Tacitus, writing of the first Senate meeting after the death of Augustus Caesar (Annals 1.8):

Messala Valerius further proposed that the oath of allegiance to Tiberius should be renewed yearly, and when Tiberius asked him whether it was at his bidding that he had brought forward this motion, Valerius replied that he had proposed it spontaneously, and that in whatever concerned the State he would use only his own discretion, even at the risk of offending. This was the only style of adulation which yet remained.

The pathetic and quite ridiculous record of the Roman Senate's capitulation to imperial power is rife with analogues to the collapse of the US Congress during the last two generations in matters of national security and international affairs. And this without the Romans' excuse that they feared for their lives.

During the Principate, the Roman Senate essentially struck a deal with successive emperors. Caesar could consolidate actual power and govern as he wished as long as Senators retained some outward signs of power and the status that went with the dignity of holding high office. The appearance of being consulted occasionally by the emperor, the public repute that came from "debating" matters of state, the feeling of importance, the Senators were willing to exchange for actual independence. Rather than try to check the emperor's aggrandizement of power, they merely sought to be co-opted. "Deliberation" meant finding out what the commander in chief of the armies wanted and giving it to him - occasionally giving even more than he asked, just to flex the Senate's atrophying muscles.

Any fool of a Senator who made the slightest show of actual independence was immediately undercut by his fellows. So eager were they to win the favor of Power, and so painfully aware of the network of spies that potentially knew of every word they spoke.

All of this is brought to mind by the supine behavior of the US Congress during the last week, especially its precipitous abandonment of the Fourth Amendment in exchange for mere assurances that the President will have to consult them now and then in the future about his rationales for spying upon citizens without warrant. To be consulted is to be important. It signifies that Congress still matters - although (or rather, because) it balks at nothing it is asked to endorse.

This explains so much in the record of Congressional Democrats that voters find perverse. Members of Congress are intent above all on protecting the fragile illusion that they still wield power. To dare a showdown with the president on any issue of importance is to risk shattering the appearance of power and hence their self-image. Rather than try to check the president's aggrandizement of power, too many members of Congress merely seek to be co-opted.

But isn't their climbdown on FISA a profound humiliation? Sure, but I'd bet they can rationalize it away.

This report, about the Bush administration's arrogation of unchecked power over terrorist-suspects, nicely frames several related issues. First, it highlights how the federal courts, unlike Congress, have repeatedly rebuffed Bush's power grabs in obvious and principled fashion. While the administration was trying to monopolize certain powers that properly belong to the judiciary, it was not able to throw any sops in the direction of the courts. Naturally the courts resented the Executive's aggrandizement and saw nothing to gain by rolling over for the President.

The article also points out that the Bush administration sometimes refused to pull the rug out from under the courts in the tried and true way - by getting Congress to legalize whatever lawlessness it was engaged in. Here is an example of WH pigheadedness over the due process case of Yaser Hamdi from 2004.

Jack L. Goldsmith...[described] a White House meeting he attended... in which Paul D. Clement, of the solicitor general's office, warned that the administration might lose the case before the Supreme Court, despite its "solid legal arguments." Goldsmith said he suggested that the administration seek a congressional sign-off for the entire detention program, something that would make it harder for the court to strike down the program.

Goldsmith's view was supported by Clement, then-National Security Council lawyer Bellinger and Pentagon general counsel William J. Haynes II -- but not, Goldsmith said, by David S. Addington, then legal counsel to Vice President Cheney.

"Why are you trying to give away the president's power?" Addington asked, according to Goldsmith, who explains that Addington thought it might suggest that the president could not act on his own.

Why concede in any way that the president cannot make something legal just by willing it so? That question has been the leitmotif of the multi-year quest by Addington and Cheney to create an all powerful Unitary Executive.

And it brings us back to what I presume is the primary rationalization among members of Congress for their cowardly FISA legislation. They can claim, almost with a straight face, to have won the larger constitutional struggle by tying the Executive down to an "oversight" process that involves both the Legislative and Judicial branches.

Rockefeller, chairman of the Senate Intelligence Committee, said the bill "will prevent any repeat of warrantless surveillance undertaken by the president and will hold our government accountable for its actions, past and future, through strengthened court review and congressional oversight."

