06/30/2008 01:06 pm ET Updated May 25, 2011

The Character Issue, FISA and The Constitution

Recently Chris Hedges wrote an article in Truthout entitled: The Corporate State and the Subversion of Democracy. Hedges described the systematic, de facto dismantling of the US Constitution, stemming from a series of unconstitutional 'laws', obediently supported by both Democrats and Republicans. As I read further, I realized the legislative atrocities posed by the likes of Patriot, Military Commissions, Protect America Act, the FISA 'compromise' bill and an assortment of overreaching Executive Orders and Signing Statements, were mere symptoms of a more serious condition, the demise of democracy.

We live in an era of idol worship, more specifically 'celebrity' culture, which values popularity over substance. One look at the presidential election cycle proves the point. Rather than report on substantive issues; the 'mainstream' (read--corporate) press either perseverates on such intellectual anesthesia as Michelle's 'fist bump,' Cindy's 'lifted' cookie recipes, or the empty slogans of the 'straight talk express,' and (my personal favorite)-- 'YES WE CAN.' While pundits question Michelle Obama's patriotism over an honest comment that--I too have shared; they remain eerily silent on a rogue dictator/president and this Vichy lapdog Congress. While Wolf Blitzer claims the throne of ...'the best political team on television;' the constitutional crimes of this administration and the collaborators in Congress remain unexamined and unchecked. This pattern of journalistic neglect reduces the 'free press,' to corporate sponsored 'edutainment,' momentarily tasty but devoid of nutrient value.

This past week an example of such 'edutainment' occurred with the incompetent coverage of the so-called FISA 'compromise' bill which sailed through the democratically controlled House of Representatives. As the mainstream media heralded the wisdom of this 'compromise;' telecommunication giants let out a collective sigh of relief. The FISA 'compromise' bill grants legal immunity from prosecution by any member of the voting public. In addition, this legal immunity PERMANENTLY BLOCKS any future lawsuits for crimes committed since or before 2001 as well as crimes to be committed by this president and any future presidents. Consequently, the foreign and domestic spying networks created using 9/11 as the excuse, would be LEGALIZED PERMANENTLY AS A RESULT OF THIS FISA 'COMPROMISE' BILL. The icing on the legislative cake lies in the fact that this immunity from any and all prosecutions, (irrespective of any iron clad evidence of criminality); is RETROACTIVE, with the retroactive protection aspect lacking any beginning or ending timeline dates.

Why is this important to a functioning democratic republic? Why should the average American care about this legislative wrangling on what sounds like more doublespeak drivel? The answer is simple and crucial to the type of future we want for our children and grandchildren. This legislative treason , speaks to the kind of presidency we will have from this point on, and into our children's futures. Do we want a presidency of the Unitary Executive (McCain), which amounts to a presidential dictator barking orders at a syncophant lapdog congress, or do we want a return to constitutional rule and a true tripartite government with checks and balances? It is unclear which side Senator Obama favors on his current inaction regarding the FISA issue.

Obama's recent history on this FISA immunity issue all too eerily reflects the old 'triangulation' schemes of Bill Clinton. Obama was the editor of the Harvard Law Review, has taught CONSTITUTIONAL LAW ; and yet vacillates on the issue of warrantless wiretapping and the dangerous power grab occurring through the present occupation of the Oval Office. In 2007, Obama's campaign spokesman, Bill Burton, indicated that Obama ..."would SUPPORT A FILIBUSTER OF ANY BILL THAT INCLUDES RETROACTIVE IMMUNITY for telecommunications companies." (Obama spokesman Bill Burton in September of 2007). ( Keep in mind that any legal immunity legislated at a federal level is a denial of legal redress and protection to any past, present or future victims, and to our society in general. Denial of litigation rights through the granting of permanent, retroactive immunity with no beginning or ending dates IS a denial of justice).

Those of us concerned with the constitutional crimes of the Bush/Cheney administration and the collaborators in Congress were thus reassured of Obama's commitment to restoring constitutional rule, by this 2007 campaign declaration. Yet, Obama's formally issued statement this past month on the FISA 'compromise' bill , as recently evidenced by direct quote from the candidate, would confound the most stalwart civil libertarians on both sides of the political aisle. Here is Obama's formal response to the FISA compromise bill, now re- scheduled for a Senate vote immediately following the July 4th holiday:

"Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people..."

"After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act...It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. It is not all that I would want, but given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. SO I SUPPORT THE COMPROMISE, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives--and the liberty--of the American people." (Official Presidential Candidate Barack Obama Statement on FISA Compromise Bill, June, 2008).

Once again, the argument that national security trumps civil liberties is granted false legitimacy. As the proverbial 'love child' of fascists in our midst; this argument has been repeated to the point of becoming THE BIG LIE OF THE 21ST CENTURY. Those like Cheney's chief of staff, David Addington, have made this their pseudo-intellectual mantra. Claiming that our traditional civil liberties make the terrorist's job easier; they swear that by granting the presidential dictator and the military extra-policing power through the abrogation of our God given civil liberties--that we will become safer. The false quality of this intellectually bereft argument is exemplified in already existing police states such as Israel. Though the Israelis surrendered long ago, any sense of civil liberty or privacy to the security/police forces, (racial profiling is rampant); terrorist attacks on civilians are among the highest in the world. Addington and his fellow legal thugs, (John Soon Yoo, Viet Dinh, and Gonzales), have a cute, pre-prepared answer--MORE SECURITY THROUGH A POLICE STATE. Can these morally bankrupt eunuchs spell mass PARANOIA?!

Unfortunately, the argument is made with such perseverated, autistic-like frequency that even politicians on the Democratic side feel pressured to echo the same sentiments, though sugar-coated catchphrases fully acessorized with vague, impotent reassurances. None of these minions, Dem or Republican want to be labeled as 'soft on terrorism.' Facts and logic be damned--let's make sure we're politically 'macho' enough. The problem with this stance, (beyond the logical and factual falsity of the basic premise); lies in the historical interpretation of congressional inaction regarding executive power abuses.

There is a legal precedent in American jurisprudence which permits the creation of new law through congressional inaction. The 'Steel Seizure case'--also known as--Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952) is the legally accepted case on increasing presidential power. In the Youngstown case, the Supreme Court reviewed President Truman's EXECUTIVE ORDER, nationalizing our steel plants during the Korean War in an attempt to end a strike. The history changing opinions were written by fellow Democratic appointees, Justices Robert H. Jackson and Felix Frankfurter. THE BASIC ARGUMENT [1] ALLOWING A DE FACTO TYPE OF COMMON LAW CONSTITUTIONAL AMENDMENT was provided by Frankfurter:

"Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, A SYSTEMATIC, UNBROKEN, EXECUTIVE PRACTICE, LONG PURSUED TO THE KNOWLEDGE OF THE CONGRESS AND NEVER BEFORE QUESTIONED, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part [343 U.S. 579, 611] of the structure of our government, MAY BE TREATED AS A GLOSS ON "EXECUTIVE POWER" VESTED IN THE PRESIDENT BY 1 of Art, II." (Justice Felix Frankfurter, 1952).

In the Youngstown case, Justice Jackson concurred, [2] adding that the president's powers possess variance in terms of acting with congressional authority (the strongest legitimacy), in opposition to the same, or IN THE ABSENCE OF SUCH CONGRESSIONAL OVERSIGHT:

"When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have CONCURRENT AUTHORITY, OR IN WHICH ITS DISTRIBUTION IS UNCERTAIN. THEREFORE, CONGRESSIONAL INERTIA, INDIFFERENCE OR QUIESCENCE MAY SOMETIMES, AT LEAST AS A PRACTICAL MATTER, ENABLE, IF NOT INVITE, MEASURES ON INDEPENDENT PRESIDENTIAL RESPONSIBILITY. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." (Justice Robert H. Jackson, 1952).

In practical terms, this decision allows for the potential UNILATERAL INCREASE IN EXECUTIVE POWER WITHOUT CONGRESSIONAL OVERSIGHT OR A CONSTITUTIONAL CONVENTION TO AMEND SAID CONSTITUTION, GRANTED AS A DIRECT RESULT OF CONGRESSIONAL INACTION. In other words, if a president systematically and repeatedly asserts any prerogative, (such as declaring war without congressional oversight and permission, or revoking civil rights without due process), and does so routinely, with UNQUESTIONING CONGRESSIONAL KNOWLEDGE--THEN THAT POWER OR PRACTICE BECOMES A CONSTITUTIONAL POWER OF THE EXECUTIVE, THAT CAN NEVER BE INFRINGED UPON BY THE COURTS, CONGRESS OR THE PEOPLE.

In hindsight, when Pelosi stated that ..."impeachment is off the table," she was guilty of the very..."indifference or quiescence," needed to increase the powers of an imperial presidential dictatorship. Ironically, impeachment is not the only check against presidential abuses. Members of Congress do not need to successfully impeach in order to hold a 'grand inquest' into newly claimed and questionable presidential powers. The action of a 'grand inquest,' and the convening of such an inquest could serve as the formal objection required to prevent such an escalation of executive overreach. All that is needed to place an abusive executive 'in check,' is for the House Judiciary Committee to formally convene this same GRAND INQUEST, regardless of impeachment status. Given the fact, that most congressmen ARE ATTORNEYS, makes their inaction, inertia and quiescence--inexcusable.

Whether the concern is the FISA 'compromise' bill or one of many constitutional violations; the silence on constitutional restoration from both presidential candidates speaks volumes in terms of their respect for due process, constitutional rights and basic personal integrity. In an age where a candidates' qualifications include the requisite patriotism; I wonder about issues more serious than the presence of a lapel pin. It's not merely a question of McCain's alleged intellectual deficits or Obama's relative inexperience; it's a question of their integrity. When a new president or member of congress swears on the Holy Bible to ...defend the US Constitution...against enemies both domestic and foreign; you have to question the cowardice displayed by THIS congress AND the presidential contenders. Rather than be called out as 'soft on terrorism,' they prefer to destroy the last remnants of a once proud constitution.

Rather than decry the constitutional abuses of the past eight years; the presidential candidates give us propaganda. While McCain throws dictatorial tantrums denying the legitimacy of rights articulated in the constitution; Obama uses measured language, full of nuances--a true test of an excellent attorney or diplomat. The question remains, is this measured, vague language a sign of leadership? Where does Obama stand on restoration of constitutional rule? Do his actions match his rhetoric?

We know where McCain stands, as he constantly complains about constitutional restraints. McCain's contempt for our constitution is obvious; Obama's interpretation is murkier. The Senator from Illinois preaches constitutional rights, yet repeatedly votes against constitutional rule as evidenced by his earlier vote for the hapless 'Protect America Act,' and his admission of begrudged support for the FISA 'compromise' bill. His voting pattern is consistent with the most hawkish neoncons, but he does make the public feel better about this American 'empire.' I n truth, Obama must clarify his positions on the return of constitutional rule and the balance of power between the Judiciary, Legislative and Executive branches, in a concrete and precise fashion. This not only speaks to his intentions regarding the constitution he professes to love, but also addresses the very nature of presidential leadership. Is Obama going to embrace the Bush/McCain Unitary Executive form of presidency, which establishes a presidential dictator and reduces congress to writing blank checks, or will he restore constitutional rule with the president working as an equal branch of a tripartite democratic republic? Will Obama respect the rights of citizenry as established in the constitution, or will he bashfully accept the role of 'benevolent' presidential dictator, thus relegating the Bill of Rights to a quaint notion? Finally, will a President Obama and the corporate 'centrist' democrats line up eagerly to accept the ongoing slide to fascism; or will they embrace the promise of..."The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated , and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." (4th Amendment, US Constitution).

This election is about so much more than the fraudulent FISA compromise, the deplorable economy, a reckless war of empire or a desperate desire for 'hope,' false or otherwise. This election and the pressure exerted on this inept congress and ambitious presidential candidates, speaks to the very nature of a democratic republic and what it takes to restore constitutional rule ...'of the people, by the people and for the people." The actions of the public in response to both congress and any president will determine the very survival of this noble democratic experiment.