Be afraid
2007-01-07 17:40:29 UTC
Start Preparing Now for the Coming "Cataclysmic Fight to the Death"
by Jeremy Brecher and Brendan Smith
While the November elections provided the Democratic Party a public
mandate to end the war in Iraq, President Bush has signaled his intent to
utilize his institutional powers as Commander in Chief to maintain and even
escalate the U.S. commitment, public or congressional opinion
notwithstanding. The Democratic leadership has removed two obvious ways to
stop him - impeachment and a cutoff of war funds - from the table. Some
Democrats have even indicated they will acquiesce in the sending of tens of
thousands more troops to Iraq.
For those for in Congress and the public whom acquiescence is not an
option, there remains an indirect route to challenging Presidential
war-making power and force withdrawal from Iraq. That is to so discredit the
Administration in the eyes of the public that neither Republican politicians
nor the military, the intelligence agencies, the foreign policy
establishment, or the corporate elite will allow it to continue on its
catastrophic course. That requires a devastating exposure of the
criminality, corruption, stupidity, and false premises of those who are
making the decisions.
The road to withdrawal from Iraq, in short, may run through a
congressional hearing room. But whether it does will depend in large part on
how Democrats go about their investigations and how much the public demands
they truly confront the Bush administration's criminality.
Just in the first three weeks of the session, Senate Democrats plan to
call at least 13 hearings on Iraq.1 On the House side, Rep. John Murtha has
promised to hold two hearings a day for several months beginning on January
17th, and many others are planned as well.
The Democrats' investigations could follow either of two strategies.
One is to use hearings simply to service their '08 election goals by
revealing some blemishes in Bush's Iraq policy -- while letting the war,
torture, spying, and other crimes continue unimpeded. The alternate is to
investigate with the intent of driving a dagger into the soft underbelly of
the Bush juggernaut - its criminal violation of the U.S. Constitution and
U.S. and international law and its criminal coverup of its abuses.
The upcoming hearings will undoubtedly include demands for information
that the Administration has up till now refused to provide. The consequence
will be a power struggle which could - if Democrats so choose - be the
defining moment in the effort to establish legal and constitutional
accountability for the Bush administration - and thereby force it to end the
war.
The Bush administration has been historic in its refusal to share
information with Congress or the public. It has strong motivations to
continue to conceal such information, such as avoiding humiliation, further
public exposure, and probable criminal liability. It has sent strong signals
it will indeed refuse to provide such information. As Time magazine wrote
just before the election,
"When it comes to deploying its Executive power, which is dear to
Bush's understanding of the presidency, the President's team has been
planning for what one strategist described as 'a cataclysmic fight to the
death' over the balance between Congress and White House if confronted with
congressional subpoenas it deems inappropriate. The strategist says the Bush
team is 'going to assert that power, and they're going to fight it all the
way to the Supreme Court on every issue, every time, no compromise, no
discussion, no negotiation."2
As a result, the U.S. is headed toward what Tom Engelhardt has called
"the mother of all Constitutional crises."3
Indeed, that crisis has already begun. For example, just after the
elections the Justice Department, in response to an ACLU suit, disclosed in
court the existence of directives from the President and the CIA General
Counsel that may have authorized torture and other illegal interrogation
techniques. Sen. Patrick Leahy, incoming chair of the Senate Judiciary
Committee, immediately wrote Attorney General Alberto Gonzales requesting
the documents and related records. On January 2, Leahy released a letter
from the Justice Department refusing to provide the documents on grounds of
national security and executive privilege.4 Leahy decried the refusal and
added, "I have advised the Attorney General that I plan to pursue this
matter further at the Committee's first oversight hearing of the Department
of Justice."5
This is just the first of what are likely to be myriad such conflicts.
Both sides are likely to maneuver to determine the issues over which the
climactic struggles will arise. The Administration will probably maneuver
for issues on which it can make a strong national security case. Congress
will probably seek to steer confrontation to issues like war profiteering on
which the Administration will appear to be withholding information for
self-serving reasons, e.g. avoiding embarrassment or criminal culpability.
Constitutionalists, progressives, and the public should support the
congressional assertion of the right to know, whatever subject emerges as
the decisive bone of contention. However, they should ensure that this does
not become a means for either side to take other important but more
controversial issues (such as the origins of the war and the commission of
war crimes) off the table.
