Don’t We Have a Constitution, Not a King?
By Marjorie Cohn, AlterNet
As the nation focused on whether Congress would exercise its constitutional duty to cut funding for the war, Bush quietly issued an unconstitutional bombshell that went virtually unnoticed by the corporate media.
The National Security and Homeland Security Presidential Directive, signed on May 9, 2007, would place all governmental power in the hands of the President and effectively abolish the checks and balances in the Constitution.
If a “catastrophic emergency” — which could include a terrorist attack or a natural disaster — occurs, Bush’s new directive says: “The President shall lead the activities of the Federal Government for ensuring constitutional government.”
What about the other two co-equal branches of government? The directive throws them a bone by speaking of a “cooperative effort” among the three branches, “coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers.” The Vice-President would help to implement the plans.
“Comity,” however, means courtesy, and the President would decide what kind of respect for the other two branches of government would be “proper.” This Presidential Directive is a blatant power grab by Bush to institutionalize “the unitary executive.”
A seemingly innocuous phrase, the unitary executive theory actually represents a radical, ultra rightwing interpretation of the powers of the presidency. Championed by the conservative Federalist Society, the unitary executive doctrine gathers all power in the hands of the President and insulates him from any oversight by the congressional or judicial branches.
In a November 2000 speech to the Federalist Society, then Judge Samuel Alito said the Constitution “makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power — the whole thing.”
These “unitarians” claim that all federal agencies, even those constitutionally created by Congress, are beholden to the Chief Executive, that is, the President. This means that Bush could disband agencies like the Federal Communications Commission, the Food and Drug Administration, the Federal Reserve Board, etc., if they weren’t to his liking.
Indeed, Bush signed an executive order stating that each federal agency must have a regulatory policy office run by a political appointee. Consumer advocates were concerned that this directive was aimed at weakening the Environmental Protection Agency and the Occupational Safety and Health Administration. The unitary executive dogma represents audacious presidential overreaching into the constitutional province of the other two branches of government.
This doctrine took shape within the Bush administration shortly after 9/11. On September 25, 2001, former deputy assistant attorney general John Yoo used the words “unitary executive” in a memo he wrote for the White House: “The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.” Six weeks later, Bush began using that phrase in his signing statements.
As of December 22, 2006, Bush had used the words “unitary executive” 145 times in his signing statements and executive orders. Yoo, one of the chief architects of Bush’s doctrine of unfettered executive power, wrote memoranda advising Bush that because he was commander in chief, he could make war any time he thought there was a threat, and he didn’t have to comply with the Geneva Conventions.
In a 2005 debate with Notre Dame professor Doug Cassel, Yoo argued there is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child’s testicles.
The unitary executive theory has already cropped up in Supreme Court opinions. In his lone dissent in Hamdi v. Rumsfeld, Justice Clarence Thomas cited “the structural advantages of a unitary Executive.” He disagreed with the Court that due process demands an American citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. Thomas wrote, “Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.”
Justice Thomas’s theory fails to recognize why our Constitution provides for three co-equal branches of government.
In 1926, Justice Louis Brandeis explained the constitutional role of the separation of powers. He wrote, “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”
Eighty years later, noted conservative Grover Norquist, describing the unitary executive theory, echoed Brandeis’s sentiment. Norquist said, “you don’t have a constitution; you have a king.”
One wonders what Bush & Co. are setting up with the new Presidential Directive. What if, heaven forbid, some sort of catastrophic event were to occur just before the 2008 election? Bush could use this directive to suspend the election. This administration has gone to great lengths to remain in Iraq. It has built huge permanent military bases and pushed to privatize Iraq’s oil. Bush and Cheney may be unwilling to relinquish power to a successor administration.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published in July. Her articles are archived at http://www.marjoriecohn.com/.
© 2007 Independent Media Institute. All rights reserved
Available for a limited time here
The Iraq Veterans Memorial is an online war memorial that honors the members of the U.S. armed forces who have lost their lives serving in the Iraq War. The Memorial is a collection of video memories from family, friends, military colleagues, and co-workers of those that have fallen.
There is a video, which we cannot seem to embed here.
Go behind the scenes with actual agents from the Ministry of Love as they prepare a book mailing!
We have received a promise of 30 new books from Comrade Longsine of Montana, coincidentally the home state of a certain senator whose name escapes our memory at the moment.