By a delusion such as Rockefeller's, the WH has conceded power by agreeing to consult very occasionally with a few representatives of the other branches about the warrantless wiretapping that it alone will direct. It is a delusion, and very much in line with the imperial Roman Senate's illusions of grandeur.

Of course it is a delusion, what could be clearer? For the US Congress is rushing once again to give the President everything he asked for, and more.

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute. “I think the White House got a better deal than they even they had hoped to get,” said Senator Christopher Bond, the Missouri Republican who led the negotiations.

The following is a slightly altered crossposting from ePluribus Media; the majority of the text posted both there and here is an almost-verbatim copy of the response I'd made in a discussion thread on The Civil Discourse Society, a Delphi forum.

One of the biggest abuses of Presidential authority by the Bush Administration has been the use and misuse of Presidential Signing Statements in order to create and extend a precedent for the President's capacity to "legislate from White House" -- above and beyond the President's inherent authority to "take Care that the Laws be faithfully executed."¹

Below, I'll provide some additional context pertaining to the use of signing statements and some excerpts from various government documents, including the US Constitution and the Georgetown Law Faculty Blog, which examine the popular justifications currently in support of Presidential signing statements  and why the Bush Administration's application of them is so objectionable.

IANAL: I am not a lawyer, nor do I play one on TV and I did not stay in a Holiday Inn Express last night.

Not only does the Bush crime family assume that it can ignore congressional subpoenas, apparently they also don't have to cooperate with congressional auditors from the Government Accountability Office.

Who do those auditors think they are, anyway? -- questioning the operationof one of Bush's cabinet agencies. What nerve!

                               

Senator Barack Obama supporters are very passionate about his words and phrases, quoting them back to us to try to convince us that we should vote for him, things like "the fierce urgency of now" and "I'm asking you to believe.  Not just in my ability to bring about real change in Washington.....I'm asking you to believe in yours."  

It makes me feel very uneasy because he seems so out of touch with the last decade of our lives; as if he is unaware that we are the hardened veterans of many battles over the past 7 years; the survivors of the many marches, protests, arrests, and "free speech zones" that we have endured trying to bring that "fierce urgency" of change about long before Senator Obama was elected to the Senate in 2005.  It makes you wonder where he was and what was occupying his mind that he speaks as if we have been waiting, and waiting, and waiting for someone to arrive to save us instead of fighting these urgent battles to save our country pretty much on our own. It flirts with condescension and it makes me wary; we know that we hear him but I’m not so sure he hears us.

One of the most popular self-conceptions of avid blog readers is that we're "high-information voters," that is, that we immerse ourselves in the day-to-day political developments reported in the traditional media, as well as the discussion and analysis that takes place in the blogosphere. We actively make ourselves aware of what's happening in the political world, and make our voting decisions based on our own internal analyses of this tremendous volume and flow of information.

When it comes to evaluating the legacy of the George W. Bush "administration," for instance, we're all too well aware of the dark record, even if the traditional media have been less than dogged in its daily pursuit of the accumulated weight of Bush's departures from our traditional understandings of the constitutional order and that nebulous metric, "The American Way."

Consider what we've witnessed over the years:

• the emergence of the use of torture
• secret prisons
• indefinite detention
• the denial of habeas corpus
• warrantless eavesdropping
• illegal domestic spying
• the politicization of the administration of criminal justice and of civil rights
• the claimed unilateral nullification of enacted legislation
• the claim that the failure by the president to comply with Executive Orders amounts to a secret and unwritten revocation or revision of such orders
• dictation of the terms of legislation by the president to Congress
• dictation of the terms of appropriations bills (heretofore known as the "power of the purse" by the president to Congress
• the declaration that federal judges are incompetent to rule on questions touching on "national security"
• the refusal of the "unitary executive" to permit the other branches to test its claims of "executive privilege"
• the refusal of the Justice Department to prosecute contempt of Congress charges against executive branch officials
• the staggering increase in the frequency of use of the "state secrets" privilege to block access to the courts
• the systematic suppression of scientific evidence regarding "administration" policies through the manipulation of administrative procedure

And of course, much, much more that I'm probably missing in my off the cuff recitation.