The Administration has been preparing for this situation for a long
time; news reports indicate that even prior to the elections it hired
lawyers specifically to plan for such a contingency. It is likely to use a
variety of delaying tactics, diversions, and pseudo-compliances to bring the
issue to a head at a time most advantageous to it. It is also likely to
engage in counter-attacks, such as the recent attempt by its prosecutors to
use a grand jury subpoena to force the ACLU to turn over all copies of a
classified document.6 (The revocation of its demand also shows the
effectiveness of firm resistance to Administration intimidation.)
Notwithstanding Administration delays and diversions, Congressional
access to Administration documents is likely to become a serious power
struggle quite rapidly after the opening of the new Congress. A plausible
scenario looks something like this:
--A congressional committee will request information.
--The Administration will stonewall.
--The committee will issue a subpoena.
--Amidst a sea of justifications and vilifications, the
Administration will fail or refuse to produce documents.
--The committee will pass a contempt citation.
--The Senate or House will pass a contempt citation.
--The contempt citation will be referred to the Justice Department.
--The Justice Department will fail or refuse to bring contempt
charges.
At that point Congress will have several options:
--It can make angry noises while in actuality accepting
Administration intransigence.
--It can pass legislation establishing a special prosecutor.
--It can appeal to the courts by suing the Administration.
--It can establish a select committee or otherwise threaten
impeachment against whatever officials it decides to hold accountable, from
the President and Vice-President through cabinet members and other top
officials.
What choice Congress makes will depend largely on public perception of
and response to the situation. For example, in the Watergate scandal, public
outrage at the "Saturday Night Massacre" tipped the balance toward
congressional impeachment hearings. On the other hand, public disapproval of
the attempt to impeach President Clinton actually contributed to a
Democratic victory at the next elections.
Constitutionalists and progressives need to start planning proactively
to prepare the public to respond appropriately and effectively to this
impending confrontation.
First, that requires an on-going interpretation to people of what is
happening and what it means.
Second, it involves defining venues for action in which large numbers
of people can participate. Rep. John Conyers' mobilization of popular
support for demanding information about the Downing Street memos represents
on a small scale what will need to be done on a larger scale.
Third, it requires creating some kind of infrastructure or
rapid-response network with the capacity to support such a mobilization.
Fourth, it calls for a broad coalition that reaches far beyond
progressives to include conservatives committed to the rule of law and a
broad public concerned about the abuse of presidential power and the
preservation of democracy. Such a coalition already exists in nascent form,
for example in the Constitution Project, which has brought together such
improbably allies as Al Gore and Bob Barr to articulate concern about Bush
administration abuse of presidential power.
The power and willingness of Congress to affect Bush's Iraq policies
depends on utilizing the vulnerability of the Administration and its
Republican supporters to severe loss of effective power, criminal
investigation, and/or impeachment. That vulnerability is likely to be
greatest, in turn, where the Administration can be shown to engage in
Nixonian abuse of government power to suppress information in its own
interest.
A defeat of the Bush administration on the right of Congress and the
public to know what the government is doing can be the starting point of a
broader effort to establish institutional and cultural vehicles for
controlling executive power - in short, for a transition to democracy.
Jeremy Brecher is a historian whose books include Strike!,
Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler,
In the Name of Democracy: American War Crimes in Iraq and Beyond
(Metropolitan/Holt). He has received five regional Emmy Awards for his
documentary film work. He is a co-founder of WarCrimesWatch.org. Brendan
Smith is a legal analyst whose books include Globalization From Below and,
with Brendan Smith and Jill Cutler, of In the Name of Democracy: American
War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of
Global Labor Strategies and UCLA Law School's Globalization and Labor
Standards Project, and has worked previously for Congressman Bernie Sanders
(I-VT) and a broad range of unions and grassroots groups. His commentary has
appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and
the Baltimore Sun. Contact him at ***@gmail.com.
1 Jeff Zeleny, "Awaiting Bush's Iraq Plan, Democrats Weigh Replies,"
New York Times, 1/4/07.
2 Karen Tumulty, Mike Allen, "It's Lonely at the Top," Time, October
29, 2006.
3 Source?
4 "Comments of Sen. Patrick Leahy" January 2, 2007, including link to
Justice Department letter.