We thank Comrade Longsine, and his co-conspirators: Comrades Evans, Ham, Klinger,
Miller, Naples, Parks, Puttkammer, and Setzer. We are also grateful to Shakespeare & Company who will be supplying the books.
Once received, this donation will bring our collection total to 116, or 37% of our goal!
A glorious victory: the Ministry of Love has recently shipped copies of the book to several dozen unpersons.
Video of this historic event will be posted shortly.
Today, we are indebted to Comrade Paglino of Ohio and Comrade Loftis of New York, who have brought our collection total to 86 books. This represents 27% of our goal!
Meanwhile, we are still accepting copies of 1984 at:
PO Box 655
Guilford, CT 06437
In other news, we wish to share with you photographs of actual members of the Ministry of Love, who recently emerged from their underground headquarters to mourn the passing of the United States Constitution.
Here you see the gravesite where the Constitution was laid to its eternal rest.
Mourners gather to pay their respects to the document. This small child was especially upset.
Finally, Comrade Cobb reads the eulogy.
Here at Miniluv we understand that many of the proles who peruse this site may not have the latest edition of the Newspeak Dictionary. Therefore we have included a few definitions below. All these were found at
Learning to love Big Brother: George W. Bush channels George Orwell
by Daniel Kurtzman
Sunday, July 28, 2002
San Francisco Chronicle
Here’s a question for constitutional scholars: Can a sitting president be charged with plagiarism?
As President Bush wages his war against terrorism and moves to create a huge homeland security apparatus, he appears to be borrowing heavily, if not ripping off ideas outright, from George Orwell. The work in question is “1984, ” the prophetic novel about a government that controls the masses by spreading propaganda, cracking down on subversive thought and altering history to suit its needs. It was intended to be read as a warning about the evils of totalitarianism — not a how-to manual.
Granted, we’re a long way from resembling the kind of authoritarian state Orwell depicted, but some of the similarities are starting to get a bit eerie.
In “1984,” the state remained perpetually at war against a vague and ever-changing enemy. The war took place largely in the abstract, but it served as a convenient vehicle to fuel hatred, nurture fear and justify the regime’s autocratic practices.
Bush’s war against terrorism has become almost as amorphous. Although we are told the president’s resolve is steady and the mission clear, we seem to know less and less about the enemy we are fighting. What began as a war against Osama bin Laden and al Qaeda quickly morphed into a war against Afghanistan, followed by dire warnings about an “Axis of Evil,” the targeting of terrorists in some 50 to 60 countries, and now the beginnings of a major campaign against Iraq. Exactly what will constitute success in this war remains unclear, but the one thing the Bush administration has made certain is that the war will continue “indefinitely.”
MINISTRY OF TRUTH
Serving as the propaganda arm of the ruling party in “1984,” the Ministry of Truth not only spread lies to suit its strategic goals, but constantly rewrote and falsified history. It is a practice that has become increasingly commonplace in the Bush White House, where presidential transcripts are routinely sanitized to remove the president’s gaffes, accounts of intelligence warnings prior to Sept. 11 get spottier with each retelling, and the facts surrounding Bush’s past financial dealings are subject to continual revision.
The Bush administration has been surprisingly up front about its intentions of propagating falsehoods. In February, for example, the Pentagon announced a plan to create an Office of Strategic Influence to provide false news and information abroad to help manipulate public opinion and further its military objectives. Following a public outcry, the Pentagon said it would close the office — news that would have sounded more convincing had it not come from a place that just announced it was planning to spread misinformation.
An omnipresent and all-powerful leader, Big Brother commanded the total, unquestioning support of the people. He was both adored and feared, and no one dared speak out against him, lest they be met by the wrath of the state.
President Bush may not be as menacing a figure, but he has hardly concealed his desire for greater powers. Never mind that he has mentioned — on no fewer than three occasions — how much easier things would be if he were dictator. By abandoning many of the checks and balances established in the Constitution to keep any one branch of government from becoming too powerful, Bush has already achieved the greatest expansion of executive powers since Nixon. His approval ratings remain remarkably high, and his minions have worked hard to cultivate an image of infallibility. Nowhere was that more apparent than during a recent commencement address Bush gave at Ohio State, where students were threatened with arrest and expulsion if they protested the speech. They were ordered to give him a “thunderous ovation,” and they did.
BIG BROTHER IS WATCHING
The ever-watchful eye of Big Brother kept constant tabs on the citizens of Orwell’s totalitarian state, using two-way telescreens to monitor people’s every move while simultaneously broadcasting party propaganda.