But the point of that recitation is this: the current "administration's" penchant for secrecy and for pushing all limits on the separation of powers in every conceivable direction to the breaking point has made us all low-information voters, no matter how hard we try to stay current with the news.

How so? Well, in November of this year, we'll all be asked to cast our ballots to elect the 44th President of the United States, as well as the new 111th Congress. And while we've all diligently studied the issues, candidate positions and other information available, what we don't know -- and it has been the design of the Bush "administration" not to let us know -- is the actual job descriptions for the offices we'll be asked to help fill in November.

Is Barack Obama the best person for the job? Hillary Clinton? John Edwards? Or for that matter, Mitt Romney or John McCain? How about Nancy Pelosi? Dan Mark Pera? [correction: 3 a.m. writing -- Mark Pera, who's running against incumbent Blue Dog Dem Dan Lipinski in IL-03] Tom Allen? Mark Warner?

The fact is that the information we have access to sheds light on what kind of track record and vision for the future these candidates bring to the table, but may no longer be accurate indicators of what they'll be able to do if they win election.

Are the people we elect to Congress going to have the "power of the purse?"

Is the president we elect going to have the power to unilaterally nullify enacted law?

Will the 111th Congress have the "subpoena power" we were assured that the 110th would have, but didn't?

That's has been the design of the Bush "administration." To leave us with less understanding and less information about how our government works. All the better to run roughshod over us, while we reel in the confusion and disbelief. This is a giant step backwards from the progressive gains of the post-Watergate era. The era that brought us the Federal Elections Commission to combat the influence of unregulated, secret campaign slush funds. The era that brought us FISA, to combat the use of the national security apparatus to monitor, cow and intimidate the domestic political opposition. The era that brought us the War Powers Act (which admittedly might not be considered properly "post-Watergate," depending on how you define that), to combat the limitless and unilateral use of presidential authority to commit our troops to combat and keep them there in the face of overwhelming political opposition.

But that's where the Bush "administration's" extremism has left us. Instead of asking whether one or another of the candidates is the best person for the job, we have to step much further back, and ask, "what's the job?"

The extent of that damage is almost beyond comprehension.

The story so far: CIA tortures terror suspects, videotapes it, tells 9/11 Commission tapes don't exist, tells courts tapes don't exist, tapes do exist, court orders government not to destroy tapes, government destroys tapes.

And now?

Judge Won't Inquire Into CIA Tapes Case
AP NewsBreak: Judge Refuses to Investigate the Destruction of CIA Interrogation Videos
By MATT APUZZO
The Associated Press

WASHINGTON

A federal judge refused on Wednesday to delve into the destruction of CIA interrogation videos, saying there was no evidence the Bush administration violated a court order and the Justice Department deserved time to conduct its own investigation.

The decision by U.S. District Judge Henry H. Kennedy was a victory for the Bush administration, which had urged the courts not to wade into a politically charged issue already being investigated by the Justice Department, CIA and Congress.

The CIA has acknowledged last month that in 2005 it destroyed videos of officers using tough interrogation methods while questioning two al-Qaida suspects. Lawyers for other terrorism suspects quickly asked Kennedy to hold hearings, saying the executive branch had proved itself unreliable and could not be trusted to investigate its own potential wrongdoing.

Kennedy disagreed, ruling that attorneys hadn't "presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead and live up to the assurances it made to this court."

Oh yeah! Of course! The DOJ is a fantastic self-policer! Absolutely!

After all, the new "Attorney General" cardboard cutout they have standing in place for David Addington says he's got his best guy on the case. So fantastic! Nothing to worry about!

Just ask Boston's chief federal judge, Mark L. Wolf how they're doing:

The chief federal judge in Boston has urged the new US attorney general to crack down on prosecutors who commit misconduct and to force Justice Department lawyers to be truthful in court....

"The [Justice] Department's performance in the Auerhahn matter raises serious questions about whether judges should continue to rely upon the department to investigate and sanction misconduct by federal prosecutors," wrote Wolf, who last July, after expressing frustration with his punishment, took the unusual step of asking the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against Auerhahn.

Whoops! Who would have guessed it? The DOJ has a lousy track record in policing itself, and the rest of the "administration." What a surprise!