5 "Comments of Sen. Patrick Leahy"
6 Adam Liptak, "U.S. Subpoena Is Seen as Bid to Stop Leaks," New York
Times, 12/14/06.
by Jeremy Brecher and Brendan Smith
While the November elections provided the Democratic Party a public
mandate to end the war in Iraq, President Bush has signaled his intent to
utilize his institutional powers as Commander in Chief to maintain and even
escalate the U.S. commitment, public or congressional opinion
notwithstanding. The Democratic leadership has removed two obvious ways to
stop him - impeachment and a cutoff of war funds - from the table. Some
Democrats have even indicated they will acquiesce in the sending of tens of
thousands more troops to Iraq.
For those for in Congress and the public whom acquiescence is not an
option, there remains an indirect route to challenging Presidential
war-making power and force withdrawal from Iraq. That is to so discredit the
Administration in the eyes of the public that neither Republican politicians
nor the military, the intelligence agencies, the foreign policy
establishment, or the corporate elite will allow it to continue on its
catastrophic course. That requires a devastating exposure of the
criminality, corruption, stupidity, and false premises of those who are
making the decisions.
The road to withdrawal from Iraq, in short, may run through a
congressional hearing room. But whether it does will depend in large part on
how Democrats go about their investigations and how much the public demands
they truly confront the Bush administration's criminality.
Just in the first three weeks of the session, Senate Democrats plan to
call at least 13 hearings on Iraq.1 On the House side, Rep. John Murtha has
promised to hold two hearings a day for several months beginning on January
17th, and many others are planned as well.
The Democrats' investigations could follow either of two strategies.
One is to use hearings simply to service their '08 election goals by
revealing some blemishes in Bush's Iraq policy -- while letting the war,
torture, spying, and other crimes continue unimpeded. The alternate is to
investigate with the intent of driving a dagger into the soft underbelly of
the Bush juggernaut - its criminal violation of the U.S. Constitution and
U.S. and international law and its criminal coverup of its abuses.
The upcoming hearings will undoubtedly include demands for information
that the Administration has up till now refused to provide. The consequence
will be a power struggle which could - if Democrats so choose - be the
defining moment in the effort to establish legal and constitutional
accountability for the Bush administration - and thereby force it to end the
war.
The Bush administration has been historic in its refusal to share
information with Congress or the public. It has strong motivations to
continue to conceal such information, such as avoiding humiliation, further
public exposure, and probable criminal liability. It has sent strong signals
it will indeed refuse to provide such information. As Time magazine wrote
just before the election,
"When it comes to deploying its Executive power, which is dear to
Bush's understanding of the presidency, the President's team has been
planning for what one strategist described as 'a cataclysmic fight to the
death' over the balance between Congress and White House if confronted with
congressional subpoenas it deems inappropriate. The strategist says the Bush
team is 'going to assert that power, and they're going to fight it all the
way to the Supreme Court on every issue, every time, no compromise, no
discussion, no negotiation."2
As a result, the U.S. is headed toward what Tom Engelhardt has called
"the mother of all Constitutional crises."3
Indeed, that crisis has already begun. For example, just after the
elections the Justice Department, in response to an ACLU suit, disclosed in
court the existence of directives from the President and the CIA General
Counsel that may have authorized torture and other illegal interrogation
techniques. Sen. Patrick Leahy, incoming chair of the Senate Judiciary
Committee, immediately wrote Attorney General Alberto Gonzales requesting
the documents and related records. On January 2, Leahy released a letter
from the Justice Department refusing to provide the documents on grounds of
national security and executive privilege.4 Leahy decried the refusal and
added, "I have advised the Attorney General that I plan to pursue this
matter further at the Committee's first oversight hearing of the Department
of Justice."5
This is just the first of what are likely to be myriad such conflicts.
Both sides are likely to maneuver to determine the issues over which the
climactic struggles will arise. The Administration will probably maneuver
for issues on which it can make a strong national security case. Congress
will probably seek to steer confrontation to issues like war profiteering on
which the Administration will appear to be withholding information for
self-serving reasons, e.g. avoiding embarrassment or criminal culpability.
Constitutionalists, progressives, and the public should support the
congressional assertion of the right to know, whatever subject emerges as
the decisive bone of contention. However, they should ensure that this does
not become a means for either side to take other important but more
controversial issues (such as the origins of the war and the commission of
war crimes) off the table.
