The Bush Administration, Hacking Away at the Twin Pillars of Our Democracy, II

This article is in two parts. Part one examined the Bush Administration's approach to one of the most basic structures of our democracy; the Constitution's check upon governmental powers, and its separation of powers and system of checks and balances upon which our government is based.

Consistent with an "interpretation" of the Constitution that seeks to grant the Executive whatever powers if feels it needs or wants, clandestinely ornot, the Bush administration has also clamped down on the flow and availability of information.

Inconsistent with free, open democracy, this obsession with secrecy was noted long before the recent revelations about clandestine programs in violation of the Constitution's separation of powers clauses, and preexisting law.

Yet this obsession does not just extend to matter of ostentisible "nationa security."

The Bush administration has sought to control what government climate change information is publicly shared -- as if the government of the people, by the people, and for the people, and which is employed solely by the people, and paid for by the people, has the right to keep climate information from the people.

The administration, according to some insiders, has even purposefully altered the accuracy of reports related to global climate change.

Even more bizarrely, according to a barely discussed Washington Post article:

The Washington office of the National Oceanic and Atmospheric Administration --
the agency responsible for protecting endangered salmon -- has instructed its representatives and scientists in the West to route media questions about salmon
back to headquarters. Only three people in the entire agency, all of them
political appointees, are now authorized to speak of salmon, according
to a NOAA employee who has been silenced on the fish (emphasis added).

The order was issued the day after an article appeared last month in The Washington Post quoting federal technocrats making positive statements about two
recent decisions -- one by a federal judge, the other by federal scientists -- that
challenged previous Bush administration policy.

One of the countless "Presidential signing statements" (examined in part one) -- once again somewhat singularly reported on by Charlie Savage of the Boston Globe -- rather arbitrarily, if not incredibly, declared that:
The president can tell

researchers to withhold any information from Congress if he decides its
disclosure could impair foreign relations, national security, or the
workings of the executive branch.

Of course, once again, "workings of the executive branch," essentially means, "if we choose to."

In other words, tying these two fundamental issues together - 1)The Constitution, and 2) information; that is, the foundation, and the lifeblood, of democracy, respectively -- Congress passed a law requiring that it have access to Scientific information (paid for by taxpayer dollars) when requested. And in response, the Executive Branch, in violation of Article I Section 1, and Article II, Section 3's requirement that the President "take Care that the Laws be faithfully executed" (which includes not breaking them), in essence dictated in response; "only if we want to."

Bill Moyers, back in 2005, again before we even knew of several of the administration's clandestine and apparently unconstitutional programs, put it this way:

It has to be said: there has been nothing in our time like the Bush
Administration's obsession with secrecy.

Senator Ted Kennedy, reputed liberal from Massachusetts, in the summer of 2005 -- once again before we even had an inkling about many of the items related above, including many of the more egregious "presidential signing statments" -- summarized some of the salient, factual points of this pattern in a reasonably non partisan speech on the floor of the Senate; a speech barely touched upon by the mainstream media.

In remarks prefacing the published speech itself, and in response to a proposed amendment to a bill last summer by Senators Levin, Reed, Rockefeller, and Kennedy to examine the administration's policy surrounding the detention and interrogation of detainees, Kennedy pointed out:

The President announced he would veto the Defense authorization bill, all $442
billion of it, if it included any provisions to restrict the Pentagon's treatment of detainees or creating a commission to investigate detainee operations. No other response could have demonstrated so clearly the urgent need to establish a commission than that this imperial White House considers itself immune from restraints by Congress on its powers no matter what the Constitution says.

...They even stooped to claiming a request for full accounting is somehow a smear against our troops. The real smear is that the administration continues to prosecute only a few low-level offenders without holding accountable the higher-ups who laid the groundwork for all the abuses. The real disservice to our troops and to our country is done by those who leave those at the bottom of the chain of command holding the bag while officials at the top are promoted and rewarded.

Some of the vastly underpublicized highlights of this speech are also well worth considering:

...In May 2001, Vice President Cheney's energy task force issued its report recommending more oil and gas drilling to solve our energy problems. In light of his former employment at Halliburton, the recommendation was hardly astonishing. What was astonishing was the Vice President's refusal to identify the people and groups who helped write the policy.

In June 2001, the GAO, the nonpartisan, investigative arm of Congress, requested information on the energy task force, following reports that campaign contributors had special access while the public was shut out. GAO's request was simple. It asked, ``Who serves on this task force; what information is being presented to the task force and by whom is it being given; and the costs involved in the gathering of the facts.'' Considering that the task force wrote the nation's energy policy, it was not an unreasonable request. The administration [simply] refused to comply [and to this day it is not clear that it has ever].

...Congress and the executive branch are supposed to be open and accountable, so the American people know what is being done in their name. But under the Bush administration, openness and accountability have been replaced by secrecy and evasion of responsibility. They abuse their power, conceal their actions from the American people, and refuse to hold officials acountable.

...Last year, a record 15.6 million documents were classified by the Bush administration at a cost of $7.2 billion, many under newly invented categories. The administration argues that all this secrecy is necessary to win the war on terrorism. But the 9/11 Commission Report said that too much government secrecy had hurt U.S. intelligence capability even before 9/11. ``Secrecy stifles oversight, accountability, and information sharing,'' says the report.

They know from their own experience. In July 2003, the 9/11 Commission's cochairmen, Thomas Kean and Lee Hamilton, complained publicly that the administration was [once again] failing to provide requested information. In October 2003, the Commission had no choice, after repeated requests, but to subpoena records from the FAA. In November 2003, after multiple requests, the Commission again had to subpoena information, this time from the Department of Defense.

For the rest of that fall and spring, the administration repeatedly tried to deny
access to presidential documents important to the Commission's investigation,
until public outcry grew loud enough to convince the administration otherwise.
Key members of the administration balked at testifying, until public opinion
again swayed their stance. And then, in an ironic twist, 28 pages of the 9/11
Commission Report itself was classified. So, is all this secrecy really
about protecting us from the terrorists? Or is it just to avoid accountability?

...Even Members of Congress have had to subpoena information in order to do their work. Last October, Congressmen Christopher Shays [R-CT]and Henry Waxman
[D-CA], the chairman and ranking Democrat on the House Government Reform
Subcommittee on National Security, Emerging Threats and International Relations,
asked for an audit of the Development Fund for Iraq. The copy they received had
over 400 items blacked out. They had so much difficulty obtaining an unredacted report from the Defense Department that they had to prepare a subpoena. Once they finally received an unredacted copy, guess what had been blacked out? More than $218 million in charges from Halliburton. So far, no one has been held accountable.

