I'm a Believer

Hardly had I finished lamenting the decline of American political rhetoric than a very fine piece of work appeared from an unlikely source: Al Gore. His speech on the undermining of our freedoms under the Bush administration is closely reasoned and even eloquent. Full text here.

His speech at Constitution Hall calls the current situation a contitutional crisis, and I think he makes a solid case:

Congressman Barr and I have disagreed many times over the years, but we have joined together today with thousands of our fellow citizens—Democrats and Republicans alike—to express our shared concern that America’s Constitution is in grave danger.

In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power.


As we begin this new year, the Executive Branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses.

Gore reviews a number of past assaults on the Constitution, and how we were in each case able to reassert and even strengthen our rights. Most of these past assaults came in wartime, and all were rolled back after the war, or, in the case of the Nixon CONINTELPRO program, after the President's impeachment and resignation.

He talks about the illegal NSA wiretaps:

During the period when this eavesdropping was still secret, the President went out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.


But surprisingly, the President’s soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the President not only confirmed that the story was true, but also declared that he has no intention of bringing these wholesale invasions of privacy to an end.


At present, we still have much to learn about the NSA’s domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently.


A president who breaks the law is a threat to the very structure of our government.

My empahasis above. This threat was clearly recognized by the founders:

As John Adams said: “The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men.”


An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution – an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Usurpation of power is usually based on some real or perceived threat to the nation.

The President and I agree on one thing. The threat from terrorism is all too real. There is simply no question that we continue to face new challenges in the wake of the attack on September 11th and that we must be ever-vigilant in protecting our citizens from harm.


Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.


Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.

He discusses at some length the many legal weaknesses in the arguments the President and his men have advanced.

The tyranical claims and and deeds of Bush are not at all trivial.

For example, the President has also declared that he has a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that, notwithstanding his American citizenship, the person imprisoned has no right to talk with a lawyer—even to argue that the President or his appointees have made a mistake and imprisoned the wrong person.


The President claims that he can imprison American citizens indefinitely for the rest of their lives without an arrest warrant, without notifying them about what charges have been filed against them, and without informing their families that they have been imprisoned.


At the same time, the Executive Branch has claimed a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture in a pattern that has now been documented in U.S. facilities located in several countries around the world.


Over 100 of these captives have reportedly died while being tortured by Executive Branch interrogators and many more have been broken and humiliated. In the notorious Abu Ghraib prison, investigators who documented the pattern of torture estimated that more than 90 percent of the victims were innocent of any charges.

Those who dismiss these actions seem because they consider Bush an ally may be forgetting that someday these powers could be turned on them and theirs - if not by Bush by some later President whose politics they like less.

Most sinister is the circumstances in which the President has invoked extraordinary powers:

As Justice Frankfurter wrote in the Steel Seizure Case, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”


... we are told by the Administration that the war footing upon which he has tried to place the country is going to “last for the rest of our lives.” So we are told that the conditions of national threat that have been used by other Presidents to justify arrogations of power will persist in near perpetuity.


... we need to be aware of the advances in eavesdropping and surveillance technologies with their capacity to sweep up and analyze enormous quantities of information and to mine it for intelligence. This adds significant vulnerability to the privacy and freedom of enormous numbers of innocent people at the same time as the potential power of those technologies. These techologies have the potential for shifting the balance of power between the apparatus of the state and the freedom of the individual in ways both subtle and profound.