal legislators going along with this. How craven, how despicable. The mind reels at this display of good soldier Schweikism, at this craven performance worthy of a totally subjugated Reichstag.

In addition to being allowed no staff and no notes, legislators say they were unable to discuss what they learned with anybody, lest they violate rules of classification and secrecy. When one of them, Jay Rockefeller, wished to register concerns in writing, he could not even have a secretary type the letter lest the secretary see what he was saying, and instead he had to send a handwritten letter. (And when one NSA official privately mentioned his concerns to a Congressional official, nothing ensued because "‘People just looked the other way because they didn’t want to know what was going on.’") Words fail one. How can grown men and women act so cravenly? Is there no self pride? I guess to put the question is to answer it, as I think Holmes once said.

What an interesting, what a horrible, contrast is highlighted by all this. Here we have an institution which is almost universally conceded to be filled with incredible egotists, yet at the same time its members are so craven and so lacking in a healthy self pride and a healthy sense of dignity, that they can be imposed on in this way. Oh boy. Oh boy, indeed.

And now that the Times has performed (if a year tardily) the enormous public service of disclosing the warrantless surveillance ( a disclosure for which its anonymous sources should be given medals but will instead receive jail sentences if Bush has his way), members of Congress, including some of the handful of supposed "oversighters" apparently, are, to quote Humphrey Bogart, "shocked, shocked" by what they are learning. Well this craven group has about as much right to be shocked at what the Executive is doing as the Reichstag had to be shocked at things Hitler did. The cravens in Congress allowed it to happen, doing so by acceding to impossible, craven and even undignified conditions and, having in this way sowed the wind, they are now doing no more than reaping the whirlwind of their despicable irresponsibility.

Now being "shocked, shocked" at what Congress’ decades of irresponsibility have wrought, some legislators are starting to talk about corrective action, even impeachment of Bush and Cheney. Well, we shall see what the new year brings. It has been said here many times that there should be impeachment because Bush and Cheney are plainly committing the felony of conspiracy to commit torture, which is punishable by up to life imprisonment and, being a felony, is an impeachable high crime or misdemeanor. No conservative has ever written or emailed to deny that they are violating the anti-torture statute, but thus far neither Congress nor the media has wanted to discuss this. Now Bush and Cheney are committing the felony of unlawful electronic surveillance in violation of the FISA, which is a felony punishable by up to five years in prison and is likewise an impeachable high crime and misdemeanor. (Senator Boxer says that she heard John Dean say that Bush’s recent admission about the surveillance is the first time that he, Dean, had ever heard a President admit to an impeachable offense.)

So now we know that Bush is guilty of at least two impeachable crimes. And many people think -- not implausibly -- that the distortions if not outright lies by which Bush, Cheney, Rumsfeld, et al., took us into war are themselves impeachable as political (albeit not legal) high crimes and misdemeanors.

So there are lots of grounds for impeachment, even without knowing other possible horribles that may be uncovered. But whether the congress, much less a Republican-controlled one, will have the political will, courage and brains to do its duty in this regard can justifiably be doubted.

There are other possible things brewing too, of course. Investigations are being discussed and censure is being mentioned. These actions may be, almost surely would be, politically easier than impeachment, but nothing can really substitute for it as a vehicle for stopping gross usurpations of power and ungodly distortions of the constitutional plan envisioned by the founders whom Bush and his fellow right wingers love to (falsely) cite.

The confirmation of Samuel Alito should also be affected, although, like impeachment, this probably won’t happen even though it should happen. By rights, as it were, Alito’s confirmation hearings should be put off until after full hearings are held, perhaps by the Senate Judiciary Committee, into the question of the gross usurpations of power by the Executive. Otherwise, at least if one assumes Congress might impeach and convict Bush/Cheney, or at minimum will issue a formal censure of them, we are likely to get yet another Supreme Court Justice nominated by an unsurper to carry out his views, including views of presidential power. (If memory serves, the Republicans stopped Abe Fortas from gaining a higher judicial position when Lyndon Johnson, who nominated him, had become thoroughly discredited, and one is hard pressed to understand any principled reason why the situation should be different now.)

But, assuming as one does that Alito’s nomination hearings will go forward as scheduled, it is more important than ever for Senators on the Judiciary Committee to ask him sharp, short, penetrating questions about his views of Presidential power, questions of the type Senator Specter had submitted to Harriet Miers (remember her in the welter of subsequent disasters?) and of the type illustrated here in a posting of November 4, 2005. It is similarly important that Senators demand full, candid answers to those questions, rather than letting Alito get away with the vanilla crapola they let John Roberts get away with, and that Senators reject Alito if his answers indicate that he would or might support, and would not necessarily vigorously oppose, the kind of constitutional distortions, the kind of overweening, freedom destroying executive supremacy, sought by the freedom-destroying unsurper of power who nominated him. We cannot remain a free country with the Bush/Cheney view of the Executive uber alles -- a view at the opposite pole from the framers’ desire for a government where, precisely to avoid tyranny, the legislature is supreme as between the two political branches, and the Senate should not confirm to the Supreme Court a man who will not pledge to oppose this usurpation, this destruction of the constitutional plan.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.