...There is also a pattern of withholding information from members of Congress on the administration's nominations. In 2003, Miguel Estrada was nominated for a Federal judgeship. We requested legal memoranda he wrote as Assistant Solicitor General, and we were repeatedly denied. In 2004, Alberto Gonzales was nominated to be Attorney General. We requested various memoranda he authorized on administration torture policy, and we were repeatedly denied.

Earlier this year, John Bolton was nominated to be Ambassador to the United Nations. We requested documents to determine if he acted appropriately in his
previous job, and we have been repeatedly denied. Instead of coming clean and providing the information to the Congress, we have been stonewalled. Our
questions have gone unanswered. And now, the President appears to be poised to
abuse his power further, rub salt in the wound, and send John Bolton to the United Nations anyway with a recess appointment of dubious constitutionality.
[Stonewalling is not a term reserved to democrats either. For example, this past spring right wing republican James Sensenbrenner, among others, accused the Bush Administration of also "stonewalling" regarding its clandestine NSA surveillance program.]

...In 2003, the Food and Drug Administration kept secret a report that children on antidepressants were twice as likely to be involved in suicide-related behavior. The FDA also prevented the author of the study--their expert on the issue--from presenting his findings to an FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist, said ``Evidence that they're suppressing a report like this is an outrage, given the public health and safety issues at stake . . . For the FDA to issue an ambiguous warning when they had unambiguous data like this is an outrage.''

In November 2003, the White House told the Appropriations Committees in both Houses of Congress that it would only respond to requests for information if they were signed by the committee chairman. In a time of one-party rule, this tactic made congressional oversight almost completely impossible. In April 2004, the ranking member of the Environment and Public Works Committee, Senator Jeffords, was forced to place holds on several EPA nominees after the administration refused to respond to twelve outstanding information requests, including information on air pollution.

...Yesterday, the Wall Street Journal disclosed yet another list of abuses in Iraq
reconstruction. Ten billion dollars of no-bid contracts were awarded; $89 million was doled out without contracts at all; $9 billion is unaccounted for, and may have been embezzled. An official fired for incompetence was still giving out millions of dollars in aid, weeks after his termination. A contractor was paid twice for the same job. A third of all U.S. vehicles that Halliburton was paid to manage are missing. It is a staggering display of incompetence and cover-up, so that no one will be held accountable. [Yet this past June, Senate republicans nevertheless voted against investigating waste and fraud in military spending.]

Kennedy's list, although it seems overwhelming, was by no means exhaustive. As just one further example, again insufficiently covered by most of the major media, consider the highly controversial, and costly, medicare prescription drug bill, bizarrely passed in the wee hours of the night late in late November, 2003:

The Bush Administration warned Rick Foster, its respected chief medicare actuary, to not share his actual cost estimates of the controversial program with Congress. These were cost estimates that were approximately a hundred and fifty billion dollars higher than Congress' presumed cost of the program. (And, as it turns out, even the non disclosed chief actuary's estimates were low, as a few years after the program's inception, net total cost projections have shot up by about two hundred billion more.)

Tom Scully, the medicare administrator at the time, incredibly labeled the sharing of such critical information with Congress prior to the vote as, "insubordination." Scully also had an email sent to his chief actuary stating that "the consequences of insubordination were extremely severe," which Foster took to mean his job itself. Various Sites attribute both the Wall Street Journal, and the NY Times with reporting that Scully also stated in conversation with health staff that "'If Rick Foster gives that to you, I'll fire him so fast his head will spin."

Since when has sharing the most basic, critical information with Congress, that Congress needs to know before it votes on a bill that was projected (unbeknownst to Congress) to cost over half a trillion dollars, "insubordination"? Apparently since the Bush Administration took office.

Now, in the latest move in a pattern, whether its global warming, salmon, any public information that the administration doesn't want to be bothered sharing, or doesn't want shared, or any information regarding what the government is doing, 10,000 EPA scientists have asked Congress to stop the Bush Administration from closing the agency's network of technical research libraries. Over 700 billion dollars for a medicare bill that largely benefited drug manufacturers, the administration's "base," but no 2 million dollars, about a third of a millionth less than the prescription drug bill's current projected costs, to keep information, the lifeblood of democracy, readily available even to the scientists who need it most.

According to project censored, a decidedly left leaning site, but in this instance critically accurate: "The Bush administration's move to eliminate open government" is the number one censored story of 2006. (And 2005, And 2004, and...)

The Bush Administration response to all of this? Once again, according to this recent article, to become even more secretive.

To be fair, this latest proclaimed push towards even greater secrecy was with respect to leaks. But leaks of what?

The administration, as noted in part I, has already exhibited a clear pattern of belief in its authority to ignore the law, transgress the Constitution, and act as the arbiter of both; thereby leaving the last possible check upon the executive branch's actions as the media and whistleblowers, to the extent any potentially unlawful activity is even revealed. But the administration wants to further crackdown on such leaks.

And, the administration not only wants to crack down further on leaks (even of arguably unconstitutional and illegal behavior), but potentially, and extraordinarily, even imprison journalists as a result, or certainly, as the recent excoriation of the NY Times serves, to frighten them.

As Glenn Greenwald writes:

It really is hard to imagine any measures which pose a greater and more direct danger to our freedoms than the issuance of threats like this by the administration against the press. If the President has the power to keep secret any information he wants simply by classifying it -- including information regarding illegal or otherwise improper actions he has taken -- then the President, by definition, has complete control over the flow of information which Americans receive about their Government.

As aptly noted in Unclaimed Territory, a Web blog started by Greenwald, constitutional scholar and author of the popular "How would a Patriot Act" (hint; not like the Bush administration):

"A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens ... Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence. " - Judge Richard Cardamone, explaining his decision to uphold the unconstitutionality of the Patriot Act's National Security letters provision.

"The government doesn't lightly relinquish the spoils of power seized under the pretexts of apocalypse. What the government grasps, the government seeks to keep and hold, and too many of its reformulated purposes fit too neatly with the Bush administration's wish to set itself above the law. Often when watching the official spokespeople address a television audience, I'm reminded of corporate lawyers talking to a crowd of recently bankrupted shareholders, and usually I'm left with the impression that they would like to put the entire country behind a one-way mirror that allows the government to see the people but prevents the people from seeing it." - Lewis Lapham, Gag Rule: On the Suppression of Dissent and the Stifling of Democracy.

