It All Comes Down To Checks And Balances, Not Separation Of Powers

The most important thing we learn hearing that the Boy King disregarded the legal advice of OLC and the AG, together with DoD’s General Counsel isn’t the outcome. Presidents always make the call for the Executive Branch. Rather, it’s how the Administration got there. The informality raises questions for the future.

It’s The How, Not The What

The specific issue is how to interpret “hostilities” in Section 5(b) of the War Powers Resolution. If the U.S. is deemed engaged in hostilities in Libya, that conclusion triggers termination events. People say they’re for an “expansive” definition of hostilities to end operations or a “narrow” one if they’re for the current situation. Put that aside.

Let’s turn to how the Administration made its decision. Usually, when a legal analysis of this magnitude confronts the Executive Branch, OLC serves as coordinator. OLC will typically reach out to affected agencies and departments. Then OLC renders a written formal opinion (even if third-tier law school junk retroactively withdrawn per last Administration).

Here the White House actively avoided that formal structure (and remove from the issue at hand, even if it’s more appearance than fact). Instead, the Administration specifically asked OLC initially only to provide informal advice. Meanwhile, the WH itself solicited legal opinions from around government. Apparently there were a few meetings and some phone calls. That’s it. Then the WH asked for submission of rival analysis. The politics are clear. Amorphous, informal = maximum control. It’s the Diet Coke of Donilon’s exhaustive whirlybird thing-a-jig.

Big problem. Such unstructured process is not a system that can support first rate legal decision-making. Even more than ‘policy’, law is dependent on structure, integration, coherence.
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Surveillance Explodes – Winning The Future At Home, Too

By every available measure, the level of domestic intelligence surveillance activity in 2010 increased from the year before, according to a new Justice Department report to Congress on the Foreign Intelligence Surveillance Act. And doesn’t even include the significant spike in activities like the Bureau’s use of national security letters, which jumped to 24,287, pertaining to 14,212 different U.S. persons.

Thank goodness we got change we can believe in. Go team.

Jonathan Chait And Battered Pundit Syndrome

Seeking perhaps to maximize page views and SEO optimization (the boy’s gotta eat), Jonathan Chait goes contrarian and affirms the Boy King’s Rooseveltian greatness. He condescendingly diagnoses the ignorance of Obama’s critics thusly:

Part of the reason for liberal dismay in [sic] an ahistorical understanding of how progress works. In the liberal memory, political success is bathed in golden-hued triumph. In reality, it is a grubby, stop-and-start process that looks pretty ugly up close . . .

A second reason for liberal despair is the cult of the presidency. Few people follow the arcana of Congressional debate. They attribute all political outcomes to the president, and thus when the outcome is unsatisfactory, the reason must be a failure of presidential willpower.

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‘The Left’ [sic], Tennis Courts And Why They Deserve To Lose — Part 32

Sandy Levinson continues to pine for a Constitutional Convention to fix our ‘broken system.’ He notes he’s just affirming his long standing position, one we’ve discussed at length here as well. It’s unfortunate he cuddles up to David Brook’s hush puppy bleat to join him on the Tennis Courts.

Levinson, whom we’ve respected for 20 plus years, is in some ways another, much smarter, Larry Wilkerson – both consumed with process. Recall Wilkerson’s pathetic arguments after his firing in 2005 (not before, mind you) that amending the 1947 National Security Act would halt future Cheneys/Addingtons/Scooters/Rumsfelds/Feiths/etc. from by-passing the orderly flow of paper work and inter-departmental consultation. Who knew Addington would have been halted in his tracks with just one more statute to ignore?

Utter idiotic claptrap and nonsense, of course. We here together for years understood the essence of the Warlord’s regime: *the law didn’t matter*. Even adding 1,000 more pages to the U.S. Code? Meaningless. Note that our disdain for Wilkerson is not limited to this website. We’ve said this to his face and exposed his ignorance at fora. He continues to shine at his full 15 watt potential.

Similarly, the much brighter Levinson, so-so Larry Sabato and now Brooks claim process will fix an obviously broken government. Once again, Levinson adopted the external political science approach rather than an internal legal one.

Summon Les Estates-General

Levinson acknowledges concern about calling the Estates-General in today’s polarized political environment. But not enough. Like Wilkerson, Levinson fails to understand true political radical reality (we say this with kindness, he is an accomplished professor, not political operative). If Levinson ever worked on the Hill for a period of time and participated in electoral processes, he would see that the U.S. government is not paralyzed *because* of a flawed Constitution but in *spite* of it. More clever drafting of Constitution 2.0 (with a Bill of Tweets? Lord help us) will not address our underlying problem – the societal collapse of ‘virtue’ (per Douglas Adair), belief in republican liberal democracy or even ward room Dahl-esque pluralistic politics.

Assume one could re-write the Constitution along the lines Levinson suggests. Assume again Christian Socialist Authoritarian efforts to hijack the country’s DNA are rebuffed. Still, only deck chairs are moved. No piece of paper can mandate responsible outcomes. The fragmented Movement merely will game the new framework. 10 years? 5? 20? Eventually we will be back here. Efforts to seek better outcomes merely by changing the Constitution are akin to a substance abuser who moves to a new city thinking everything will be different.

Mrs. Powell: Mr. Majority Leader, What Have We Got, Obama-Care Or A Birth Certificate?
Mr. Armey: Tax Cuts, If You Can Keep Them!

A liberal democratic republic will exist only when its people and representatives subscribe to those underlying ideals and notions. The Left [sic], progressives and decimated moderate Republicans allowed them to die largely undefended. Even in 2010 they collectively still don’t really understand what they are up against. Our government fails because its institutions have lost self-identity, something we predicted would happen under the Counter Enlightenment ideological government of 2001-2008. They can operate – even with people like Shelby and the filibuster problem – if collective institutional memory and will exist. Both don’t. More importantly, the American people must step up. A Constitution 2.0 will be meaningless without that fundamental change at the societal level. Changing the rules merely shifts how the Movement’s nihilist game plays out. The same conditions that would enable Constitution 2.0 to function also render it moot.

That’s the hard truth the ‘Left [sic]’ is only now recognizing. (We here have all been discussing this for 6 years now). A substantial portion of the American people don’t believe in or want liberal democracy. They will play along to gain power but reject investment in the system should they lose. Once the Movement tasted unfetted power 2001-2008 it refuses to go back on a Ken Duberstein-esque leash. No Constitution 2.0 can accommodate that. It’s the anti-Bruce Ackerman ‘High Constitutional Moment.’ No liberal democracy can function so without descending to Weimar feebleness, contempt and vulnerability to a Man on a White Horse.

Levinson perhaps can visit CPAC. He can watch Tea Partiers on cable. Superficial tourism – like suggesting someone can conduct a real federal trial based on watching CSI. Until he, Sabato et al. are immersed in the Movement at the actual granular level, none of them can understand how irresponsible it is to urge everyone onto the Tennis Court. The question is who plays Danton.

Republics are finite. History tells us that. We are way past America’s ‘Machiavellian Moment’ – Pocock’s examination of how a Republic confronts a crisis of ideals and self-awareness. Sandy, before you open up the Constitution on the Tennis Court, think twice about stepping through that dark doorway. None of us have any idea what will emerge.

A precondition to any successful Constitutional Convention? Advocates of Constitution 2.0 first must make every concerted effort to remind the American people of their inheritance. What is it to be a liberal democratic republic? Do people want a republic as much if not more than those determined to tear it down? A republic is not $19.95 DVD players from Shanghai, tax cuts or sectarian/authoritarian cults. Franky, we don’t think the Academy and others are up to the job. If they were, we wouldn’t be in this mess in the first place.

All In All Just Another Brick In The Wall

One of the most annoying aspects of contemporary Western scholarship of the 1920s and 1930s is the almost uniform judgmentalism (usually from Brits, but not always). They seek some peculiar German explanation for what happened — to the society and leader. Almost uniformly, the question is presented as ‘how could such a civilized people allow themselves to be governed (enthusiastically) by such criminals?’ (Let’s skip Daniel Goldhagen’s ‘special pleading’ for a moment, as well as Irving’s post “Hitler’s War” declamations).

