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Executive Privilege: Legitimate or ‘Cover up’?

May 23, 2008

The ghosts of Richard Nixon –‘executive privilege’ and a ‘Saturday Night Massacre’ –haunt the House Judiciary Committee probing charges that Bush played politics when he fired some nine US attorneys back in 2006. The firings reminded one of Nixon’s infamous ‘Saturday Night Massacre’ as do Bush’s claims that ‘executives’ are ‘privileged’.

Of course, Bush played politics as did Nixon before him. That’s what idiots in office do! The question is: will Bush be allowed to get away with it? However carefully the courts have crafted the language of ‘executive privilege’, it is still nothing more nor less than an unprecedented exception to the rule of law. ‘Executive privilege’ is another way of saying that while everyone else must obey the spirit and the letter of the law, ‘Presidents’ are above it all and may not be held to account or even investigated. Not even English monarchs were so ‘privileged’. And to make the point, the English chopped off Charles I’s head!

Richard Nixon’s resignation left several issues unresolved only to be summoned up by a ‘President’ even less mature, less intellectually equipped to fulfill the duties of the office than was Nixon himself. Though it should have been consigned to the intellectual graveyard with Nixon’s resignation, the specter of ‘executive privilege’ still holds out for Bush the hope that he may yet get away with it all. The only problem for Bush is this: ‘executive privilege’ is pure bullshit.

There is no mention of ‘executive privilege’ in the Constitution. There is no mention of ‘executive privilege’ in the Bill of Rights. There is no mention of ‘executive privilege’ among those responsibilities and duties assigned to the office of President’ by the Constitution. [See: US Constitution, Article 11] ‘Executive Privilege’ was apparently invented by Washington in 1796 when he cited it to justify his refusal to comply with a House request for documents relating to the negotiations leading to the Jay treaty with England.

The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.

Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum–an order requiring the production of documents and other tangible items–against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.

After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government’s suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.

Jefferson complied with Marshall’s order. However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. And that pattern persists to the present. Thus, President Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr’s grand jury, rather than simply answering a subpoena directing him to appear.

–MICHAEL C. DORF, A Brief History of Executive Privilege, Findlaw

But it would appear that the shoe is on the other foot. Starr had insisted that ‘no one was above the law’. But now, as was the case in the early ’70s, it is the GOP that would seek to find in ‘executive privilege’ a ‘no man’s land’ where GOP office holders might break the law with impunity. It was, after all, the height of the Watergate Scandal in the early 1970s, when then President Nixon cited ‘executive privilege’ to justify his refusal to release the so-called ‘White House tapes’, his secret recordings of every conversation held in the Oval Office.

The Supreme Court considered this argument in the 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Nixon requiring that he produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon’s Administration. Nixon resisted on grounds of executive privilege.

The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.”

Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. Accordingly, the Court ordered President Nixon to divulge the tapes and records. Two weeks after the Court’s decision, Nixon complied with the order. Four days after that, he resigned.

–MICHAEL C. DORF, A Brief History of Executive Privilege, Findlaw

As Dizzy Dean might have put it: “It’s deja vu all over again!” The House Judiciary Committee has subpoenaed Karl Rove in connection with the Siegelman case. Committee chairman, Representative John Conyers Jr. of Michigan, says the committee wants to find out if Rove knows anything about a decision to prosecute former Gov. Donald E. Siegelman of Alabama, a Democrat, who was, in fact, never convicted of bribery and is free pending an appeal.

The claim of executive privilege is always suspect. SCOTUS’ concession that there exists a privilege about matters not concerning ‘national security’ is overly broad, an invitation to folk like Bush or Nixon to plot and scheme against the people. There is no justification for this kind of cover and its defense is a neat circular argument that places ‘public servants’ above the law, raising them above any method by which they may be held to account. In secrecy, the cover of ‘national security’ is predictably abused by Presidents of any party. What are and what are not matters of ‘national security’ are subjective, ideologically based ‘opinions’ deliberately cited to cover the substance of what are, in fact, meetings of a criminal conspiracy.

It’s time to call ‘executive privilege’ what it is: bullshit! American presidents have proven themselves undeserving of any privilege. American presidents should be assumed to be crooked. Americans presidents have a ‘burden of proof’ , a responsibility to the American people. Like Medieval Knights, they should be required to prove or demonstrate their worthiness. Of late, all of them have failed miserably.

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How the GOP Benefited and Continues to Benefit From Lincoln’s Assassination

January 9, 2008

The South had more to gain with a live Lincoln than a dead one. Lincoln’s “re-construction” built around an economic rehabilitation of the South. Typically, the GOP plan was punitive, harsh, and long. Northern, “radical Republicans” benefited from Lincoln’s murder. Disillusioned, embittered Southerners like John Wilkes Booth did not.