Describing James Madison's belief that an absolutely essential condition for the American republic be that, "no man is allowed to be a judge in his own cause," Gary Wills writes, in Explaining America:

"No king, no legislature, no body at all should be put in a situation where interest has no overseer. The virtuous man will not want to be put in that situation. He welcomes the scrutiny of fair men. His virtue is not private, but public; on display, and asking to be tested."

Officials "derive their just powers from the consent of the governed," but the governed can not give that consent properly unless they are able to know what their governors are doing. In essence, the public is to be the ultimate judge of what actions are in the public interest, and to do this, they must know what those actions are. Our system of representational democracy is predicated on the notion that the public has knowledge of what its government is doing.

In America, under the Bush administration, largely accommodated by a relatively compliant and far right wing dominated Congress, we are starting to have exactly the opposite. Under the weak excuse of "protecting us" -- the same that has been used by governments throughout world history, whether intentionally or misguidedly ( it doesn't matter, as ultimately the effect is the same) to clamp down on the very basic fundamentals and principles required for vibrant democracy itself.

It may be acceptable for the Bush administration -- obviously possessive of a far different view of America and American principles than did our founding fathers, under our founding documents -- to try and make these arguments. But it is cowardly, for the American voter, even while we try to aggressively pursue democracy abroad, to undermine the fundamentals of a free democracy here at home by accepting them, without expressing our view through the legislative process and via the election of representatives to Congress who will see that the will of the American people is led by, and not subverted to, the will of the executive. (Even if the latter ostensibly does so with the very best of intentions, to which, unaccompanied in government by the appropriate checks and protections necessary for a full and functioning democracy, the road to hell, and to totalitarian societies both, are routinely paved.)

As Ben Franklin stated, in a paraphrased quote that simply can not be repeated often enough, "Those that would choose security over liberty deserve, and shall receive, neither."

But, Franklin's prophetic statement aside, it's not just about a perhaps unrecognized cowardly willingness to allow psychopathic terrorists to disrupt our basic values.

It's about the fundamental principles upon which this country was founded. And it's about the most fundamental principles of democracy, and the flow of information that serves as its life blood.

And its about flagrant violations of our Constitution, on several levels, in pursuit of the "defense of the realm," when the President is sworn in not to defend the realm, but to defend and protect, first and foremost, the Constitution of the United States.

We, as a nation, collectively, and under the leadership of the administration and future administrations, and through our will as expressed through our elected representatives, shall provide for the defense of the realm. The administration needs to focus on providing that leadership, and not on hiding its activities from the American people or in coming up with ever more clever tautological and rhetorical catch phrases in order to circumvent the very same Constitution that it has sworn to uphold.

America needs to be informed, despite an administration that seems to seek the opposite at every term. The media needs to do its job, and the American people need to respond resoundingly, at the polls in November, to send the vibrant message to the current administration, that, yes, American principles are alive and well in the land of the free and the home of the brave, the greatest nation on earth -- and the greatest nation on earth in no small part because of these very same principles.

The Bush Administration, Hacking Away at the Twin Pillars of Our Democracy

Because of its length, this is in two parts. Together they should be considered one piece. Part two will be printed tomorrow.

Part one covers the Bush Administration's approach to one of the most basic structures of our democracy; the Constitution's limitation upon the powers of government, and its separation of powers and system of checks and balances thereunder. Part two covers the Administration's approach to the lifeblood of democracy: Information.

Mark Follman, writing in Salon:

When it comes to protecting its secrets, the Bush administration has flexed
unilateral power to a degree never before seen in U.S. history. Since 2001, the administration has wielded the "state secrets" privilege as a wide-ranging weapon to snuff out legal challenges to its most Draconian tactics in the global war on terror. At stake are no less than bedrock American moral and legal principles. Bush lawyers have aimed to shoot down court cases involving the indefinite detention and brutal interrogation of prisoners, the covert transfer of terror suspects to foreign governments known to torture, and domestic surveillance prying into the lives of thousands of Americans.

And potentially into the lives of anyone. Without anyone, except the administration itself, being able to know.

But even more than the pace, what now matters is the potency of the tactic, says John Kroger, a professor at Lewis and Clark law school and a former federal posecutor. "We're seeing a radical departure in how state secrets is being invoked," he says. "We're talking about government actions affecting millions of Americans. We're facing major questions about constitutional law, and the Bush government is saying they can't be adjudicated at all. It's a huge shift in the landscape from how this doctrine has been used in the past."

This is at odds with the basic principle of separation of powers upon which our country was founded; And on top of that, "the Bush government is saying they can't be adjudicated at all."

As I noted here:

"The Executive Branch, having violated the separation of powers clauses of the Constitution, also apparently believes that in related cases, it is the sole arbiter as to whether or not it has. This, of course, as a practical matter would mean that there is none."

Just a decider. Unilaterally.

"The administration's reasoning is the same used to undertake related programs which violated the Constitution's system of checks and balances in the first place. The new, legally magical, 'get out of constitutional jail free card.' I.e., 'national security.'"

In the case, which seeks damages from AT&T Corp., the government is not a plaintiff. But, in intervening to invoke the fairly rare (until now) states secret "nuclear option" to have the case dismissed, the government is in essence arguing that the Constitutionality of its program can not even be challenged in the first place.

As the Attorney General argued in a legal filing in late May: "In cases such as this one, where the national security of the United States is implicated, it is well established that the executive branch is best positioned to judge the potential effects of disclosure of sensitive information on the nation's security."

In other words, if the issue is the constitutionality of the action itself, the system of checks and balances under the Constitution is effectively discarded. Under this circuitous reasoning, the executive branch can do whatever it wants under the auspices of national security (secretly, to boot, and, prosecute any whistleblowers or press members for reporting it), prevent any review if there is a difference of opinion, and prevent the rest of the country, even Congress, from knowing about it. And then, on top of all that, "rule" on the constitutionality itself of the actions, thus preventing any review.

As reported in the Boston Globe, by Charlie Savage, one of the few mainstream journalists in America paying much attention to the related issue of the President's use of "signing statements," to also get around the Article I and Article II separation of powers clauses under the Constitution:

After some lawmakers raised concerns that the Patriot Act may pose a threat to civil liberties, Congress added a series of new oversight provisions to it. The law requires the Justice Department to keep track of how the FBI is using its expanded powers to monitor suspects and seize papers during counterterrorism investigations. The law required the administration to give Congress that information by certain dates.