The Administration has been preparing for this situation for a long
time; news reports indicate that even prior to the elections it hired
lawyers specifically to plan for such a contingency. It is likely to use a
variety of delaying tactics, diversions, and pseudo-compliances to bring the
issue to a head at a time most advantageous to it. It is also likely to
engage in counter-attacks, such as the recent attempt by its prosecutors to
use a grand jury subpoena to force the ACLU to turn over all copies of a
classified document.6 (The revocation of its demand also shows the
effectiveness of firm resistance to Administration intimidation.)
Notwithstanding Administration delays and diversions, Congressional
access to Administration documents is likely to become a serious power
struggle quite rapidly after the opening of the new Congress. A plausible
scenario looks something like this:
--A congressional committee will request information.
--The Administration will stonewall.
--The committee will issue a subpoena.
--Amidst a sea of justifications and vilifications, the
Administration will fail or refuse to produce documents.
--The committee will pass a contempt citation.
--The Senate or House will pass a contempt citation.
--The contempt citation will be referred to the Justice Department.
--The Justice Department will fail or refuse to bring contempt
charges.
At that point Congress will have several options:
--It can make angry noises while in actuality accepting
Administration intransigence.
--It can pass legislation establishing a special prosecutor.
--It can appeal to the courts by suing the Administration.
--It can establish a select committee or otherwise threaten
impeachment against whatever officials it decides to hold accountable, from
the President and Vice-President through cabinet members and other top
officials.
What choice Congress makes will depend largely on public perception of
and response to the situation. For example, in the Watergate scandal, public
outrage at the "Saturday Night Massacre" tipped the balance toward
congressional impeachment hearings. On the other hand, public disapproval of
the attempt to impeach President Clinton actually contributed to a
Democratic victory at the next elections.
Constitutionalists and progressives need to start planning proactively
to prepare the public to respond appropriately and effectively to this
impending confrontation.
First, that requires an on-going interpretation to people of what is
happening and what it means.
Second, it involves defining venues for action in which large numbers
of people can participate. Rep. John Conyers' mobilization of popular
support for demanding information about the Downing Street memos represents
on a small scale what will need to be done on a larger scale.
Third, it requires creating some kind of infrastructure or
rapid-response network with the capacity to support such a mobilization.
Fourth, it calls for a broad coalition that reaches far beyond
progressives to include conservatives committed to the rule of law and a
broad public concerned about the abuse of presidential power and the
preservation of democracy. Such a coalition already exists in nascent form,
for example in the Constitution Project, which has brought together such
improbably allies as Al Gore and Bob Barr to articulate concern about Bush
administration abuse of presidential power.
The power and willingness of Congress to affect Bush's Iraq policies
depends on utilizing the vulnerability of the Administration and its
Republican supporters to severe loss of effective power, criminal
investigation, and/or impeachment. That vulnerability is likely to be
greatest, in turn, where the Administration can be shown to engage in
Nixonian abuse of government power to suppress information in its own
interest.
A defeat of the Bush administration on the right of Congress and the
public to know what the government is doing can be the starting point of a
broader effort to establish institutional and cultural vehicles for
controlling executive power - in short, for a transition to democracy.
Jeremy Brecher is a historian whose books include Strike!,
Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler,
In the Name of Democracy: American War Crimes in Iraq and Beyond
(Metropolitan/Holt). He has received five regional Emmy Awards for his
documentary film work. He is a co-founder of WarCrimesWatch.org. Brendan
Smith is a legal analyst whose books include Globalization From Below and,
with Brendan Smith and Jill Cutler, of In the Name of Democracy: American
War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of
Global Labor Strategies and UCLA Law School's Globalization and Labor
Standards Project, and has worked previously for Congressman Bernie Sanders
(I-VT) and a broad range of unions and grassroots groups. His commentary has
appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and
the Baltimore Sun. Contact him at ***@gmail.com.
1 Jeff Zeleny, "Awaiting Bush's Iraq Plan, Democrats Weigh Replies,"
New York Times, 1/4/07.
2 Karen Tumulty, Mike Allen, "It's Lonely at the Top," Time, October
29, 2006.
3 Source?
4 "Comments of Sen. Patrick Leahy" January 2, 2007, including link to
Justice Department letter.
5 "Comments of Sen. Patrick Leahy"
6 Adam Liptak, "U.S. Subpoena Is Seen as Bid to Stop Leaks," New York
Times, 12/14/06.