That the Bush Administration is authoritarian, anti-democratic, and secretive is neither news nor a surprise to anyone, but that doesn't mean we ought to just shrug off its actions when they're put on public display, whether it's George Bush's grotesque FY 2009 budget or his sleight-of-hand regarding funding for the OPEN Government Act of 2007.
When the president signed the act on December 31, 2007, he did so without public comment due to, it now seems clear, the bill's establishment of an "Office of Government Information Services in the National Archives and Records Administration to review agency compliance with FOIA."
He never intended to fund this office but rather has insisted in his FY 2009 budget that the funds be moved to the Justice Department.
Sen. Patrick Leahy (D-VT), a co-sponser of the legislation and Chairman of the Senate Judiciary Committee, said in response to the decision, "the White House has shown they intend to act contrary to the intent of Congress by removing the Office of Government Information Services from the non-partisan, independent office of the National Archives and Records Administration and moving it to the Department of Justice. The President signed legislation into law to establish the OGIS to respond to long outstanding FOIA requests. Now the President has repealed part of the law he signed just over a month ago."
As Ralph Lindeman of the Coalition of Journalists For Open Government put it, the move "would shift the office from a politically neutral National Archives to the Justice Department, which defends the government against requesters in lawsuits under FOIA." Of course, the conflict is obvious in a fox-guarding-the-henhouse-way: if the DOJ defends the government against requesters' petitions, it's hardly the appropriate department to monitor requests in the first place.
**
But, sad to say, the Bush Administration isn't alone in insisting upon anti-democratic secrecy. OpenTheGovernment.org highlighted this problem at the Congressional level in letters to Senate Majority leader Harry Reid (D-NV) and Speaker of the House Nancy Pelosi (D-CA).
The letter to Reid noted that the passage in August 2007 of the Protect America Act, saw "substantial changes to FISA, crafted by the administration, [which] were passed by Congress without any public hearings with anyone other than administration witnesses speaking to Senators."
In the October 2007 letter to Pelosi, OTG said that "we are now faced with a law [PAA] that allows massive untargeted collection of communications into and out of the United States, without court review, and without any limit on how those communications can be distributed or used. This new legislation has serious Fourth Amendment implications and eviscerates the longstanding protections for Americans in FISA. There is substantial work to be done to put this law back in line with the Constitution and our values, work that should not be done in secret or behind closed doors.
We believe Congress cannot fulfill its constitutional responsibilities by voting on legislation making the PAA permanent, extending the law’s sunset or giving immunity
for past warrantless surveillance of Americans, without a public discussion about these very controversial proposals. The rights and civil liberties of Americans are too important to proceed without one."
**
How effective can a democracy be when the leadership of both parties work against open government?
Tuesday, February 5, 2008
Sunday, February 3, 2008
What Wasn't Asked: The Democratic Debate
The most disturbing and disappointing aspect of the Democratic debate in Los Angeles on Thursday was the absence of several critical questions affecting functional, institutional democracy. Shouldn't that be a principal reason why candidates engage in debate to begin with?
Here are a few questions not asked of Barack Obama or Hillary Clinton:
--What criteria would you use in selecting a Supreme Court nominee?
**Their answers would be useful for all the obvious reasons (gay marriage, abortion, Church and State issues, etc.) but, more fundamentally, as an opportunity to address the issue of so-called Constitutional "original intent" or "strict constructionism." George Bush has cited this repeatedly, as befits a plank of the Republican platform, most recently in his State of the Union Address, where he said "on matters of justice, we must trust in the wisdom of our founders and empower judges who understand that the Constitution means what it says. I've submitted judicial nominees who will rule by the letter of the law, not the whim of the gavel."
But there has been little in the way of comments from either Sen. Clinton or Sen. Obama on what would constitute an acceptable criteria for a Supreme Court nominee, so voters are left with inference.
**Obama, on the 35th anniversary of Roe v. Wade, said "last year, the Supreme Court decided by a vote of 5-4 to uphold the Federal Abortion Ban, and in doing so undermined an important principle of Roe v. Wade: that we must always protect women’s health. With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a women’s fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice. That is what is at stake in this election." (emphasis added)
Yet you wouldn't know that's at stake judging by the lack of such questions regarding Supreme Court nominees.
Sen. Clinton said, in voting against Supreme Court Chief Justice John Roberts, that she wants judges who are "steadfast in protecting fundamental women’s rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches." But we won't know what, specifically, she means by this unless questions are asked about Supreme Court nominees.
As Doug Kendall, the founder and Executive Director of Community Rights Counsel (CRC) phrased it, "when's the last time you heard one of the Democratic candidates talk about who they would nominate to the Supreme Court? Have they said anything at all interesting about the topic? Not that I've heard."
And what of questions relating to the FISA legislation currently in the Senate, or on the immunity from prosecution provision for telecom companies in that legislation?
Not a word. As Media Matters noted:
"Despite the controversy over the Bush administration's warrantless domestic surveillance and whether telecommunications companies should receive immunity for their alleged involvement, only one question about wiretapping has been asked of any presidential candidate of either party during the numerous debates over the past year. The lone question was asked of Republican Mitt Romney in September 2007; no Democrat has been asked any question relating to the topic." (the Romney question related to eavesdropping on mosques "even without a judge's approval")
And isn't this statement revealing executive branch overreach worthy of a debate question? The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.
After all, this statement explicitly disavows any Congressional role in surveillance, even one of oversight, and casts aside FISA as an oversight tool.
So where do Clinton and Obama stand on this matter, within the context of debate questions? We don't know.
And, perhaps most importantly, why are there no questions addressing the matter of impeachment? Conventional wisdom tells us that Democrats run from the subject lest they threaten their election chances this November. But impeachment goes beyond the personalities of either George Bush or Dick Cheney. It directly relates to institutional health and integrity, as Scott Horton at Harper's persuasively argues. In his article, Horton cites the late "conservative Harvard legal historian and Supreme Court scholar," Raoul Berger, that the Congressional power of impeachment "constitutes a deliberate breach in the doctrine of separation of powers, so that no arguments drawn from that doctrine (such as executive privilege) may apply to the preliminary inquiry by the House or the subsequent trial by the Senate."
As Horton notes, "the Bush White House has put up enormous battlements in anticipation of what is coming ... [in their] assert[ion of] executive privilege."
The issue of executive authority and its abuse are obviously questions worthy of a debate setting. The Boston Globe's Charlie Savage thought so when he asked candidates about executive power. Barack Obama, responding to the questions, said "the American people need to know where we stand on these issues before they entrust us with this responsibility - particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration." (emphasis added)
Yet, again, no questions were asked about this issue.
Will we, before November, have a debate where such questions will be asked?
Here are a few questions not asked of Barack Obama or Hillary Clinton:
--What criteria would you use in selecting a Supreme Court nominee?
**Their answers would be useful for all the obvious reasons (gay marriage, abortion, Church and State issues, etc.) but, more fundamentally, as an opportunity to address the issue of so-called Constitutional "original intent" or "strict constructionism." George Bush has cited this repeatedly, as befits a plank of the Republican platform, most recently in his State of the Union Address, where he said "on matters of justice, we must trust in the wisdom of our founders and empower judges who understand that the Constitution means what it says. I've submitted judicial nominees who will rule by the letter of the law, not the whim of the gavel."
But there has been little in the way of comments from either Sen. Clinton or Sen. Obama on what would constitute an acceptable criteria for a Supreme Court nominee, so voters are left with inference.
**Obama, on the 35th anniversary of Roe v. Wade, said "last year, the Supreme Court decided by a vote of 5-4 to uphold the Federal Abortion Ban, and in doing so undermined an important principle of Roe v. Wade: that we must always protect women’s health. With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a women’s fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice. That is what is at stake in this election." (emphasis added)
Yet you wouldn't know that's at stake judging by the lack of such questions regarding Supreme Court nominees.
Sen. Clinton said, in voting against Supreme Court Chief Justice John Roberts, that she wants judges who are "steadfast in protecting fundamental women’s rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches." But we won't know what, specifically, she means by this unless questions are asked about Supreme Court nominees.
As Doug Kendall, the founder and Executive Director of Community Rights Counsel (CRC) phrased it, "when's the last time you heard one of the Democratic candidates talk about who they would nominate to the Supreme Court? Have they said anything at all interesting about the topic? Not that I've heard."
And what of questions relating to the FISA legislation currently in the Senate, or on the immunity from prosecution provision for telecom companies in that legislation?
Not a word. As Media Matters noted:
"Despite the controversy over the Bush administration's warrantless domestic surveillance and whether telecommunications companies should receive immunity for their alleged involvement, only one question about wiretapping has been asked of any presidential candidate of either party during the numerous debates over the past year. The lone question was asked of Republican Mitt Romney in September 2007; no Democrat has been asked any question relating to the topic." (the Romney question related to eavesdropping on mosques "even without a judge's approval")
And isn't this statement revealing executive branch overreach worthy of a debate question? The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.
After all, this statement explicitly disavows any Congressional role in surveillance, even one of oversight, and casts aside FISA as an oversight tool.
So where do Clinton and Obama stand on this matter, within the context of debate questions? We don't know.
And, perhaps most importantly, why are there no questions addressing the matter of impeachment? Conventional wisdom tells us that Democrats run from the subject lest they threaten their election chances this November. But impeachment goes beyond the personalities of either George Bush or Dick Cheney. It directly relates to institutional health and integrity, as Scott Horton at Harper's persuasively argues. In his article, Horton cites the late "conservative Harvard legal historian and Supreme Court scholar," Raoul Berger, that the Congressional power of impeachment "constitutes a deliberate breach in the doctrine of separation of powers, so that no arguments drawn from that doctrine (such as executive privilege) may apply to the preliminary inquiry by the House or the subsequent trial by the Senate."
As Horton notes, "the Bush White House has put up enormous battlements in anticipation of what is coming ... [in their] assert[ion of] executive privilege."
The issue of executive authority and its abuse are obviously questions worthy of a debate setting. The Boston Globe's Charlie Savage thought so when he asked candidates about executive power. Barack Obama, responding to the questions, said "the American people need to know where we stand on these issues before they entrust us with this responsibility - particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration." (emphasis added)
Yet, again, no questions were asked about this issue.
Will we, before November, have a debate where such questions will be asked?
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