But after Bush signed the Patriot Act reauthorization on March 9, he issued a signing statement -- an official document in which a president lays out his understanding of the law -- asserting that he had the authority to withhold the information from Congress if he decided that disclosing it would interfere with foreign relations, national security, or executive branch operations (emphasis added).

The term "executive branch operations," in particular, is a catch all that almost literally means "as we so choose." More from Savage:

Two senior Democratic House members yesterday demanded that President Bush
withdraw his assertion that he can ignore portions of the USA Patriot Act calling on him to provide periodic reports to Congress on how new law-enforcement tactics ar being used.

We ask that the administration immediately rescind this statement and abide by the law," the lawmakers wrote. "Many members who supported the final law did so based upon the guarantee of additional reporting and oversight. The dministration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight." (emphasis also added)

Presidential signing statements are designed to clarify an interpretation of the law, not change the law. And not change the law into a form that it would not even have been passed by Congress in the first place. (Further examples of similar use of such "signing statements," are here.) But that is, nevertheless, exactly what the Administration has done.

If not a usurpation of Congress's powers under Article I, Section 1 of the Constitution, "All legislative Powers (emphasis added) herein granted shall be vested in a Congress of the United States," then what is?

Although the media appears loathe to assess it objectively, it is a flagrant usurpation of Congress's powers and duties under the Csonstitution. As is the administration's argument that it can clandestinely authorize national security programs in clear violation of existing law, including programs in express contradiction of a law that was amended, as in the case of FISA, after the September 11 attacks suggesting the very same need for heightened security.

And now the Bush administration -- through the rather circuitous invocation of the "states secrets" wildcard as briefly reference above -- also wants to be the ultimate arbiter on the related issue of constitutionality as well; That is, once gain, it would substitute first for the legislature, one of our three branches of government, and now seek to substitute for the judiciary as well, the third of our three branches of government.

The Administration is essentially arguing that it can write or create the law, even laws in violation of previously existing laws, and enforce the law secretly with little or no oversight (and seek to prosecute journalists who expose to the American people what its government may be doing without their knowledge, and without their representative consent). And then on top of that serve as the sole arbiter of the law as well.

Those are not the powers of an Executive under our Constitution, but of a monarch.

The Bush administration, rather Orwellian like, nevertheless claims that it is in fact operating "within the Constitution."

Given the actions that the administration has elected to undertake, this is its only real choice. Thus, it either does not believe in the Constitution, believes in it, but that it should not apply to itself (or to republican, or to far right wing republican administrations in general), or must believe that it actually is operating within the confines of the Constitution. Yet that argument, despite meager attention by the media, is both illogical, and inconsistent with the principles upon which this country was founded.

Glenn Greenwald aptly wrote:

The theory of the Executive unconstrained by law is completely repulsive to the
founding principles of the country, as well as to the promises made by the Founders in order to extract consent from a monarchy-fearing public to the creation of executive power vested in a single individual. The notion that all of that can be just whimsically tossed aside whenever the nation experiences external threats is as contrary to the country's founding principles as it is dangerous.

Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Yet that is exactly what the administration has done, and is what most of our current rather far right wing Congress has been relatively silent on. From this journal (also linked above):

Consider if the executive branch decided that anybody who disagreed with the administration's policies was not allowed to vote, because this might help vote out of office those who would "correctly apply the Constitution to fully protect us and our national security."

Or if it decided that the First Amendment's right to a free and independent press meant "one controlled by the government based upon national security concerns." Or if it decided in favor of the immediate incarceration of anybody who is of Middle Eastern ethnicity. Or, less logically, anybody who has red hair for that matter. Or any one of an infinite number of increasingly absurd propositions, wherein it would be patently obvious that this was unconstitutional.

All of these actions would clearly be considered "unconstitutional." Yet the exact reason that these actions would be unconstitutional is no different than the reason that the administration's current "seemingly more reasonable" activities in circumvention of the separation of powers clauses also violates the Constitution. While the particulars are all different, the underlying Constitutional principle is precisely the same:

The discretion to do "one thing" in the interest of "national security" is no more constitutionally valid, if it violates the separation of powers clauses, or some other clause of the Constitution, because it seems "reasonable" to some people, than the discretion to do "another thing" which seems to be patently unreasonable on its face.

The reason for the principle is simple, and it is one of the main distinguishing differences between an open, free representative democracy, and some form of Monarchy: It is not the role of the Executive, under the Constitution, to unilaterally decide what actions and laws to undertake (or break) for the good of the people, but is the role of the people, through their elected representatives - Congress - to decide.

Because the issue is "national security," the Administration has in essence argued that it has these "powers" under the Commander in Chief clause of Article II of the Constitution. But this assertion is extremely inconsistent with the logic of the Constitution itself, not to mention our more than 200 plus year history under it.

The Constitution conveys Congressional power with more specificity with respect to war than to the President, and, neither the Article I Section I grant of all legislative authority to Congress, nor the Article II, Section II designation of the President as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" state or imply any alteration in the basic separation of powers enumerated therein.

On top of that, such an interpretation otherwise would be illogical. It would render the most basic premise of the Constitution itself -- to establish a system of overlapping checks and balances, and a clear delineation of powers therein -- essentially null and void in all times of war or alleged war.

Thus, to make this argument that the Executive branch can unilaterally do what it believes to be right, despite pre existing law, in the interests of national security -- indicates a clear belief that the Constitution, in obvious contravention of our founding fathers intent, should have granted such unchecked powers. The "circuitous, highly rhetorical, and wrangled legal reasoning" employed is just simply a way to avoid the appearance of simply outright making the statement that the Constitution is wrong.

But the Constitution is not wrong, because it does not make sense, consistent with American principles of democracy, to grant the Executive essentially what would amount to the powers of a monarch, during any time of war, whether declared or undeclared by Congress -- let alone during a "time of war against terrorism," which may continue on in perpetuity. The President's charge is to defend the Constitution, and to take care that the Laws be properly executed under it.

Congress represents the people of the United States. In a democracy, the voters, through their duly elected representatives, have both the right, and the oblgibation to decide the content of laws that potentially impinge upon their own freedoms and liberty. Not the President.

As noted in a comprehensive report by the conservative Cato Institute:

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes:

A federal government empowered to regulate core political speech--and restrict it greatly when it counts the most: in the days before a federal election; a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror; a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror-- in other words, perhaps forever; and a federal government with the power to supervise virtually every aspect of American life.

From the Bush Administration's numerous "trust us" statements to the effect that we are doing this "very carefully," it would appear that the administration is acting under very narrowly defined applications of a doctrine that, nevertheless, grants the executive the power to essentially do whatever it wants. But aside from the apparent "good intentions" of the Executive, there is no way of knowing exactly how such actions, known or unknown, and either now, or in the future, are actually being applied, and used. This is the precise reason why the United States, and other free democracies, have never granted such unfettered power, and it is why our Constitution not only does not recognize it, but expressly prohibits it.

In other words, under our Constitution, and I would argue very rightly so, ours is not a government built upon the inherent protections of "good intentions." Ours is a government built upon the checks and balances and clear separation and delineation of powers that the document was purposefully written to establish in the first place.

Our system of checks and balances serves as part of the fundamental structure of our emocracy. The free flow of information, as with any well functioning democracy, serves as its life blood. Part II of this article, which covers the administration's approach to the governmental part of this lifeblood, and as noted at the outset, will follow as a separate piece.

The Essence of Fox

What the Fox channel says: "Fair and balanced."

What the Fox channel really means. "Every man has a perfect right to his opinion, so long as it agrees with ours."

From the Colbert Report, as noted by Editor and Publisher:

Superman, [Colbert] said, went so far as to hide his identity "by disguising himself as the farthest thing from a hero -- a newspaper reporter." He could have broken the story of his own identity at any time, won headlines and maybe a Pulitzer, but no, he wanted to save his friends Jimmy and Lois from the terror of Lex Luthor.

So Superman, Colbert added, courageously continued to be "a pretend journalist"-- with a title card on the screen next to Colbert commenting "like Brit Hume." [Of Fox]

Colbert is correct about Hume, and Fox. [Numerous cites, examples, links, at bottom.]

Fox's "news" channel is not a real news station. It covers non policy and politics news reasonably well, and on its main focus, policy and politics, it offers "other views' -- in order to masquerade as a news station -- that are often weak, distorted, misleading, or factually erroneous.

This case simply has to be made to mainstream America. It would be as if "Air America" radio decided to start a TV station, solely to promote its agenda and its views, and decided it would have a bigger impact if it offered some contrary views and pretended to be an actual news channel.

Fox as a news station has also had an underestimated effect on the debate in America. It is a large part of the problem. Not because of its views, but because it it pretends to be something it is not.

Nobody -- moderate republican (to the extent that exists anymore, as it is certainly getting wiped out in national politics), moderate democrat, independent, democrat or liberal, should go on that station. Nobody should refer to it as a news station. (Obviously, conservatives and the more dominant right wing conservatives will, because they don't see it that way. They see a station that reports politics and policy news in the manner in which they would like to see it presented, with just enough "balance" to actually fool them into thinking that they are covering all sides to the appropriate issues, accurately, and with the right emphasis and attention.)

Nor is this going down a "slippery slope." There is a difference between "bad news" stations (which most are) and a partisan right wing channel pretending to offer "balanced" news and analysis, in order to fool itself and America into believing it is something that it is not. But more importantly, the case needs to be repeatedly made, because that station is manipulating America. And more of America than many think.

In fact, a recent comprehensive poll found "the BBC, Fox News and Al Jazeera the most trusted brands in their respective home regions."

Rregardless of whether the poll is correct or incorrect, the channel is the most watched show "news" channel on cable, constantly referred to, and constantly cited, as a mainstream source of news. And through its impact both direct and indirect, it exerts a tremendous effect upon the nature of the debate in America today. To discount it's importance, merely because "everybody knows" (or, more accurately, "some people know"), that it is highly biased, is a huge mistake.

Keeping in mind that information is the lifeblood of democracy, here is a fairly amazing breakdown of the misperceptions of Fox viewers, versus those that watch other shows. Is this coincident to Fox's constant distortions? Or correlated?

Newshounds, albeit it has left plenty out, and sometimes inadvertently presents a slant of its own, nevertheless, with a limited budget, has done a fairly good job, and still has thousands of pages of evidence of Fox's distortions.

A few more examples of errors and patterns:

---A typical "mistake" distorting Democratic Senator Richard Durbin's remarks, made on Brit Hume's show, and never corrected.
---A Fox "analyst" spins, rather than reports, on the Jose Padilla case. Contrast this with the legal brief in favor of Padilla, filed by the conservative Cato Institute. The case briefly explained, and the Cato institute suggesting (correctly) that strongly conservative Judge J. Michael Luttig erred in rendering an extremely broad reading of a Congressional Statute -- the same Judge Luttig that the Fox "analyst" spun even further to appear more supportive of the administration.
---Brit Hume, rearranges Franklin Delano Roosevelt's words to tell viewers he said something completely different from what he actually said.
---Georgetown law professor David Cole illustrates first hand how the "No Spin Zone, behind the scene, and very purposefully, spun like crazy. Perfect for a campaign trying to present a point of view, yet the very anathema of responsible journalism itself.
---Before he ironically (or not so ironically) became administration press secretary, Fox host Tony Snow repeats decidedly erroneous information about a critical, and purposeful, governmental leak.
---The station presents "balanced" views on global warming, mainly by analysts with large industry ties or other subjective bias.
---Fox is the first to report a "news briefing" given in 2002 by Richard Clarke, largely contradicting Clarke's later claims after he was no longer associated with the administration. While it subsequently came to light (albeit not in this Fox article) that Clarke was charged with presenting the administration's viewpoint as his job, what was not presented was that when Clarke gave that briefing to reporters in 2002 they agreed not to use his name. This agreement was not only broken by Fox in airing this story, they also neglected to mention it. (Incidentally, almost everything Clarke said in that briefing was technically true, but much of it was highly misleading.)

An online editorial, technically overstated but not all that far off considering the role that Fox plays, reasons:

Relying on the Fox News Channel as your only source of news is like using MAD Magazine as a legitimate source of news. The Fox News Channel's reporting style is so biased and skewed that trying to obtain any real information from a news report is quite challenging. Fox News is a joke because it provides info-tainment rather than reality-based news coverage. Fox News Channel is a "news channel" in name only. The network is what L.A. Times Editor John S. Carroll calls "pseudojournalism."

Although TV news in general is sensationalist...Fox News is a modern day example of the "unreliable narrator." [It] places an acute spin in nearly every story it represents and in some cases presents untruths as truth.

Here's another brief list of examples regarding one of Fox's "journalists." Another example is here, with dozens of links to further, more egregious - if not sometimes factually or logically outrageous - examples.

The movie "Outfoxed," somewhat objectively, details how what Fox is doing, is very different from what it tells its audience it is doing.

From the Guardian, about the movie:

The title indicates the program's partisan approach. After watching Fox News at work for a while however, you wonder at how mild the title is.

For this is a scarifying expose of right-wing propagandists masquerading as news reporters, deliberately misleading the US (and world) public and waging a class war on behalf of corporate heavies. And determining Fox's policies and approach is the man at the top, the media moguls' media mogul, Rupert Murdoch.

The program is mainly concerned with revealing the ways Fox News distorts news, wages co-ordinated character assassination campaigns and basically presents "News"...devoid of responsibility or journalistic ethics.

Over 2 dozen memos by Fox news chief John Moody, regardless of what one thinks of the content, illustrate the clear intent to "push" an agenda, rather than report the news. Maureen Farell, writing in a rather discomforting piece back in 2004, aptly summarized a few:

"[Bush's] political courage and tactical cunning are worth noting in our reporting through the day," FOX News chief John Moody e-mailed staffers on June 3, 2003, in one of many instances where reporters were instructed to glowingly praise G.W. Bush as Fearless Leader Extraordinaire.

"The President goes to Charlotte to talk about job training. Buoyed by the 300K job figure last week, he can boast his policies are working," Moody wrote on April 4, 2004.

The Democratic presidential candidate, however, was not granted the same "fair and balanced" courtesy. Though Moody instructed FOX staffers give each candidate equal time, the pro-Bush/anti-Kerry bias was obvious. "John Kerry may wish he'd taken off his microphone before trashing the GOP," Moody e-mailed staffers on March 12, 2004. ". . . his coarse description of his opponents has cast a lurid glow over the campaign."

"Kerry, starting to feel the heat for his flip-flop voting record, is in West Virginia," Moody explained four days later. Etc.

Summing it all up, James Goldsborough aptly notes:

In 1996, Fox News was invented by an expatriate news mogul named Rupert Murdoch.

I'd seen what Murdoch did to the British newspapers he bought, moving them somewhere to the right of the queen, and saw what he did to The New York Post, which became a staunch Gingrich supporter.

But what would Murdoch do with a national U.S. cable news network? Eight years later, we have the answer: He has made Fox News the official Bush network, an extension of the White House press office.

Posing as a news station. And manipulating America in the process.

What Do Democrats Stand For?

"Ninety-eight percent of the adults in this country are decent, hard working Americans. It's the other lousy two percent that get all the publicity. But then -- we elected them." -Lily Tomlin.

Question: how do democrats respond to the increasing domination of national politics by the far right wing?

Answer: by replacing a necessary focus on effectively communicating what needs to be communicated, with the democrats' view of "pragmatism."

Unfortunately, however, this approach, as "pragmatically" appealing as it may be, allows the far right wing to continue to define the terms of the debate.

Two weeks ago the Senate - by one vote - defeated a proposed Amendment to the Constitution to allow Congress to prohibit U.S. flag desecration. On that same day, Several Senators, led by Richard Durbin (D-IL) (the bill's original sponsor) and Hillary Clinton,
co-sponsored legislation that would have instead by-passed such an amendment, and simply criminalized flag desecration "designed to incite."

According to a NY Times piece, interestingly entitled, "Senator Clinton and Liberals Split Over Flag Desecration," Clinton told the Senate:

"Fortunately, we have an opportunity to protect our flag in a bipartisan and constitutional way."

But as the U.S. Supreme Court correctly ruled, in Texas v.Johnson, 1989, it would not be a constitutional way.

Among the dissenters in the Texas case, was Justice Stevens, a so called "liberal." Among the majority was Justice Scalia, a noted right wing conservative. Justice Kennedy, a conservative, also joined the majority.

In other words, flag burning is not necessarily the "liberal" issue that the cited NY Times article, and some democrats, as discussed below, seem to want to counterproductively define it.

The argument of Justice Stevens, the liberal, in his dissent in the Texas case, is still relevant today:

The Court is therefore quite wrong in blandly asserting that respondent "was posecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values."Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint - or perhaps convey with a motion picture projector - his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power ofthe Government to prohibit his means of expression.

Justice Stevens is wrong here. The method chosen is part of the concept of "speech" itself, and should be protected unless that method infringes upon the rights of others. The two examples cited involve the desecration of ( or, in the case of the images on the Monument - the impedement of others' ability to view), a public good, and thus infringe upon just such a right; not just a"symbol" of that public good. To say that the public owns every "symbol" -- even if it is the flag -- of such a public good, and that this trumps an individual's right to own a copy of that symbol and thus express it in a manner of their choosing, is a far different matter than what Stevens here represents.

But does Senator Clinton really agree with Stevens, the liberal? Doubtful. What Senator Clinton wanted to do was probably "play politics," and pass a law which for the moment would have the same practical effect of an Amendment (at least until the Courts revisit the issue and rule otherwise), rather than take the far more draconian step of actually passing an Amendment and changing the Constitution. [It should also be noted, however, that as written, the Flag bill may have presented a different set of questions before the Court, since its authors apparently took tortured pains to make it pass constitutional muster by seemingly limiting the ever popular flag desecration, to the even more popular "flag desecration designed to incite."]

These considerations aside, passing a national law to criminalize the desecration of the flag is still far more radical than if the Supreme Court had refused to rule on the matter of a local jurisdiction's right to pass such a law in the first place. In other words, the threshold is far lower for the states, and local jurisdictions, who have greater rights to determine the laws under which they choose to live, than the federal government has to dictate. But that principle seems utterly lost upon both parties today.

Senator Richard Durbin (D-ILL) criticized the proposed Amendment, essentially stating that it was playing politics. But Durbin himself brought the flag burning criminalization bill to the floor. If that was not playing politics (and playing it poorly) what is?

According to the Time's article, while Durbin's proposed national flag "burning" law only received 36 votes, over half of the Senate Democrats supported it. Again, presumably as an alternative to the far more grave step of Amending the U.S. Constitution, and, apparently, as an alternative to otherwise simply explaining and sticking up for the fundamental principles involved.

The Times' article goes on to note:

The divergent views of [this] position reflect a broader rift in the Democratic Party over whether the key to electoral success rests in winning over centrists or by drawing clear distinctions with Republicans by staking out unapologetically liberal positions.

Perhaps that is the way that democrats see it. If true, this is a big part of their problem. Because it is not the way that it is. It is the way that the far right has framed it, and that democrats are now, incorrectly, playing right into. In this regard, they have perahps achieved the dual accomplishment of being wrong both on the policy, and on the politics.

What's politically pragmatic isn't always what's pleasing to the left," said Steve McMahon, a Democratic consultant. "But pragmatism is what wins elections for Democrats."