For the 1938-45 era, scholariship, particularly by the Brits, place emphasis on the Corporal as a one man freak show, making poor decisions, irrational, etc. Richard Harris and Ian Kershaw are two exemplars; the latter’s overly “well received” drum and trumpets books singularly unhelpful to understanding events in our opinion.

Relax, Dear Reader. We won’t impose a tawdry Thanksgiving historical analogy directly. Too much egg nog awaits on the horizon to unveil that one now.

We simply note that the rollback in American civil liberties here at home is remarkable given the limited (but still painful) loss of two iconic sky scrapers and one unremarkable Pentagon wing. We lost no millions dead. No great war. No foreign power occupies Silicon Valley. One can still get a SUV without wheelbarrows full of billions of dollars. But just under 4,000 dead Americans.

The rest has been rhetoric — and rhetoric not from particularly compelling public speakers. Even just the other day John Bolton was biting the head off of some ineffectual Ivy League professor on Tweety’s show balefully intoning about Iranian nuclear bombs going off in America. Pure brute force. Makes one wonder what *ANY* peoples would have done in the circumstances 1918-1932.

Illegal Wiretapping And The Chekisty

A sideshow in any event. The Stiftung has argued since day one that the Movement’s various strands agree on one thing — the importance of domestic transformation and radicalization. Either here or at STSOZ 1.0 we have tried to explain long before people knew who Addington was in the blogosphere what the objective was: an American Counter-Intelligence State. Even after November 2006, little has changed. We still lay down more foundation for their modern day CI State. Despite Iraq, here the Neocons must count a major victory. In that way, Neocons parallel Lenin — who after losing out to the majority (and ingeniously calling them the minority (‘Menshiviks’)) — Lenin’s entire effort and the CSPU’s from that day until December 25, 1991 was about maintaining counter-intelligence. Government existed, but largely as a facade.

Rule of Law is incompatible with a CI State. When Addington et al. argue for Executive lattitude it isn’t just pushing aside FISA or even foreign aid disbursements or about obtaining “King-like” powers. It looks like all those things and more, naturally. And King-like powers or the ‘unitary executive’ would be welcome (as long as under their control or a disciple’s). Formless authoritarianism offers something more precious — total narrative control. Narratives rise, fall, shift, twist and disappear over night. *That’s* Darkness at Noon. Formless power and discipline are the ultimate Who Whom of the imagination — and political existence.

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It’s not like all our ills can be blamed on the Warlord and his crowd. The erosion began earlier during the CALEA debates in the 1990s (Communications Assistance for Law Enforcement Act). One largely had to assume the that Permanent National Security State (PNSS) won in its bid to suborn courts and law to its Will, justified by shamanistic invocations of national security. The real overt encroachment started with the Clipper Chip under Bush 41. CALEA followed under Reno, too.

So now the PNSS seeks, in addition to knowing who your five are without a warrant, and their fives, and so into infinite regression of unintelligibility, where you are; they now ping your cell phone like a GPS without court supervision. It’s a capability that’s always been there — that’s how emergency 911 works, after all — triangulating among cell towers, etc. Little you can do about it, too. Even when you turn your phone off, it still checks in with the network. Depending on device and software, even when off it will download email, etc.

If you feel that The Man is on to you, you do have some options: (a) pull the battery out; (b) put the entire phone in a tin box sufficient to block the network; (c) FedEx the fully charged phone 180 degrees from where you are going, drop your car off (which may be compromised by GPS tracking), rent a wreck (get in a cab) and do your business; or (d) smile and grin at the change all around, just like yesterday.

We’re not big fans of Kerr over at now-to-be-Virginia-based ODNI. (DIA is happy, they get their old new HQ back at the air force base. But the commute from the Maryland siders to the Herndon “secret” location is going to be one hell of a bitch. So their psychic misery and dependence on bad books on CD is at least some compensation). But we digress. Where were we? Oh, yes. Kerr. He at least had the honesty to spit the truth in everyone’s face testifying before the Senate. His paraphrase: “[Screw you], you don’t have and never will have privacy anymore, the PNSS has erased the 4th Amendment. You only do what we tell you and THIS is your future.”