Of course, being surprised by that requires you to have ignored the fact that the DOJ has introduced an unprecedented level of politicization into the department, hiring and firing U.S. Attorneys based, it would appear, on their willingness to prosecute flimsy cases against political enemies, and drop strong ones against Bush cronies.

Oh, and the fact that they quashed and eventually shut down their own Office of Professional Responsibility's investigation into the chain of events that led to the authorization of the illegal domestic wiretapping programs that led Alberto Gonzales and Andy Card to try to strong-arm John Ashcroft in his hospital bed.

Oh, and the fact that they are also being sued for destroying five million possibly as many as 10 million White House e-mails, in violation of the Presidential Records Act, and are in court arguing that they can't be sued because the Presidential Records Act doesn't apply to... the President.

Oh, and that the "administration" has previously lied to federal judges about the very existence of these tapes.

But other than that, Mrs. Lincoln...

Now, back to Judge Kennedy:

Kennedy, a former prosecutor who was appointed to the bench by President Clinton, said he had been assured that the Justice Department would report back if it found evidence that a court order had been violated.

"There is no reason to disregard the Department of Justice's assurances," Kennedy said.

Oh my God, yes there is.

Consider that the government's case that it didn't violate the order is that the order said they couldn't destroy tapes of torture sessions at Guantanamo, but it says these tapes were torture sessions from a different, secret prison.

Nah, no reason to disregard the DOJ's assurances, right? Jeebus Christmas!

Not that it would matter much, anyway. Consider, too, how the DOJ regards judicial oversight (hint: no better than Congressional oversight):

Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who "apply an activist philosophy that stretches the law to suit policy preferences."

Isn't that precious the way Gonzo said they should defer to Congressional will, too? We all know, of course, what Congressional will should defer to, right? Why, Presidential will, naturally! So really judges generally should just go ahead and defer to the will of the president. Thanks!

So that's the news from Article III. Article II says STFU. The same goes for Article I, by the way.

But hold on, what's this?

House Intelligence Committee chairman Silvestre Reyes told ABC News today that he will ignore the Bush administration's request to drop its investigation of why CIA interrogation tapes were destroyed.

"This is an administration that frankly does not have a good track record of policing itself," Reyes said. "We intend to go forward and issue subpoenas next week because we are a whole equal branch of government."

After telling Congress to get out of the way, the Justice Department took the highly unusual step of telling the same thing to a federal judge.

Yes, as covered earlier by smintheus, House Intel chairman Silvestre Reyes gives the "administration" the finger on this one. And, well, you know what the judge did.

So that's the good news. Now for the hard part. Reyes and his committee have begun issuing some of those totally awesome, freedom fightin' subpoenas we've all heard so much about. All we've gotta do now is... enforce 'em.

Remember back in December when Congress folded on Iraq (again) and then skipped town? Well, one of the other things they skipped town on was voting to actually try to enforce some of those subpoenas that the "administration" laughed at six months ago. They're coming back later this month, though. So I'm sure it's steel cage death match time any day now.

Frankly, I always thought there were too many articles in the Constitution anyway. Why read three when just one will do?

No, not him. The Bush Administration's contributions to history can be summed up nicely with the Dick Cheney quote to Senator Leahy on the floor of the US Senate:

"Go fuck yourself."

I mean the other President who's Dad was President, John Quincy Adams. Movie fans will remember the role in the mostly historically accurate Spielberg movie Amistad, in which Anthony Hopkins again makes you forget that he's Anthony Hopkins. After his presidency, Adams served in the US House of Representatives and was known as a friend of the Abolitionists. In one of his greatest scenes, Hopkins captures the intensity and genius of former president Adams when he argued for the defendants in the case of United States, Appellants, vs. Cinque, and others, Africans, captured in the schooner Amistad.

Today, Senator Leahy released a letterto AG nominee Mukasey in which he outlines ways that everybody can get along.  While the tone of the letter is of cooperation, the guts of the letter indicates capitulation.  Let's look at the 3rd to last paragraph before closing:

In connection with these matters the Judiciary Committee has been seeking the historical legal analysis of the Department of Justice and this Administration.  We have made numerous requests and have even had to subpoena the FISA documents.  I want to know whether you will work with us and provide those materials so that we can examine the legal justifications that have been utilized by this Administration to excuse its conduct

(emphasis mine).

