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Tue, 27 Dec 2005 23:01:21 -0500

The Hidden State StepsForward Why This isWORSE Than Hidden

LawBreaking

 

 

 

 

 

http://www.thenation.com/doc/20060109/schell

 

 

 

The Hidden State Steps Forward

 

by JONATHAN SCHELL

 

[from the January 9, 2006 issue]

 

When the New York Times revealed that George W. Bush had ordered the

National Security Agency to wiretap the foreign calls of American

citizens without seeking court permission, as is indisputably required

by the Foreign Intelligence Surveillance Act (FISA), passed by

Congress in 1978, he faced a decision. Would he deny the practice, or

would he admit it? He admitted it. But instead of expressing regret,

he took full ownership of the deed, stating that his order had been

entirely justified, that he had in fact renewed it thirty times, that

he would continue to renew it and--going even more boldly on the

offensive--that those who had made his law-breaking known had

committed a " shameful act. " As justification, he offered two

arguments, one derisory, the other deeply alarming. The derisory one

was that Congress, by authorizing him to use force after September 11,

had authorized him to suspend FISA, although that law is unmentioned

in the resolution. Thus has Bush informed the members of a supposedly

co-equal branch of government of what, unbeknownst to themselves, they

were thinking when they cast their vote. The alarming argument is that

as Commander in Chief he possesses " inherent " authority to suspend

laws in wartime. But if he can suspend FISA at his whim and in secret,

then what law can he not suspend? What need is there, for example, to

pass or not pass the Patriot Act if any or all of its provisions can

be secretly exceeded by the President?

 

Bush's choice marks a watershed in the evolution of his

Administration. Previously when it was caught engaging in disgraceful,

illegal or merely mistaken or incompetent behavior, he would simply

deny it. " We have found the weapons of mass destruction! " " We do not

torture! " However, further developments in the torture matter revealed

a shift. Even as he denied the existence of torture, he and his

officials began to defend his right to order it. His Attorney General,

Alberto Gonzales, refused at his confirmation hearings to state that

the torture called waterboarding, in which someone is brought to the

edge of drowning, was prohibited. Then when Senator John McCain

sponsored a bill prohibiting cruel, inhuman and degrading treatment of

prisoners, Bush threatened to veto the legislation to which it was

attached. It was only in the face of majority votes in both houses

against such treatment that he retreated from his claim.

 

But in the wiretapping matter, he has so far exhibited no such

vacillation. Secret law-breaking has been supplanted by brazen

law-breaking. The difference is critical. If abuses of power are kept

secret, there is still the possibility that, when exposed, they will

be stopped. But if they are exposed and still permitted to continue,

then every remedy has failed, and the abuse is permanently ratified.

In this case, what will be ratified is a presidency that has risen

above the law.

 

The danger is not abstract or merely symbolic. Bush's abuses of

presidential power are the most extensive in American history. He has

launched an aggressive war ( " war of choice, " in today's euphemism) on

false grounds. He has presided over a system of torture and sought to

legitimize it by specious definitions of the word. He has asserted a

wholesale right to lock up American citizens and others indefinitely

without any legal showing or the right to see a lawyer or anyone else.

He has kidnapped people in foreign countries and sent them to other

countries, where they were tortured. In rationalizing these and other

acts, his officials have laid claim to the unlimited, uncheckable and

unreviewable powers he has asserted in the wiretapping case. He has

tried to drop a thick shroud of secrecy over these and other actions.

 

There is a name for a system of government that wages aggressive war,

deceives its citizens, violates their rights, abuses power and breaks

the law, rejects judicial and legislative checks on itself, claims

power without limit, tortures prisoners and acts in secret. It is

dictatorship.

 

The Administration of George W. Bush is not a dictatorship, but it

does manifest the characteristics of one in embryonic form. Until

recently, these were developing and growing in the twilight world of

secrecy. Even within the executive branch itself, Bush seemed to

govern outside the normally constituted channels of the Cabinet and to

rely on what Secretary of State Colin Powell's chief of staff has

called a " cabal. " Former Treasury Secretary Paul O'Neill reported the

same thing. Cabinet meetings were for show. Real decisions were made

elsewhere, out of sight. Another White House official, John DiIulio,

has commented that there was " a complete lack of a policy apparatus "

in the White House. " What you've got is everything, and I mean

everything, being run by the political arm. " As in many Communist

states, a highly centralized party, in this case the Republican Party,

was beginning to forge a parallel apparatus at the heart of

government, a semi-hidden state-within-a-state, by which the real

decisions were made.

 

With Bush's defense of his wiretapping, the hidden state has stepped

into the open. The deeper challenge Bush has thrown down, therefore,

is whether the country wants to embrace the new form of government he

is creating by executive fiat or to continue with the old

constitutional form. He is now in effect saying, " Yes, I am above the

law--I am the law, which is nothing more than what I and my hired

lawyers say it is--and if you don't like it, I dare you to do

something about it. "

 

Members of Congress have no choice but to accept the challenge. They

did so once before, when Richard Nixon, who said, " When the President

does it, that means it's not illegal, " posed a similar threat to the

Constitution. The only possible answer is to inform Bush forthwith

that if he continues in his defiance, he will be impeached.

 

If Congress accepts his usurpation of its legislative power, they will

be no Congress and might as well stop meeting. Either the President

must uphold the laws of the United States, which are Congress's laws,

or he must leave office.

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