The most disturbing thing that came out in the confirmation hearings for now-Attorney General Mukasey was not his reluctance to declare waterboarding torture (issue discussed separately in a following entry) but that he actually came out and said that the President could authorize people to violate the law in the nation's defense. I really was shocked that Mukasey, who has had a decent record as a jurist, would have "drunk the Kool-Aid" that quickly and accepted the Bush/Cheney line on the "powers" of the "Unitary Executive," especially since this idea is so very wrong, so very dangerous, and so very, very, contrary to the principles our nation was founded upon.
Some of you reading this journal know that I went to Law School and practiced law quite activley for sixteen years before going into another career. Therefore, I visualized this scenario.
Phone at Mukasey home: Ring, Ring!
A.G. Mukasey: Hello?
Yale: Hello, Judge Mukasey. This is Yale Law School. We're calling to tell you we want the LL.B we awarded you back. After hearing your testimony before the Senate, we've decided to retroactively flunk you in Constitutional Law--.
The thing is, this whole "Unitary Executive" and "inherent powers of the President as Commander-in Chief" thing is bullshit. To the extent it is being pushed today, it is a pipe-dream concocted by Cheney, Rumsfeld and other power-hungry creatures, not justified by any reasonable interpretation of the Constitution. It is intended to make the office of the President predominant and insulated from either Congressional oversight or control by the courts, grossly overthrowing the "separation of powers" and "checks and balances" ideals that are central to our governmental system.
Article 2, Section 2, of the Constitution provides, in pertinent part: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"
Article 2, Section 3, provides: "he shall take Care that the Laws be faithfully executed,"
Note that there is nothing in either of these very brief sections giving the President the authority to override or ignore the laws that Congress has made. In fact, it could be argued that Mr. Bush's notorious "signing statements" wherein he purports to reserve exceptions to laws he has nevertheless signed, are a clear statement of intent to commit malfeasance in office.
The true balance of powers should be that, if ANY branch of government should be preeminent, is should be the Congress. The President is the people's elected head of the executive branch, but the Congress IS the People "in Congress assembled." To put it in business terms, the President may be CEO, but the Congress is the Board of Directors. Note that while the Congress may remove the President, unlike some other govermental systems, the President cannot dismiss Congress or remove any of its members. Only the Congress itself can unseat one of its own. Admittedly, the Congress is an unwieldly body to exercise directed authority, but the Congress has been supinely complict in the usurpation of its authority, and is only now beginning to fight back.
The founders of our nation expressly eschewed kingly authority. They knew of their own experience what that entailed. Washington, who might have had it, refused the idea of wearing a crown. How saddened he would be to know that his current follower in office has devoted so much effort to seeking and weilding the power of an autocrat.
These are the most crucial question we must ask of any of our current class of Presidential candidates for the next election, and I hope that anyone who reads this who gets a chance will pose them to anyone they can:
If elected, will you: seek revision of the Patriot Act and repeal of the Military Comissions Act? Will you forswear torture, rendition, warrentless searches, and holding of United States' detainees in foreign prisons; and will you seek legislation making such practices clearly illegal?
If we can't get some clear answers to these questions, I will be very worried for our future as a nation.