One step to our future. What will our future American Chekisty look like? Well, unless a nuclear bomb goes off in the Mall of America, pretty much like they do now. A little more self righteous. A little more smug. We doubt they will wear the leather stuff. PETA would be an unnecessary distraction and the subliminal sexual aura antithetical to all repressed psyches involved. Some of the more distasteful stuff even may be subcontracted out or run from other Departments, like CIFA, etc. (On the other hand, if a real — or staged/permitted attack — occurs, they then might go for the more “sci fi” dyspotian garb — they’ve seen THAT on TV already, and they all know deep down it looks wicked cool).

Can such a future be avoided? (Especially the one with bad sci-fi costumes?).

Nothing is set in stone, but it will require Will and Action. Both. Either alone will fail. Who among the Democrat candidates understands the scale of roll back required? Conceptually? The actual people that must be purged. Who can identify and the train over the course of years trustworthy cadres to restore the Constitution? The Democrats will require some of their counter intelligence to avoid penetration as well. Do they know how to set that up? The scale is sobering. We are not talking about just 2 new Justices, or coming up with 5 Appellate nominees. The new Administration must make it a senior priority to reach down into the bowels of DoJ, into the corners of ODNI, NSA, OSD, etc. from the clerks to the top — and pull out the innards. Purge.

In the absence of a purge, should a Democratic Administration come to terms with the encroaching and gloating Permanent National Security State? The frog gets used to another 10 degrees or so. A poorly executed purge that is beaten back by the Movement peddled as anti-American? Fodder for 2012 Restoration. Threading a needle, indeed.

Pathetic Beyond The Telling Of It (updated)

Just change the name to Duma and be done with it. And Mukasey promises to follow in Fredo’s footsteps. Ours is truly a decayed house . . .

[Update] The above highlights our dismay that Rockefeller and others in the Senate would cave so easily. They grant the astonishing precedent of retroactive private sector immunity for complying with Executive direction to violate clear statutory law. Should the Senate ratify the SSCI’s poor decision, given the failure of House RESTORE Act, it’s likely this precedent would undermine Congress’ status as a co-equal branch (and drag down the Judiciary with them). Not to mention the little thing called the 4th Amendment and American citizens’ protection from a rogue regime here at home. We didn’t mean to imply, however, that the telco immunity was the only problem with Rockefeller’s Senate ‘compromise’ with the regime — indeed the Senate side was expected to give it.

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Was It The Constitution That Failed Us?

The so-called Critical School of Constitutional Theory from several decades ago (perhaps best summed up by then-Georgetown Law Professor Mark Tushnet over the years (now at Harvard and part of Jack Balkin’s blog)) is enjoying a revival. Almost entirely because of the Warlord, his regime and the Judiciary and Congress’ failure to assert themselves as co-equal branches of government.

Over at Jack Balkin’s site, a number of efforts to re-launch and even re-make many of the previous Crit School observations but now with contemporary urgency (and frankly legitimacy, one must confess) are under way. We have enjoyed the analysis over there greatly and during the Dark Years the site was an invaluable resource. Regarding their new discussion, Sandy Levinson put it thusly:

Discussion sites on constitutional change

Sandy Levinson

University of Virginia political science professor Larry Sabato is about to publish a very interesting book, A More Perfect Constitution, that both critiques the Constitution and, more than my book, offers explicit suggestions (23 of them) for improvment, including the call for a new constituitonal convention. His book is the trigger for a major event in Washington on Friday, October 18 (in which I will be participating on a panel on a new convention). He suggests, as do I, that one way to begin the long overdue national conversation is through dedicated web sites, including his own amoreperfectconstitution.com. I have also created a blog site on my University of Texas page, and I welcome anyone who wishes to particpate in some of the discussions that I have been trying to initiate.

Larry Sabato proposes 23 specific changes to the Constitution in yes, his new book. Sabato, like Louis Fisher in an earlier generation, as noted by Sandy Levinson is a political scientist rather than a legal scholar, and approaches the subject from the external rather than internal (legal) point of view. Here is his list of 23 specific changes to the Constitution.

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