Congress Acts Against the “Imperial Presidency” For Presidents’ Day

As you enjoy your Presidents’ Day weekend and subsequent happiness, you ought to consider the ironic twist of history that occurred last week in Congress. Just before the Presidents’ Day weekend, the House of Representatives stood up – for a moment at least – against George W. Bush, the embodiment of the Imperial Presidency. The House – well, the House Democrats – refused to accede to Bush’s demands that it pass the so-called “Protect America Act” which would have continued the expanded surveillance powers plus Bush’s long-sought-after goal: immunity for the telecommunications corporations.

Not only did House Democrats refuse to bend on that issue, it issued Contempt of Congress citations against two Bush officials, White House Chief of Staff Josh Bolten and former White House Counsel, Harriet Miers. What follows are the details of a good week for the Constitution.

Last Week In Congress: Good for the Constitution, Bad for George Bush

It was an exceptionally bad day for the White House on Thursday, February 14th – Valentine’s Day. But the entire legislative week had been a wild ride for George W. Bush & Company. It didn’t start out that way.

Tuesday, