Democracy at the Crossroads

February 18, 2008

Meet Up Impeachment
Santa Barbara,CA

I will say to you tonight that I think democracy is at a crossroads.

Last week, Thursday, the Republican members of the House of Representatives stormed out of the House in protest against a vote to hold Joshua Bolton, White House Chief of Staff and Harriet Meirs, former White House counsel in contempt. These two staffers had, since last July-for over six months-refused to answer to Congressional subpoenas. Every other person in the country has to respond to a congressional subpoena, but not people who work for the president.

The Congress says that it has authority to investigate. The White House says that it has executive privilege that makes it immune from investigation.

Article I section 8 of the Constitution authorizes the Congress to regulate the government.

The president says Article I is overridden by Article II that makes him commander in chief.

That so many Republicans agree that the president should not have to answer to questions from congress is a good indicator of why democracy is at the crossroads.

Americans have been witness, in the last 40 years, to a movement to steadily increase the powers of the president. Whereas, in the 1970s it was only Dick Nixon and Dick Cheney who would say "If the president does it, it is legal" today, the whole of the republican House membership storms off the floor supporting the view that the president is above the law.

We are at a crossroads because this position has been increasing in strength under the careful nurturance of the Heritage Foundation, The Weekly Standard, The American Enterprise Institute, etc., and has been supported by millions of propaganda dollars to encourage what these thinkers call conservatism. They are right in this sense: the conservatism that they favor is a carbon copy of the conservatism of the aristocrats and nobility who rallied around English kings when democracy was first emerging in the 17th and 18th centuries. The access to free enterprise that these conservatives favor is access for the most royal of companies like Haliburton, Monsanto, Pfizer, and General Dynamics. It is not access to free competition that this royalty seeks but access to controlled competition, to subsidies and unaudited, fraud-ridden, siphon accounts and these accounts are not different in principle from the Queen's 16th century wine patents to the Earl of Essex or tea monopolies to the East India Company. This conservatism does not provide the benefits of competition between drug companies or affordable prescription drugs to the middle class so much as risk-free investment to those already a part of the royal establishment. This approach is conservative in that it takes us back to a time when privilege was not humble, when entitlement for dukes and bishops was proudly claimed.

The Republicans who stormed off the floor last Thursday have brought into this government the idea that a new corporate nobility are entitled, much as dukes and counts and countesses were entitled and they have bought into government the idea of Charles I that his authority came direct from God. To support this view these conservatives have shoe-horned into power men like Dick Cheney, Douglas Feith, Richard Perle, Donald Rumsfeld, and Paul Wolfowitz, and for seven years they have been pulling off a quiet coup d'etat, undermining the Congress, undermining Article I of the Constitution.

They have, in effect, mounted a 21st century counter revolution and the reason we are at a crossroads is that for the moment it is working.

We are here tonight in general because we support impeachment. We believe that the case for high crimes and misdemeanors is clear. We believe that the president has committed crimes of aggression and crimes against humanity, two of those crimes which only 60 years ago were considered the most heinous, benchmarks in the progress of civilization. But the indictment does not end there.

We believe that the president has violated the War Crimes Act, the Foreign Intelligence Surveillance Act, the Presidential Records Act, The Torture Statute, the United Nations Charter, Art. 52, the felony law proscribing defrauding the Congress, Section 371, Title 18, USC, and he has knowingly acted to vitiate the meaning of the Constitution, Article I, section 8, requiring Congress to regulate the government and land and naval forces, Article I, section 9, ensuring the right of habeas corpus, Article III, granting power to the courts to interpret the laws, and Amendment number 4, prohibiting unreasonable search and seizure, Amendment 8 prohibiting cruel and unusual punishment and Amendment 6, granting right to counsel, and to bail.

We believe that when the cost of these actions is weighed, when the nearly 4, 000 American lives, the scores of thousands more wounded and maimed for life, the probable hundreds of thousands of Iraqi lives every one of which was as valuable to some wife or some mother as any one of ours, when to the cost is added something over 1.2 trillion in dollars down the rat hole plunging our country into record deficits and heading us toward a recession, when to this is added the tens of billions of dollars for which the Pentagon can give no accounting, added to the debasement of the American dollar, the debasement of the American reputation, and the squandering of half a century of global leadership substituting therefore images of American methods of torture and humiliation, we think that all this is at least as serious as the last great cry for impeachment based upon a few acts of consensual sex.

You know all this, and tonight I do not want to go into the detail of any of these crimes or the consequences of these crimes. Due, perhaps, to my years practicing law, defending the Constitution in our courts, followed by years negotiating in countries where the law was thinner than rice paper, I want to come to the defense of the rule of law. Democracy is at a crossroads because the counter revolution is not just against democratic social programs, not just to reverse the New Deal, but against the Constitution of the United States and the very structure of government that arose for us out of the age of kings.

There have been two Bills of Rights. One is our famous first ten amendments to our constitution, and the other was an English Bill of Rights of almost exactly one hundred years before, of 1689. The English Bill had come about because the then-king, James II, was in the habit of creating special ecclesiastical courts to try people like bishops who petitioned him for religious freedom, or for suspending laws of the parliament that he did not like, or for spending monies that he did not have, or that parliament had not authorized. James said that he had a royal prerogative. His father Charles I had said that he had a royal prerogative, too. Charles had said, when I need to raise money, I will raise money, and I will raise it from those of you who have it. If you do not "loan" to me the money for my wars against France, I will throw you in jail.

Charles threw a great many people in jail because they did not want to loan him the money he needed to fight his foreign wars. There they languished. When they asserted the ancient writ of habeas corpus, he fobbed them off. A wizened old lawyer by the name of Sir Edward Coke rose in parliament and said, "This writ goes all the way back, sire, to 1215, all the way to Magna Carta, and Magna Carta puts the law above the king; Magna Carta will have no sovereign!"

On that day, there was stunned silence in House of Lords. The king presided. The old lawyer had challenged the king and told him that the royal prerogative did not, could not, would not ever, override the law.

The king's response was furious: "I take my prerogative from God," he said, "and not from you, nor from the people, and therefore whatever I do is lawful because I do it!" (Richard Nixon would later say the same thing.)

"You ask us for gifts," responded another lawyer, Sir Phillip Seymour, "but how can this be giving when it is against our will and we have no choice!?"

Coke and Seymour and King Charles went at it for nearly 30 years. In 1628 they persuaded the parliament to pass the second great document on behalf of the rights of man in English history, the Petition of Right. The Petition of Right said that habeas corpus would not be ignored, that the king's power could not go so far and that the power to raise money must come from the parliament and not from the king's arbitrary will. All this the parliament insisted upon, almost 400 years ago, and all this is relevant today against a new leader who would act like a king.

But back to lay the historical case: Eventually a civil war was fought in England and Charles lost the war. He lost the royal prerogative, the right to do whatever he pleased or to make law according to his own will, alone, and then, he lost his head for treason. His treason was to attempt to elevate the royal prerogative above the law. "Magna Carta will have no sovereign," cried Sir Edward Coke, and a king paid with his life for his arrogance to think otherwise.

So that was a first great battle, and every colonist in America was aware of it, and every one of those who eventually wrote the American constitution was aware of this battle and this civil war against the royal prerogative. They were as aware then of that civil war as we today are aware of our own civil war.

Charles was the father of James II, who later, in 1688, went about the business again of suspending the law according to his own lights, to make it conform to his own will, and in particular to conform to his own religious preferences. James would throw out Anglican rule if he could and put in its place Catholicism. The old religion was much more in favor of central authority, much more likely to honor kings and support hierarchies; Popes and kings alike needed unquestioned authority and James had found that Catholics did not object when he suspended the law to his own advantage.

Eight Anglican bishops petitioned James for religious tolerance and he threw them all in the Tower of London for their impertinence. He created a special ecclesiastical court to try them, appointing to the court those whom he knew to be favorable to the prerogative. He gave favorable contracts and offices to his friends. He exempted papists from penalties and persecuted dissenters with penalties outside the law. To all this he added a significant dose of incompetence, asserting once again that the authority of a king came from God and not from the parliament, or the people. He was tame in these claims compared to Louis XIV in France, and he thought that if Louis, who was advising him, could get away with all this in France, why not he, James, in England?

When the English lawyers of 1689 realized that the reintroduction of papal rule into England was the same as reintroducing tyranny, they rallied once again. No king, they said, had the authority to override the parliament, or to fail to execute the laws of parliament. No royal prerogative even for the purpose of waging war, could override the law. They threw James out on his ear. They then authored the English Bill of rights which made it illegal to try to suspend the laws of parliament, or to grant special favors to friends, or to favor one religion over another, or to suspend habeas corpus, or create special courts to try people that he could not be sure would be convicted by the regular courts. All this James had done, and all this, if you have been listening carefully is today mimicked by George W. Bush. But before we get to Bush, let us put a little more flesh on the Constitution and words that make clear the enormity of today's counter revolution.

In 1776, Thomas Paine rallied the colonies with his pamphlet Common Sense. Paine was foremost among those in the colonies who warned against the evils of kings. It was not a given, before he wrote, that America would do without a king, or even throw over King George III. So Paine went after kings and their claimed authority to come from God. Oh, man, he said, even the Bible warns against kings: Paine quoted the Book of Samuel:

And all the people said unto Samuel, Pray for thy servants unto the Lord thy God that we die not, for WE HAVE ADDED UNTO OUR SINS THIS EVIL, TO ASK FOR A KING.

If the Bible was the word of God, said Paine, then beware! How could a king therefore rule by divine right? It is an absurdity, he railed.

In England a k[ing] hath little more to do than to make war and give away places, which in plain terms, is to impoverish the nation and set it together by the ears. A pretty business indeed for a man to be allowed eight hundred thousand sterling a year for, and [to be] worshipped into the bargain! Of more worth is one honest man to society, and in the sight of God, than all the crowned ruffians that ever lived.

Paine's Common Sense rallied an uncertain nation to independence. It is said to have sold over 500,000 copies. After Common Sense the idea of ever submitting to a king again grew intolerable. He recommended:

... [that] a day be set apart for proclaiming the charter [the constitution]; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it

The revolution followed and 13 years later a central provision of the American constitution of 1789 was that the new chief executive would take a solemn oath to "faithfully execute" the laws passed by the congress. Remember James II who had refused to enforce the law against his friends and suspended the laws he did not like? The colonists remembered, too.

To require the leader to "faithfully execute" was at the core of the change away from the practices of Europe, the intended antidote to the well-known abuses of kings. Less than a century after James II, the colonists knew and remembered vividly that the central problem of kings has repeatedly been that they refuse to execute the laws faithfully. The problem of Charles I and James I was that they executed only those laws with which they agreed and that was the very reason that they were each removed. It is thus a founding principle of the American social compact that presidents would not have an independent power to resist enforcement of the laws. That they should faithfully execute the laws was a foundation principle, a remedy for the severe grievances against which their ancestors had been struggling for over five hundred years.

Unfortunately, if one were to draft a bill of particulars concerning the failures of the George W. Bush administration to faithfully execute the laws and if one were to ground his or her objections in the history of kings, one could find dramatic parallels. The bill of particulars against Mr. Bush would include many of the charges that were used to depose James II of England and even some that were used to convict his father Charles I of treason. The finding of treason is telling. It had literally been treason for Charles I to refuse to abide by the will of the parliament and to attempt over and over to enforce his personal rule against the rights of his subjects. It had therefore been more than a clash of personalities, or a dispute of parties, or even a dispute over the financing of wars. Since at least 1625, it had rather been the clash of great principles and when Charles spoke of the royal prerogative, it was a dignified term for the principle of personal rule. When parliament spoke of the rule of law they meant to frame the exact opposite. The clash between personal rule and the rule of law thereafter framed the civil war that began in 1642 and ended in Charles' conviction and execution. It is the issue that frames the fury around George Bush's signing statements today.

The charge is so desperate and the times so changed, that one hesitates to use the word treason in regard to these offenses today. And yet, if what was treason in the 17th century were to be applied today, it is clear that George W. Bush has crossed that line.

He has issued hundreds of so-called "signing statements" expressing his interpretation of laws of Congress and his intention to abide by such laws only when in accord with his personal interpretation. According to a 2005 study funded by the American Bar Association:

"From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George W. Bush (Bush II) has produced more than 800."

Other reports now make the number above 1,000. In the words of Charlie Savage who writes for the Boston Globe:

... I went back and read all these signing statements ... that had been put into the Federal Register since the beginning of the Bush administration. What it turned out to be was a road map, essentially, to the implication of the unfettered presidency that Dick Cheney's legal team was trying to create, because when you march down the hundreds of different laws that Bush had declared himself and the executive branch free to disobey, you saw that it's not just a torture ban here or a question of surveillance there, but in hundreds of matters, now over a thousand, large and small, anywhere the Congress had tried to say the executive branch had to do something, couldn't do something else, had to go about doing something in a certain way -- ranging from military rules and regulations, whistleblower protections, protections from political interference in federally funded research, affirmative action hiring programs, across a wide swath of what the government does -- the implication was that Congress could not regulate the government.

It was none of Congress' business what the government did, how it went about it, what the limits of its conduct were. All these matters were solely for the president to decide. So Congress could make laws for the rest of us, but not for the government. The government existed to do what the president wanted it to do at any given moment.

As a self-styled "war time" commander, Bush argues that a president may ignore all of Articles I and III. He may ignore the greater part of the constitution establishing courts and congress as if only Article II were operative. This he may do even when it is he, the president, who has declared the war without declaration of congress. He may eviscerate the old constitution; hang it, and draw and quarter it. He may do all this because he is the single official elected nationally, by all the people. Sir Edward Coke, Sir Thomas Seymour, and Thomas Paine were among those who said that such conduct-even when under royal authority claimed to come from God himself-would never be tolerated again. Their ghosts are calling out to America now.

The president assumes this unilateral power notwithstanding that in Article I, Section 8 of the Constitution, it is the Congress, not the president, that is given the regulatory power over the government and it is the Congress, not the president that is explicitly authorized to regulate our military forces. The language is straightforward and unambiguous: "The Congress shall have the power ...To make Rules for the Government and Regulation of the land and naval Forces." How can any president-apart from the Congress-then have the power to suspend the law as it applies to the naval forces and abrogate-for example-the Coastal Zone Management Act as it applies to the government? How can any president have the power to suspend torture statutes or the warrant provisions of the Foreign Intelligence Surveillance Act? How could this president suspend the application of statute, as Charles Savage reports in the Boston Globe: hundreds of matters, now over a thousand, large and small, anywhere the Congress had tried to say the executive branch had to do something, couldn't do something else, had to go about doing something in a certain way -- ranging from military rules and regulations, whistleblower protections, protections from political interference in federally funded research, affirmative action hiring programs, across a wide swath of what the government does ...

Nowhere in the constitution does it say that a president may declare war, may unilaterally prolong such war indefinitely and may during the period of such eternal prolongation abrogate the statutes of congress and the decisions of the courts. In February, 2008, a federal district judge issued a 36 page opinion reasserting the principle that in the Coastal Zone case the law is above the king. On that same date, without hesitation or pause, the White House announced its intention to continue such special dispensation. Can it be fairly argued that in the election of 2004, the voters of the United States intended to give the president power to occupy, to preempt, the role of congress and federal courts whenever in his judgment he had an intention different than that of the Congress?

A president can only have such plenary power if he suspends the law. But he is not in fact merely suspending a statute. He is suspending Article I, Section 8 of the United States Constitution, the clause that gives Congress power to regulate government and our land and naval forces. He must therefore suspend not only the law-whether it relates to torture or sea coasts of corporate reporting, etc-he must suspend our political structure grounded in the lessons of the revolution of 1776, the revolution of 1689, the Petition of Right of 1628 and the Magna Carta of 1215. He can do all this only if a president is above our tradition, our history and our social compact. He must take us outside the American experience and reintroduce us to the royal code of Justinian which said for the Romans that whatever the emperor did was legal because it was the emperor who did it. He must assume the blood-stained mantle of Charles I and be willing to mimic the arrogant incompetence of James II.

We began by noting that Mr. Bush is ignoring congressional subpoenas, that he is ignoring international law, that he is spending monies that he does not have, aiding friends and penalizing enemies, violating statutes that prohibit lying to congress, violating torture statutes, overriding the Fourth and Eighth Amendments to the US Constitution and we have seen how each of these was put into our constitution for a specific reason, because of fights against the royal prerogative still fresh in the minds of the framers in 1789. Remember the bishops who were thrown into the Tower? The Bill of Rights says that the right to petition shall not be denied. THAT is its source. True life experience was its source. None of our constitutional protections are casual verbiage. To "faithfully execute" the laws is a part of the oath of the office and THAT is in the Constitution and that is what has gone wrong today.

Finally, tonight, we have concluded showing in detail how this president more than any other has refused, on principle, as if he were instructed by God, to enforce laws that he does not like.

The ancient Greeks were not entirely opposed to kings. There could be good kings and bad kings. What they opposed, and what gave rise to democracy in mature Athens, was that bad kings tended to become tyrants. When the rule of law was suborned to personal rule, when personal rule was asserted as a matter of principle, when torture and confinement were arbitrarily imposed, when foreign wars and threats of wars were constantly generated in order to provide a justification for personal rule, when courts and legislatures were marginalized, the Greeks thought to call this perversion tyranny.

To move a republic towards tyranny is not just to be guilty of high crimes and misdemeanors, grounds for impeachment. This is grounds for criminal prosecution. Four hundred years ago, a king who did not like the parliament, Charles I, suspended that parliament. Today a president allows congress to sit but ignores its every attempt to legislate or to control him. If these were the bases for a claim of treason then, they should be grounds for felony prosecution now.