Effectively making and conveying one's case to a cross section of America better than the other side (which, versus the far right, by having the facts on their side, democrats already have had an enormous advantage the past several years) wins elections. Not "pragmatism." If by pragmatism, McMahon means "effective strategy" -- though these two terms are very different --this statement is more applicable.

But "effective strategy" here would be to start illustrating how the far right wing doesn't understand the principles upon which America was founded, and why these principles matter. And that it is now playing more games with the flag, and more games of rhetoric. And that it probably intends to (this line is a set up in advance, to turn it into an advantage when they do engage in it), as yet another way to run from both the issues and its record, in November.

Additionally, illustrating a tendency that is very prevalant among democrats, and not as prevalent among republicans, McMahon did not really help to communicate any message that the democrats need to communicate.

Press coverage of actual quotes is extremely limited as it is. Why waste such a critical opportunity to convey, reconvey, explain or recite a critical message or fact? Telling the press, for reiteration to the public, that "pragmatism" wins democrats elections, doesn't help win democrats elections. In the meantimes, democrats often wonder why the far right's talking points seem to always sink in, regardless of fact. Two reasons. 1) They effectively communicate them, and 2) they do so constantly, taking every opportunity to reiterate and supplement them.

Ironically, the NY Times also notes that John Kerry voted in favor of the proposed law as well, again, suggesting that it was out of pragmatism. Yet what a group of pragmatists those democrats are, as the Constitution of the United States gets flouted by the same right wing that wants to wrap itself in the flag that stands for its principles, this message is also barely being effectively conveyed. Even the Senator, apart from Russ Feingold, who has been leading the charge against the administration, is a conservative (Arlen Specter). (On top of that, Specter has been repeatedly and counterproductively attacked by liberals for where he is wrong, 1)instead of being supported and encouraged where he is correct, and 2) instead of taking that same energy and directing it towards the democrats in the Senate who have barely even raised the issue.)

Regarding Senator Kerry, the Times states:

Senator John Kerry, Democrat of Massachusetts and a former presidential nominee, voted for the measure, which closely resembled past efforts to pre-empt an amendment to the Constitution. Democrats who voted for the measure in effect bought themselves the right to claim that they had voted against flag desecration, potentially inoculating themselves against possible charges of lacking patriotism in a general election campaign.

The inherent and insulting suggestion of what patriotism is aside -- yet note that the more it's played into, the more weight it will carry -- this suggestion by the Times is rather ironic. Kerry was unfairly characterized as a wishy washy flip flopper with respect to the Iraq war - and I have repeatedly suggested this. But he did make it easy for the far right wing and the media to do. So is the "pragmatism" playbook here for democrats to be able to say, if their opponents don't beat them to it: "First I voted for flag burning before I voted against it"? Regardless, and more importantly, if democrats continue to implicity allow patriotism (along with almost everything else) to be defined by the far right wing, it certainly will be.

To be fair, the strategic assessment offered in the quote above was rendered by the article's author, Anne E. Kornblut, but it is not that far from Senator Clinton's proposition that passing a national flag desecration law would "protect" the flag in a constitutional way, and the fact that many Senators, who surely at least understand the ideas enunciated above and here, nevertheless voted for it.

But more importantly, whatever the thinking, it is clear that the larger principles are, once again, being ignored. Let alone a critical opportunity to convey them, as well as expose the game playing, or worse, that the far right is once again engaging in.

As noted here:

FOURTEEN democrats (and all but 3) republicans voted FOR this amendment, which fell just one vote short of being eligible for state ratification.

THAT IS HOW OUT OF TOUCH OUR CURRENT (largely far right wing) CONGRESS IS WITH THE VALUES AND PRINCIPLES that make America, America.

Hitler outlawed flag burning in the 30's as one of his first acts. In Tiannamen square, protestors burning the Chinese flag were imprisoned for years.

Not sure if it is the complete list, but other countries that outlaw burning their flag today are Iran and Cuba. Hmm, we're in pretty good company on this one, huh...

For the record, I think that burning the flag is pretty idiotic. But that's not the point.

The point is:

A country that needs to criminalize the desecration of the "symbol" of the very freedoms for which it stands, is losing its grip on those very same freedoms, or doesn't understand what they mean in the first place (which is ultimately going to mean the same thing).

The text of the so called "Flag Protection Act of 2006" also appears to be an act of political grandstanding. It states therein:

"The purpose of this section is to provide the maximum protection against the use of the flag of the United States to promote violence while respecting the liberties that it symbolizes."

Did Stephen Colbert write this line? Yes, flag burning to incite violence is a big problem in the U.S. Right ahead of global warming. And UFO citings in Nevada.

The proposed bill also stated:

Abuse of the flag of the United States causes more than pain and distress to the overwhelming majority of the American people and may amount to fighting words or a direct threat to the physical and emotional well-being of individuals at whom the threat is targeted.

If people in America are getting more than pained and distressed over the idea that some misguided idiot somewhere may be desecrating a flag (rare as that actually is) in symbolic or defiant protest, but aren't at the fact that basic principles of government upon which this country was founded, and upon which democracy thrives, are being routinely disregarded, then, Houston, "we have a problem."

It sure is not going to be solved by passing yet another law in conflict with the values upon which this country was founded, let alone, ironically, one to "protect" the symbol of those very same principles in favor of upholding the actual principles themselves. Because then all we do is weaken what America stands for even further: That symbol derives its strength not because we as a group have to manufacture conformity to the beliefs for which it stands, but, precisely, because, we do not.

And democrats can not explain this to America?

the Far Right's View of Power is Far Wrong

Attorney General Alberto Gonzales, regarding Hamden:

What this decision has done is, it's hampered our ability to move forward with a tool which we had hoped would be available to the president of the United States in dealing with terrorists... We are currently evaluating the writings of the Supreme Court... and we are going to be working closely with Congress to look at legislation.

What the decision did -- this coming from a right wing Supreme Court, that if anything has been extremely accodomating to the administration and right wing policies -- as CNN explains it, is rule that the government "must adopt a military system for trying suspected terrorists consistent with international standards," as established by the Geneva Conventions.

In other words, the administration -- which had sought the power to designate anyone as a terror suspect, and then hold them, under a standard and duration of its own choosing, without any of the rights afforded citizens of the U.S. under our Constitution and laws of due process, or any of the rights afforded under International Standards (which would grant it the powers of a monarchy in this regard since there would be no protections with respect to who was so designated, whether correctly or incorrectly) -- now, wants to circumvent the clear purpose of the Constitution in establishing a check upon too much power, and grant itself such unfettered powers anyway.

It is quite remarkable. Not so much that the administration is doing this. (It is the nature of mankind. It is why democracies fail, and why there are so many ultimately repressive regimes -- almost all founded upon the ideals of "good intentions" -- and why our Constitution was written in the first place). But that there is so little recognition of it.

It represents a loss of recognition of the principles upon which this country was founded, and why they matter. Accompanied by very poor coverage of these issues in the first place, which helps to enable this loss of recognition. (And, I would also suggest, a failure on the part of our many other prominent pundits, leaders, statesmen, and political strategists, to focus on making the proper points.)

As this article (also linked in the Post below) notes, with a few brief comments inserted:

"There is now a widespread tendency to argue that one can only defend democracy by [what amount to] totalitarian methods ... These people don't see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you. Make a habit of imprisoning Fascists [or "designated terrorists" ] without trial, and perhaps the process won't stop at Fascists." - George Orwell, The Freedom of the Press

The strength and importance of How Would A Patriot Act? as a polemic is that it lays out a clear and easy to follow case that the Bush administration, acting on radical legal theory developed by John Yoo, has claimed for itself unlimited executive power to prosecute an indefinite "war on terror."[Glenn Greenwald] develops this central premise by going through various administration scandals - the use of torture, imprisonment of US citizens without due process, NSA domestic surveillance in violation of the law, etc - and relating how they follow logically from John Yoo's belief that nothing, not Congress, nor the Courts, can limit the president's power to act in the name of national security.

On Greenwald's site are a few a links to reviews of his book, referenced in the first quote above. Almost all of them call Greenwald a "left wing" blogger, or, without qualification, allude to the fact that it is considered a "liberal" book. But Greenwald is not left wing (nor is the author of this site). And it is not a liberal book.

Yet this misperception of someone who argues in favor of upholding the most basic structure of our Constitution and processes of government established thererunder, as we have almost without controversy for over 200 years, is a reflection of the pervasive pattern of mischaracterization by the far right; a pattern that has shifted the debate far to the right, and helped shift the makeup of our current national political leaders, even farther to the right.

Perhaps the leading conservative think tank in America (not far right think tank -- that might be the Heritage Foundation), essentially makes similar fundamental points as Greenwald.

The American Conservative, as far back as 2003, also made similar arguments at least with respect to the concept of expanded federal power, even before knowledge of the current and far more egregious Constitutional transgressions at issue.

As Republican Representative Heather A. Wilson (R-NM) puts it:

The duties of the Congress and the President under the Constitution are different.

The President is the commander in chief of the armed forces. He executes the laws, administers programs and conducts our foreign affairs.

The Congress makes the laws. We oversee their implementation and authorize the creation of agencies, departments and programs. We regulate the armed forces, and appropriate the money.

This system of divided power with checks and balances is derived from our Constitution, but woven into our civic life and it has done exactly what our founding fathers intended it to do: it has kept us free.

The men who wrote our Constitution were quite familiar with armed conflict. Even in time of war, they feared a strong executive with a standing army that might erode the precious liberties that they had risked everything to secure. Our Constitution with divided powers operates in war and in peace.

When the Congress authorizes the President to used force against an enemy, we are not relinquishing our powers under the Constitution, we are exercising them.

Greenwald also made a similar point last December, one day after the NSA surveillance program was disclosed:

It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the resident could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Yet the veil that the far right has somehow pulled over the American Public's eyes, and that the media has largely gone along with, is that these views are somehow "left wing." It is not reality. When a free democracy starts ever so slightly to lose its grip on democracy, and what democracy means, the first thing that does is political reality. Left wing?:

Representative C.L. Otter (R-ID), Assistant Majority Whip, stated: "The Founders envisioned a nation where people's privacy was respected and the government's business was open. These actions turn that vision on its head."

Senator John McCain (R-AZ), mincing words when asked if the Executive Branch had the legal authority to engage in the (still ongoing) program, "you know, I don't think so."

Senator Chuck Hagel (R-NE) stated that; "no president can dismiss a law. We need wiretaps, but there is a right way and a wrong way to do that.

Senator Olympia Snowe (R-ME), along with Hagel, were signatories to a letter stating: "We write to express our profound concern about recent revelations that the United States Government may have engaged in domestic electronic surveillance without appropriate legal authority."

Senator Lindsey Graham (R-NC) "If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don't know of any legal basis to go around that."

Senator Arlen Specter (R-PA), "where is the outrage?" Several days later, Specter stated that his own party, "needs somebody to stand up to the President."

Former U.S Attorney and Congressman, and noted conservative, Bob Barr:

Of course, I found no such authority, because none exists. Such was never even presumed to be implied by the drafters of that magnificent document.

Yet, this is precisely the power the president is now claiming. Truly, it is a breathtaking assertion of presidential power. If, in fact, the country allows it to stand, then there will be virtually no limit to the areas into which it might extend. Remember, the president claims that the venue of the so-called "war" against terror is as much within our borders as outside, and its duration perpetual.

The current extreme right view of power asserted by the administration, supported via various legal and logical contortions by occasional extreme Bush apologists and far right wing blogs, is nevertheless duly reported on by a henpecked media as if it is really is a legitimate "controversy" -- fearful, heaven forbid, of ever appearing "biased" to a public that doesn't know the facts, and can't know the facts unless they are reported correctly by the media in the first place.

But as the first quote mentioned above aptly notes, the adminstration's sseemingly anti-Constituitional assertions stem directly from the theories of Berkeley Professor John Yoo. But Yoo's theories are radical, and they are wrong:

To disregard [the Constitution's basic separation of powers premise] in time of "war," as Professor John Yoo of Berkeley....argues in favor of the President's right to do whatever he wants as Commander in Chief...is tantamount to arguing that the Constitutionion itself does not apply in any alleged Time of war.

Aside from the fact that; 1) the Constitution conveys Congressional power with more specificity with respect to war than to the President,and 2) the fact that neither the Article I Section I grant of all legislative authority to Congress, nor the Article II, Section II designation of the President as, quote,"Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States," neither state nor imply anyalteration in the basic separation of powers enumerated therein - such an interpretation is also illogical:

It would render the most basic premise of the Constitution itself -- to establish a system of overlapping checks and balances, and a clear delineation of powers therein -- completely null and void in all times of war or alleged war.

Yet this precise view, essentially, has been repeatedly presented as mainstream, and reasonable.