The “official” theory paints a vivid picture of Booth and his accomplices –disillusioned Southern racists out to wreak revenge on Lincoln. Booth had wanted to kidnap Lincoln and exchange him for Southern POWs but favored killing Lincoln when his original plan fell apart. But this theory forgets that Lincoln’s plan of reconstruction was more lenient toward Southern states. Northern, “Radical Republicans“, sought to punish the South and exact retribution, insisting upon stringent requirements for re-entry into the union. Clearly, a southern “patriot” had nothing to gain by murdering Lincoln.

Every mystery writer and criminologist will tell that you every crime has three elements: motive, method, and opportunity. Qui bono? addresses the issue of “motive”. Who but Northern Republicans benefited from Lincoln’s death? The South most certainly was much worse off for Lincoln’s murder and Booth most certainly would have known that. So –why would a “Southern Patriot” enter into a conspiracy which would undermine the Southern cause?

Like today, the Radical Republicans were “politically motivated”. A rapid return to congress of Southern anti-industrialists would have diluted GOP strength in the Congress, a fact motivating the length and severity of the GOP plan. Nor was the GOP interested in protecting Freedman’s Rights. As is true today, the GOP was primarily concerned with retaining its power in Congress and the economic power of its industrialist constituency. In retrospect, the GOP plan seems guaranteed to continue GOP control of Congress and, in fact, did so for the duration of a punitive “reconstruction”.

Secondly, the longer reconstruction plan would, in fact, allow the GOP the time it needed to consolidate its power. Most Republicans believed that Lincoln’s V.P., Andrew Johnson, would go along with their plans. They were disappointed and eventually impeached Johnson upon the flimsiest of cases.

It was when Johnson fired Secretary of War, Edwin Stanton that the GOP moved against him. Stanton had been Attorney General in the James Buchanan administration but Buchanan ignored Stanton’s advice that he act forcefully against the South; Stanton then became a spy for the GOP!

And it is Stanton who figures prominently in one of the most interesting and most recent of the Lincoln assassination conspiracy theories:

It alleged that Stanton was against Lincoln’s mild Reconstruction policies and wanted him out of office so more radical Re-constructionist policy could be employed. On the day of the assassination Ulysses S. Grant was expected to attend Our American Cousin with the Lincolns. Eisenschiml argued that had Grant attended, the military guards who protected him would never have allowed Booth to enter the State Box at Ford’s Theatre. Eisenschiml further argued that Grant’s refusal of the Lincolns’ theater invitation was due to an order by Stanton to change his plans for the evening.

–From a summary of Otto Eisenschiml’s Why Was Lincoln Murdered, 1937

Stanton and Grant most probably had “foreknowledge” that Lincoln would be murdered.

To be fair, some aspects of reconstruction have had good and lasting effect, specifically, the 13th and 14th Amendments. Neither would have come about had not the South endured the longer and often tragic consequences of reconstruction.

But as those developments might recommend the longer reconstruction period, a radicalized south would resort to “terrorist” methods to keep GOP office seekers out of office. The Ku Klux Klan’s program of racist, voter intimidation continued well into the 20th Century and, in some instances, continues to this day.

Resentment stemming from the Civil War and the Republican Party�s policy of Reconstruction kept Southern whites in the Democratic Party, but the Republicans could still compete in the Southern States with a coalition of blacks and highland whites. After the North agreed to withdraw federal troops under the Compromise of 1877, and the further failure of the “Force Bill” (to protect black voting) in 1890, Southern blacks, the base of Republicans’ power in that region, became increasingly disenfranchised. The white Democratic Party in the South enacted Jim Crow Laws and, through the terror of vigilantes and the Ku Klux Klan, undertook other measures to ensure and enforce black disenfranchisement. As blacks lost their vote, the Republican Party lost its ability to effectively compete.

—Wikipedia

Just recently, by historical standards, the two parties would flip. Again –this Machiavellian strategy, this “Southern Strategy, was of GOP origin. Though he must certainly regret it today, it was Kevin Phillips who urged it upon Richard Nixon.

From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don’t need any more than that… but Republicans would be shortsighted if they weakened enforcement of the Voting Rights Act. The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That’s where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats. –Kevin Phillips

A recent summary from The Nation.

Now Republicans were doing the unthinkable: convincing folks they were on their side. Up on a platform erected on the runway, two key architects of the GOP’s new Southern strategy, President Nixon and North Carolina’s own Jesse Helms, were railing against hippies and atheists and other un-American elements holding down the “silent majority” of white working folk. Mixing pietistic appeals for school prayer and nostalgia for “traditional American values,” they were mouthing a neopopulist pitch borrowed from George Wallace’s scarily successful 1968 backlash campaign and scripted by Kevin Phillips’s The Emerging Republican Majority.

And the blue-collar Democrats were eating it up, roaring approval at every racially coded “law and order” applause line and spitting epithets back and forth with antiwar protesters. All except for my father, who had glanced around forlornly when we arrived and seen a depressing array of crew cuts, work shirts with names on the patches and rebel-flag mesh caps. “Good grief,” he muttered. “Looks like a bunch of Democrats. What in the world?”

—The Way Down South, The Nation

Since the Civil War, a “robber baron” class, represented if not ably, crookedly by the GOP, industrialized the nation. This “class” did it by utilizing the apparatus and the method of the GOP –denying for decades the right of workers to organize. To this day, the rich get richer and everyone else is left behind. The enemies of science and intellectual progress have renewed their numerous assaults on learning itself. They wish to roll back the enlightenment.

The right wing has bet its future on a few cynical tactics –the big lie, character assassination, and wedge issues designed to divide and conquer. How the GOP became America’s radical reactionary party is a long and winding road. Nevertheless, I am less appalled than surprised to find in the US a level of hatefulness that we dared hope had been laid to rest on the battlefields of the Civil War.

When the Radical Republicans ruled the South, they were despised by the same demographic segments that now embrace the likes of George W. Bush. It was Democrats who had an interest in suppressing Negro suffrage. The Great Grandfathers of Bush’s most staunch southern supporters were most certainly Democrats at a time when the GOP was identified with and blamed for the horrors of reconstruction. Under Bush, the GOP now embarks upon new horrors —endless war abroad, dictatorship at home!

Not surprisingly, the sea change is best associated with the 1960’s. It was then that the GOP decided that there were more bigot votes down south than moderate votes elsewhere.

The GOP would battle Democrats for the low ground and win. Today –the likes of Mitt Romeny and Mike Huckabee scrimmage over less than 30 percent of the total population, a 30 percent that Carl Jung would have called “incipient psychotics”.

JFK was never forgiven for having put his own party on the right side of morality and history, for eschewing the old bigoted allies, for threatening a Texas sacred cow –the Oil Depletion Allowance. As he promised to smash the CIA into “a thousand pieces”, JFK came to embody the ideals of numerous “liberals” assassinated or otherwise dispatched mysteriously concurrent with the rise of the right wing, a crooked GOP specifically!

Certainly, this mentality has proven that it is capable of doing whatever it takes to gain power and keep it. Be prepared for more “surprises” enroute to the upcoming election. Fanatics do not go quietly into that good night and a party that has proven itself capable of both election theft and violence most certainly has more tricks up its sleeve. In a previous essay I had written that “…from the ashes of the ‘Old South’ rose a mean and prejudiced spirit”.

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To Hold Bush Accountable for Iraq, Democrats Should Listen to…Richard Nixon!

September 10, 2007

EXCELLENT CATCH FOLKS!!!!!!!!!!!!!!!!!!!!!!!!
http://www.buzzflash.com/articles/alerts/282
Click Lyndon Johnson Has Been a Failed War Leader and open it in a new tab or window or whatever, cuz it’s a fucking Flash file whatever and I can’t just gank the MP3 link GRRRR!
Or if you are a glutton for punishment, you can try this: http://www.buzzflash.com/articles/modules/audio/players/mp3.swf?song_url=http%3A%2F%2Fwww.buzzflash.com%2Farticles%2Faudio%2Fplay%2F3241&song_title=Lyndon%20Johnson%20Has%20Been%20a%20Failed%20War%20Leader

Artist: Richard Nixon
Title: Lyndon Johnson Has Been a Failed War Leader
Length: 1:04 minutes (501.47 KB)
Format: MP3 Mono 44kHz 64Kbps (CBR)

We were listening to the Thom Hartmann Show on Air America on Friday, September 7, and were blown away when he played this tape of Richard Nixon at the 1968 Republican Convention speaking about Lyndon Johnson’s failed Vietnam War.

It was a mind-boggling moment as we listened to the excerpt, because Nixon defined Johnson’s losing effort in the way that the Democrats should be doing with Bush.

Do the Democratic leaders on the Hill have anything to learn from Richard Nixon? We’d be the last to think so, until we heard this tape.

We asked Thom Hartmann to write us a note setting up the short clip:

“An unpopular president [Johnson] was prosecuting an unpopular war, which was despised by more than half the American people. His political opponent [Nixon, although Nixon actually ran against Humphrey, Johnson’s Vice-President] knew that the best way to take him down – and ultimately to take down his entire Party – was to simply say out loud what everybody knew to be true. To call out the President. To declare him and his war a failure. To call on the American people for truth and honesty in government, and an end to war. Here’s a quick clip composite, sent along to us by a listener (I’m sorry, I don’t remember whom) a year or so ago, of Richard Nixon at the 1968 Republican National Convention…”

— Thom Hartmann in an e-mail to BuzzFlash

You must take a listen to this Nixon 1968 GOP Convention statement on Johnson’s failure as a war leader. You simply must.

(Of course, Nixon lied about his “secret plan” to end the Vietnam War and expanded it into even more of a debacle, including precipitating the Khmer Rouge takeover of Cambodia as a result of Kissenger’s rogue bombing of that nation. But that’s another story.)

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Bush plays American people for fools, "treads dangerous waters"

March 30, 2007

Now that the Democrats have majorities in both houses, it may be too little too late. For that, we have a timid congress to blame. The GOP congress was eagerly complicit in Bush’s crimes while Democrats fear a frontal assault on Bush abuses. The Bush gang sees Congress as a rubber stamp, or worse.

Now Bush is intent upon ignoring the will of a very large majority of Americans by escalating a failed war, by repeating a failed strategy. Bush doesn’t care that an overwhelming majority of Americans across the spectrum oppose him on almost every issue. An independent Congress might have held a rogue President in check. The case of Richard Nixon is often cited. But even that tends to point up what might prove to be a fatal flaw in the American system of government. The US Constitution clearly states the powers of Congress in a time of war. But, when it counts most, where are the teeth?

Consider the case of Richard Nixon.

In the very early days of the Watergate Scandal, when it had not yet hit the front pages, Nixon was bombing Cambodia and lying to the American public about it.

Some writers have said that it was the Viet Nam war -until Iraq, the most controversial war the United States had ever conducted -which led ultimately to the collapse of the Nixon administration. By the time Nixon targeted Cambodia, the public had already soured on what looked like an endless war, George Orwell’s perpetual war. It is fair to say that Congress found in Watergate a way to check a rogue President.

How does Congress oversee a secret war? Nixon planned to destroy what was called Area 353. To do so, the Pentagon would send 60 B-52s to bomb so-called “legitimate” targets in South Vietnam. But most – 48 of them – would be secretly diverted to Cambodia upon a signal from the Joint Chiefs of Staff.

Nixon lied about about the bombing, he lied about Cambodia’s neutrality, he lied about “winding down the war”. In The Price of Power, Seymour M. Hersh confirmed that rather than checking Nixon’s rogue administrion, Congress, then as now, seemed all too compliant. No congressman wanted to be seen as “weak”. No congressman wanted to oppose plans to “… ferret out the Viet Cong headquarters” as Congress had been told of the “mission”.

Nixon committed atrocities in Cambodia and lied about them. Cambodia was a neutral nation that had not attacked the US and had not taken sides in Viet Nam’s internal conflict. Nevertheless, American and South Vietnamese troops together committed war crimes consisting of the destruction of villages and towns. It does not excuse Congress that Nixon lied to them and got away with it. It does not excuse Congress that no attempt was made at “oversight”. It does not excuse Congress that Presidents have become dictators.

Indeed, it is a pity that a fourth article of impeachment was rejected by a Congress that seemed willing, even in triumph, to subvert its charge and abrogate its duties under the US Constitution. The rejected fifth article of impeachment against Richard Nixon reads:

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, on and subsequent to March 17, 1969, authorized, ordered, and ratified the concealment from the Congress of false and misleading statements concerning the existence, scope and nature of American bombing operations in Cambodia in derogation of the power of the Congress to declare war, to make appropriations and to raise and support armies, and by such conduct warrants impeachment and trial and removal from office.

Article V, Articles of Impeachment against Richard M. Nixon

Bush is no Nixon. Less intelligent, he is more dangerous. Nixon had hoped to pacify Congress or, at least, distract it. The war in Viet Nam was said to have been “winding down” as combat roles were transferred to the “government” in South Vietnam, as Bush would love to do now in Iraq but cannot. Like Nixon before him, he will escalate the war; unlike Nixon and more like Hitler, he will do so in “…full view of the world”. ( the phrase …in full view of the world”. was used by Hitler to describe his persecution of Jews) For an unexpurgated history of Nixon’s war crime against Cambodia see: Lying for Empire: How to Commit War Crimes With A Straight Face by David Model.

To be fair, Viet Nam tainted every President since Eisenhower. To be fair, it is not only this Congress that has fallen down on the job. It is not only Republicans who actively conspire with war hawk executives. It is also Democrats who fear to be seen as weak.

It takes courage to oppose a tyrant. Until the Democrats in congress find the courage to oppose a rogue and tyrannical chief executive, the Iraq war will not “wind down” nor will the Iraqi people, blamed unfairly for Bush’s war crime against them, step up to pull Bush’s fat out of the fire.

It is easy to make analogies to Nixon but few are in as good a position to do so as John Dean, White House Counsel to Richard Nixon.