While that technology may not have arrived yet, public video surveillance has become all the rage in law enforcement, with cameras being deployed everywhere from sporting events to public beaches. The Bush administration has also announced plans to recruit millions of Americans to form a corps of citizen spies who will serve as “extra eyes and ears for law enforcement,” reporting any suspicious activity as part of a program dubbed Operation TIPS —
Terrorism Information and Prevention System.
And thanks to the hastily passed USA Patriot Act, the Justice Department has sweeping new powers to monitor phone conversations, Internet usage, business transactions and library reading records. Best of all, law enforcement need not be burdened any longer with such inconveniences as probable cause.
Charged with eradicating dissent and ferreting out resistance, the ever- present Thought Police described in “1984” carefully monitored all unorthodox or potentially subversive thoughts. The Bush administration is not prosecuting thought crime yet, but members have been quick to question the patriotism of anyone who dares criticize their handling of the war on terrorism or homeland defense. Take, for example, the way Attorney General John Ashcroft answered critics of his anti-terrorism measures, saying that opponents of the administration “only aid terrorists” and “give ammunition to America’s enemies. ”
Even more ominous was the stern warning White House Press Secretary Ari Fleischer sent to Americans after Bill Maher, host of the now defunct “Politically Incorrect,” called past U.S. military actions “cowardly.” Said Fleischer, “There are reminders to all Americans that they need to watch what they say, watch what they do, and this is not a time for remarks like that; there never is.”
What would it take to turn America into the kind of society that Orwell warned about, a society that envisions war as peace, freedom as slavery and ignorance as strength? Would it happen overnight, or would it involve a gradual erosion of freedoms with the people’s consent?
Because we are a nation at war — as we are constantly reminded — most Americans say they are willing to sacrifice many of our freedoms in return for the promise of greater security. We have been asked to put our blind faith in government and most of us have done so with patriotic fervor. But when the government abuses that trust and begins to stamp out the freedom of dissent that is the hallmark of a democratic society, can there be any turning back?
So powerful was the state’s control over people’s minds in “1984” that, eventually, everyone came to love Big Brother. Perhaps in time we all will, too.
Daniel Kurtzman is a San Francisco writer and former Washington political correspondent.
Our brave comrades have thwarted the underground resistance to send the Ministry of Love a total of 57 copies of 1984. This is a glorious victory for Miniluv!
While we are still gathering books to reach our final goal of 315, we have become aware that many of the Inner Party Members who voted for torture did not survive the Great November Purge, and are soon to be vaporized. Therefore, we will be sending copies to these unpersons sooner than expected.
We are currently consulting with the Ministry of Truth to prepare a “total information awareness” campaign to promote this mailing. Any help that our comrades can provide is greatly appreciated.
The Ministry of Love announces its fourth-quarter plan to gather 315 separate copies of George Orwell’s landmark novel 1984, from proles and party comrades alike, all across our brave homeland.
Once collected, all 315 copies will be mailed separately to each Member of Congress who voted YEA on the Military Commissions Act (a.k.a. The Torture Bill) on September 28th and 29th, in the sixth year of our glorious leader’s regime. These shipments will occur with great fanfare, and hopefully, a television news crew on hand to capture the momentous occasion for inclusion in the Ministry of Truth’s ever-growing archives.
In case you’ve forgotten, our glorious leader’s regime has gifted us with the following remarkably Orwellian achievements:
* spying on ordinary citizens without their knowledge
* paid propaganda masquerading as news reports
* removal by Thought Police of ungoodthinkers (protesters) from all Party rallies and celebrations featuring our glorious leader
* community members encouraged to report “suspicious activities” of neighbors and co-workers
* the promise of an endless war
(for a more comprehensive list, go to studentsfororwell.org)
Now, through the farsightedness of these distinguished 315 Inner Party Members, House and Senate, we can add sanctioned torture and indefinite detainment of suspects to that noteworthy list.
To recognize those who have brought us one step closer to the utopian world envisioned by Orwell, Miniluv will enclose a handwritten note with each copy of 1984, thanking each 315 Inner Party Member individually for their achievement.
Send new and used copies of 1984 to the following address:
Ministry of Love
Guilford, CT 06437
If buying books online, have them shipped directly to Miniluv.
If you would like your donation earmarked for a particular Inner Party Member, please note that with your shipment.
Goodthinkers always use media mail rates for shipping books.
Cash donations for postage to the Inner Party Members are doubleplushelpful.
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH