Conservatives chalk up a couple of wins. America and the Constitution lose


Let’s say your political movement had a very fundamental problem with the U.S. Constitution and the system of checks and balances that comes with three branches of government. The three branches are supposed to keep each other from going too far. The Courts keep Congress and the president from creating interpretations of the Constitution out of thin air. The Supreme Court keeps Congress from pandering to hotbutton trends in the political wind. The president has a fairly free hand to conduct foreign policy, but since Congress controls the purse strings the President is must rely on Congress to fund his foreign policy. Laws passed by Congress and treaties entered into by previous presidents and Congress are binding on the president. What can a political movement do to skirt the constitution without appearing to block its provisions. Well you do two things, you use legal maneuvering to block access to judicial review and you get Congress to enact laws that make it difficult for those that oppose your agenda from seeking redress. Laws Without Judicial Recourse

First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva’s status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it. Indeed, the MCA reaffirms these substantive standards and makes them applicable throughout the world. If the President violates these standards, or directs others to do so, he violates the law. That means if the President interprets these standards narrowly and tendentiously to permit certain interrogation practices, he also violates the law. There is just no judicial remedy for the violation.

Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don’t hold your breath.)

So this team of conservative extremists can’t make a full frontal assault on the Constitution, but they can tear down access to it. Sure you can use the kitchen, help yourself anytime, only the doors have been barricaded. Bush isn’t stringing up barbed wire on the nation’s principles on his own. He couldn’t accomplish any of this agenda unless there was a break down in the checks and balances between Congress and the executive. A Congress dominated by conservatives has not risen to protect the basic fabric of the Constitution. On the contrary, the political movement that for fifty years swore that they were the party of constitutional fundamentalism has dug a mote around the Constitution to make access either difficult or meaningless, Legislating Violations of the Constitution

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment’s separation of church and state. The Public Expression of Religion Act – H.R. 2679 – provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.


Despite the effectiveness of this statute, conservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would — under the bill — not be entitled to recover attorneys’ fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

Such a bill could have only one motive: to protect unconstitutional government actions advancing religion. The religious right, which has been trying for years to use government to advance their religious views, wants to reduce the likelihood that their efforts will be declared unconstitutional. Since they cannot change the law of the Establishment Clause by statute, they have turned their attention to trying to prevent its enforcement by eliminating the possibility for recovery of attorneys’ fees.

Those who successfully prove the government has violated their constitutional rights would, under the bill, be required to pay their own legal fees. Few people can afford to do so. Without the possibility of attorneys’ fees, individuals who suffer unconstitutional religious persecution often will be unable to sue.

The conservative movement wouldn’t direct a full frontal attack on the constitution even if they had enough honor and spine to admit that was their primary goal. It would be political suicide. Sure they’d get the deep red right-wing freeper vote, but they’d scare off even the Fox News conservatives, the ones that are still under the delusion that conservatives are the party of liberty and small government. So America losses big this week, but conservative chalk up a couple clever victories. A victory for what nobody knows.

President William J. Clinton gets the last word, Woodward’s 9/11 Bombshell Suggests ‘Coverup’

The Woodward excerpt describes how, on July 10, 2001, CIA Director George J. Tenet met with his counterterrorism chief, J. Cofer Black, at CIA headquarters “to review the latest on Osama bin Laden and his al-Qaeda terrorist organization. Black laid out the case, consisting of communications intercepts and other top-secret intelligence showing the increasing likelihood that al-Qaeda would soon attack the United States. The mass of fragments made a compelling case, so compelling to Tenet that he decided he and Black should go to the White House immediately.”

Tenet called Condoleezza Rice, then national security adviser. “For months,” Woodward writes, “Tenet had been pressing Rice to set a clear counterterrorism policy… that would give the CIA stronger authority to conduct covert action against bin Laden…. Tenet and Black hoped to convey the depth of their anxiety and get Rice to kick-start the government into immediate action.

“Tenet had been losing sleep over the recent intelligence. There was no conclusive, smoking-gun intelligence, but there was such a huge volume of data that an intelligence officer’s instinct strongly suggested that something was coming….

“But Tenet had been having difficulty getting traction on an immediate bin Laden action plan, in part because Defense Secretary Donald H. Rumsfeld had questioned all the intelligence, asking: Could it all be a grand deception?”

Woodward describes the meeting, and the two officials’ plea that the U.S. “needed to take action that moment — covert, military, whatever — to thwart bin Laden.”

The result? “Tenet and Black felt they were not getting through to Rice. She was polite, but they felt the brush-off. President Bush had said he didn’t want to swat at flies.

“Tenet left the meeting feeling frustrated. Though Rice had given them a fair hearing, no immediate action meant great risk. Black felt the decision to just keep planning was a sustained policy failure. Rice and the Bush team had been in hibernation too long….

“Afterward, Tenet looked back on the meeting with Rice as a lost opportunity to prevent or disrupt the attacks. Rice could have gotten through to Bush on the threat, Tenet thought, but she just didn’t get it in time. He felt that he had done his job and been very direct about the threat, but that Rice had not moved quickly. He felt she was not organized and did not push people, as he tried to do at the CIA.

“Black later said, ‘The only thing we didn’t do was pull the trigger to the gun we were holding to her head.'”