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THE HIDDEN STATE STEPS FORWARD
BY JONATHAN SCHELL
JOHN OVERMEYER
TALKING ABOUT IMPEACHMENT
The dwindling circle of rightwing defenders of the
Bush/Chenev Presidency would have Americans believe
that only the most reckless partisans would even consider
the prospect of censuring or perhaps even impeaching the
President and Vice President. But the prospect of officially
sanctioning Bush and Cheney, as has now been proposed
by U S. Representative John Conyers (Michigan), the ranking
Democrat on the House Judiciary Committee, is gaining ground
in unexpected quarters.
Nation magazine editor and publisher Katrina vanden
Heuvel argues that, as 2005 gives way to 2006, the outrage level
is rising. “The I word,” writes vanden Heuvel, “has moved from
the marginal to the mainstream.” Editor & Publisher magazine,
the journal of the newspaper industry, agrees, pointing out that
a “sudden outbreak of anger or candor has been sparked by
the uproar over revelations of a White House-approved domestic
spying program."
Indeed, the outbursts of anger and candor that once
came only from the left are now coming from across the political
spectrum from one of the nation's most respected academics,
from a courageous former White House aide, from a conserva
tive business journal and from a growing number of (Americans).
The academic is Jonathan Turley, the George Washing
ton University School of Law professor who is widely recognized
as one of the nation's most learned experts on civil liberties and
surveillance issues Turley says that, with his decision to have
the National Security Agency secretly wiretap the phones of
American citizens, the President not only “violated federal law”
but raised "serious constitutional questions of high crimes and
misdemeanors."
High crimes and misdemeanors are, of course, the raw
material of impeachment. And Turley is not the only one speak
ing up about them. Former Nixon White House counsel John
Dean has long argued that the President and Vice President
have committed impeachable offenses that are worse than those
that led to the Watergate era effort to impeach President Richard
Nixon
' ■ i' \
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What’s really remarkable, and heartening, is the fact that
the concerns of Turley and Dean' áre béirig’écRóéd’ by some
traditionally conservative voices.
Barron's, the business journal that is published by the
Wall Street Journal and has a track record of erring on the right
in most policy debates, argued in a December 24 editorial:
Willful disregard of a law is potentially an impeachable
offense. It is at least as impeachable as having a sexual esca
pade under the Oval Office desk and lying about it later. The
members o f the House Judicial Committee who staged the
impeachment o f President Clinton ought to be as outraged at
this situation. They ought to investigate it. consider it carefully
and report either a bill that would change the wiretap laws to
suit the President or a bill of impeachment.
“It is important to be clear that an impeachment case,
if it comes to that, would not be about wiretapping, or about a
possible constitutional right not to be wiretapped. It would be
about the power o f Congress to set wiretapping rules by law,
and it is about the obligation o f the President to follow the rules
in the acts that he and his predecessors signed into law."
The evidence shows that serious wrongdoing has
occurred. And those responsible need to be held to account
not just by academics, former White House aides and national
publications but by the citizens who can persuade members of
Congress to become the watchdogs on executive wrongdoing
that the founders intended.
-E D IT O R IA L (12/30/05)
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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 Intelli
gence 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 30 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 o f 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 water
boarding, 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 definit
ions of the word. He has asserted a wholesale right to lock up
American citizens and others indefinitely without any legal show
ing 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 dictator
ship, 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 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 Dilulio, 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, it 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.
Jonathan Schell is one of the United States' great journ
alists. His reporting from Vietnam for New Yorker magazine has
been called the “classic reporting on the Vietnam War.” His book
The Village of Ben Sue, is perhaps his most memorable, in which
a quote from an American Army Major became an indelible icon
of the war and a fixture of contemporary language: “We had to
destroy the village in order to save it.” He is also author of The
Abolition, The Fate o f the Earth, and The Time o f Illusion. He is
currently The Nation Institute's Harold Widens Peace Fellow, and
writes the magazine's “Letter From Ground Zero’ column, from
which this article is reprinted
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