Constitutional Showdown

I read this article in the New York Times today, which reports that the Senate voted 51-47 on the bill appropriating more funds for the debacle in Iraq -- more than $96 billion -- while also sporting a non-binding measure to have US troops out of Iraq by March 31, 2008. But guess who didn't vote for the bill? That's right, Joe Lieberman -- the very same senator who broke off from the Democratic party when primary voters in Connecticut rejected his candidacy, only to subsequently run as an independent in the general election. Upon winning the 2006 senatorial election, Lieberman -- who had switched his position on the conflict in Iraq after losing the primary to the true anti-war candidate, Ned Lamont -- claimed he would be caucusing with the Democrats in the Senate. Considering that Lieberman won the election with 70% of the Republican vote, it's no surprise that he's siding with Republicans on this issue.

That aside, this is an important victory for the Democratic majority in Congress. Not only did the Senate bill pass, but so did the House version, which had even stronger language. The House version demands that US troops to be out of Iraq by September 2008 -- there's nothing non-binding about it! And this is where the constitutional showdown will occur.

President Bush has said that he will veto any Iraq-conflict appropriations bill that calls for US troop withdrawal. This New York Times article writes that both the President and Democrats in Congress seem eager for the fight.

Senator Harry Reid (D-NV) said that President Bush “doesn’t want anything other than a confrontation.” And a confrontation there will be -- but this will be bigger than just a spat between Congress and the President over the handling of the Iraq-conflict, this will be a fight between the constitutionally mandated balance of governmental powers and the unitary executive theory.

Why is this so important: because at the end of this confrontation, Americans will finally know whether or not they're living in a democracy or a dictatorship. If Congress is able to exercise it's constitutional oversight of the Executive branch, then we'll know democracy still exists in the country. But if the President successfully thwarts the efforts of Congress, then the unitary executive theory will gain strength, solidifying extra-constitutional powers to the President.

As I understand it, Congress -- and only Congress -- has the authority to declare war. While Congress authorized force in Iraq back in October of 2002, that can easily be changed at any time by Congress. From a legal standpoint, we're not at war because Congress has not declared so. Therefore, any use of force by the President is subject to the oversight of Congress. This is to prevent the Executive from wielding the nation's standing army as a political tool -- but if the President wins this fight, he will have set a new precedent that allows the President to do what he wishes with the armed forces without the oversight of Congress. We'll be one more step towards totalitarianism.

I do think that Bush will veto this bill, and I hope the Congress will continue to pursue a confrontation with the President on this issue. If so, it's likely that this could end up before the courts -- and only then will we know if Bush has sufficiently packed the Supreme Court with enough conservative justices to give him the judgment that he wants. This constitutional showdown is necessary for the people of America to know where their government stands.

Executive Privilege v. The Constitution

The Baltimore Sun has a rather misleading headline in today's paper -- "Bush says Congress can talk to aides." Sure, the Bush administration technically did say that; however, the White House is not allowing aides to be questioned on the public record or under oath:

He [Bush] urged them to accept his offer to have Rove and former White House counsel Harriet E. Miers talk to congressional investigators behind closed doors, but not under oath. He also pledged to release all White House documents related to the firings.

Senator Patrick Leahy (D-VT) said it best:

"It is not constructive, and it is not helpful to be telling the Senate how to do our investigation, or to prejudge its outcome. Testimony should be on the record and under oath. That's the formula for true accountability."

So what is the Bush administration's reasoning for disallowing White House aides to testify on the public record and under oath?

White House counsel Fred Fielding said in a letter to congressional leaders that Bush's proposal struck a balance between providing the information that Congress needs and preserving confidences of the president under the doctrine of executive privilege.

Besides making the questioning private and not under oath, he said, the interviews should be permitted only as "a last resort." [emphasis mine]

Preserving executive privilege. This may or may not be constitutional, since we haven't had any serious inquiry into President Bush’s excessive use of executive privilege. Once again, this administration is attempting to concentrate and preserve political power.

And I'm glad that the Democrats are going to be challenging the President’s decision with subpoenas:

"We will move forward to authorize subpoenas for current and former White House and Justice officials, as well as documents," said House Judiciary Committee Chairman John Conyers Jr. of Michigan.

The committee "will take whatever steps are necessary and within our congressional authority to get to the bottom of what has become a horrible mess that is undermining American trust in our federal criminal justice system."

Bush wants to avoid a confrontation, and that's because he knows that the courts will force White House aides to testify on the record, under oath. I, for one, look forward to subpoenas being issued tomorrow -- it's about fucking time that a constitutional confrontation occur. We need to short circuit this idea of a unitary executive if we want to continue to live in a democracy rather than a dictatorship.

This coming confrontation is more important than anything else in politics today -- dare I say it -- it is even more important than the conflict in Iraq. This is about whether or not the executive branch can do whatever it wants without congressional oversight. Clearly, we need to have a balance of power between the three branches of government, and allowing the executive to have this kind of unchallengeable power is not healthy for a functioning democracy.

UPDATE: The Washington Post reports that the House approves issuing subpoenas.