Yes, an overly used, tired metaphor.  However I find it very apt to the role of the Executive branch.

We are all responsible for who is playing in this game.  We, the voters, are the GM's who put Bush on the field.  Congress' are the officials who can't seem to do their job, that is, holding the players within the boundaries and rules of the game.

You really shouldn't hate Bush, you should hate the game that not only allows someone like Bush to take the field, but allows them to continue to break the rules set forth hundreds of years ago, by the founders of this game.

My fellow Vermonters - we need to be calling Senator Leahy to tell him to reject Ted Olson if nominated as attorney general.  Kagro X over at The Next Hurrah has a terrific piece detailing why Olson would be a disaster for the enforcement of subpoenas and for checks and balances, as required per our Constition.

My open letter to Senator Leahy is after the jump...climb on board after you've read it and call Senator Leahy's office.

Washington: 202-224-4242
Burlington: 800-642-3193 (toll free for Vermonters)
Montpelier: 8/02-229-0569

Well, there are things I want from you.  Maybe instead of telling me what you will do, you should ask me what I want.   And not just me, but all the voters whose support you seek.

Perhaps you will find my "demands" unreasonable.   If so, you should be able to explain why.  

I do want you to be able to appeal to me for the positive things you will do on behalf of this nation and the people who live within its boundaries.  I hope you will have aspirations for your time in office that will uplift us, and not seek to obtain power by attempting to scare us into abandoning our freedom in the name of security.  

What I have listed below is far from exhaustive.  It is what I want, because  after the presidencies since Nixon I fear a dangerous imbalance of power in our governmental structure.  These issues are to me critical, and necessary.

I'm going to entertain a certain conceit in this diary; the conceit is that my perspective as a non-American (Canuck) allows me to observe American problems in a way you cannot yourselves easily see.  Not that I am gifted in any unique insight, just that it is always difficult to self-diagnose our own flaws.

Here goes:  The reason you are unable to prevent Bush from continuing to slice away civil and human rights is that Americans have come to complacently believe the constitution defends itself.  That there is some kind of inherent force of nature that resists erring Presidents.  As such, for far too long, there has been no one playing Offence in defence of the Constitution.  That's my perception.  Americans seem to believe it always worked out before, so it somehow will again today.  Many here and elsewhere in the netroots are awake to the danger, but not yet the populace at large.

In Federalist No. 12, Alexander Hamilton wrote:

In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade… The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country.

Today, "contraband trade" would be illicit substances including cannabis. To create laws that call for the confiscation of property, mandatory minimum sentences, the power to put to death for the use and possession of cannabis is "intolerable in a free country."

Of course there are the obvious painful backdrops to last night's cave-in by the Dems on domestic spying, such as the White House officials currently in contempt of Congress for refusing to even show up for subpoenas, the House passing an energy bill yesterday (minus CAFE standards) hours before the cave-in that Bush already says he'll veto, and a Justice Department actively obstructing investigations into the clearly illegal NSA spying that has already occurred, but the two back to back late night bills last night seem to say it all right now ...

From Schmitz Blitz

The home of Senator Ted Stevens (R-AK), former Chairman of the powerful Senate Appropriations Committee, was raided by FBI and IRS agents yesterday as a part of a corruption probe.

It's time to stand up and say ENOUGH! Toward that end, I've created a new Meetup group. After a week of working with Tammy of Meetup.com, who has been a great help, I think it's finally ready.

Enough SF http://forthepeople.meetup.com/...

This is the first group in a new topic which Tammy and I worked to come up with: For the People http://forthepeople.meetup.com/

Join me below the fold for more info and background.

July 23, 2007
The Honorable John Conyers, Jr., Chair
House Committee on the Judiciary
Fax: 202-225-0072

Dear Chairman Conyers,

 Probably more than most, you are obviously aware of the egregious pretensions of George Bush and Dick Cheney to virtually unlimited executive power at the expense of the legislative and judicial branches. Over and over again George Bush, Dick Cheney, and their agents have told the country that the presidency is above the rule of law, indeed that the president is the law unto himself, subject to check by nobody.

 I am old enough to have lived through Tricky Dick's assault on the Constitution. I agree with John Dean that the Bushites are much worse.