Will Bush Provoke a Constitutional Crisis?
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While the November elections provided the Democratic Party a public mandate to end the war in Iraq, President Bush has signaled his intent to utilize his institutional powers as Commander in Chief to maintain and even escalate the U.S. commitment, public or congressional opinion notwithstanding. The Democratic leadership has removed two obvious ways to stop him -- impeachment and a cutoff of war funds -- from the table. Some Democrats have even indicated they will acquiesce in the sending of tens of thousands more troops to Iraq.
For those for in Congress and the public whom acquiescence is not an option, there remains an indirect route to challenging Presidential war-making power and force withdrawal from Iraq. That is to so discredit the Administration in the eyes of the public that neither Republican politicians nor the military, the intelligence agencies, the foreign policy establishment, or the corporate elite will allow it to continue on its catastrophic course. That requires a devastating exposure of the criminality, corruption, stupidity, and false premises of those who are making the decisions.
The road to withdrawal from Iraq, in short, may run through a congressional hearing room. But whether it does will depend in large part on how Democrats go about their investigations and how much the public demands they truly confront the Bush administration's criminality.
Just in the first three weeks of the session, Senate Democrats plan to call at least 13 hearings on Iraq.1 On the House side, Rep. John Murtha has promised to hold two hearings a day for several months beginning on January 17th, and many others are planned as well.
The Democrats' investigations could follow either of two strategies. One is to use hearings simply to service their '08 election goals by revealing some blemishes in Bush's Iraq policy -- while letting the war, torture, spying, and other crimes continue unimpeded. The alternate is to investigate with the intent of driving a dagger into the soft underbelly of the Bush juggernaut -- its criminal violation of the U.S. Constitution and U.S. and international law and its criminal coverup of its abuses.
The upcoming hearings will undoubtedly include demands for information that the Administration has up till now refused to provide. The consequence will be a power struggle which could -- if Democrats so choose -- be the defining moment in the effort to establish legal and constitutional accountability for the Bush administration -- and thereby force it to end the war.
The Bush administration has been historic in its refusal to share information with Congress or the public. It has strong motivations to continue to conceal such information, such as avoiding humiliation, further public exposure, and probable criminal liability. It has sent strong signals it will indeed refuse to provide such information. As Time magazine wrote just before the election:
When it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist described as 'a cataclysmic fight to the death' over the balance between Congress and White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is 'going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation.
As a result, the U.S. is headed toward what Tom Engelhard has called "the mother of all Constitutional crises."
Indeed, that crisis has already begun. For example, just after the elections the Justice Department, in response to an ACLU suit, disclosed in court the existence of directives from the President and the CIA General Counsel that may have authorized torture and other illegal interrogation techniques. Sen. Patrick Leahy, incoming chair of the Senate Judiciary Committee, immediately wrote Attorney General Alberto Gonzales requesting the documents and related records. On January 2, Leahy released a letter from the Justice Department refusing to provide the documents on grounds of national security and executive privilege. Leahy decried the refusal and added, "I have advised the Attorney General that I plan to pursue this matter further at the Committee's first oversight hearing of the Department of Justice."
This is just the first of what are likely to be myriad such conflicts. Both sides are likely to maneuver to determine the issues over which the climactic struggles will arise. The Administration will probably maneuver for issues on which it can make a strong national security case. Congress will probably seek to steer confrontation to issues like war profiteering on which the Administration will appear to be withholding information for self-serving reasons, e.g. avoiding embarrassment or criminal culpability.
Constitutionalists, progressives, and the public should support the congressional assertion of the right to know, whatever subject emerges as the decisive bone of contention. However, they should ensure that this does not become a means for either side to take other important but more controversial issues (such as the origins of the war and the commission of war crimes) off the table.
The Administration has been preparing for this situation for a long time; news reports indicate that even prior to the elections it hired lawyers specifically to plan for such a contingency. It is likely to use a variety of delaying tactics, diversions, and pseudo-compliances to bring the issue to a head at a time most advantageous to it. It is also likely to engage in counter-attacks, such as the recent attempt by its prosecutors to use a grand jury subpoena to force the ACLU to turn over all copies of a classified document. (The revocation of its demand also shows the effectiveness of firm resistance to Administration intimidation.)
Notwithstanding Administration delays and diversions, Congressional access to Administration documents is likely to become a serious power struggle quite rapidly after the opening of the new Congress. A plausible scenario looks something like this:
- A congressional committee will request information.
- The Administration will stonewall.
- The committee will issue a subpoena.
- Amidst a sea of justifications and vilifications, the Administration will fail or refuse to produce documents.
- The committee will pass a contempt citation.
- The Senate or House will pass a contempt citation.
- The contempt citation will be referred to the Justice Department.
- The Justice Department will fail or refuse to bring contempt
At that point Congress will have several options:
What choice Congress makes will depend largely on public perception of and response to the situation. For example, in the Watergate scandal, public outrage at the "Saturday Night Massacre" tipped the balance toward congressional impeachment hearings. On the other hand, public disapproval of the attempt to impeach President Clinton actually contributed to a Democratic victory at the next elections.
Constitutionalists and progressives need to start planning proactively to prepare the public to respond appropriately and effectively to this impending confrontation.
First, that requires an on-going interpretation to people of what is happening and what it means.
Second, it involves defining venues for action in which large numbers of people can participate. Rep. John Conyers' mobilization of popular support for demanding information about the Downing Street memos represents on a small scale what will need to be done on a larger scale.
Third, it requires creating some kind of infrastructure or rapid-response network with the capacity to support such a mobilization.
Fourth, it calls for a broad coalition that reaches far beyond progressives to include conservatives committed to the rule of law and a broad public concerned about the abuse of presidential power and the preservation of democracy. Such a coalition already exists in nascent form, for example in the Constitution Project, which has brought together such improbably allies as Al Gore and Bob Barr to articulate concern about Bush administration abuse of presidential power.
The power and willingness of Congress to affect Bush's Iraq policies depends on utilizing the vulnerability of the Administration and its Republican supporters to severe loss of effective power, criminal investigation, and/or impeachment. That vulnerability is likely to be greatest, in turn, where the Administration can be shown to engage in Nixonian abuse of government power to suppress information in its own interest.
A defeat of the Bush administration on the right of Congress and the public to know what the government is doing can be the starting point of a broader effort to establish institutional and cultural vehicles for controlling executive power -- in short, for a transition to democracy.
Jeremy Brecher is a historian and co-editor with Brendan Smith and Jill Cutler of "In the Name of Democracy: American War Crimes in Iraq and Beyond" (Metropolitan/Holt) and is a co-founder of WarCrimesWatch.org. Brendan Smith is a legal analyst and currently co-director of Global Labor Strategies and UCLA Law School's Globalization and Labor Standards Project .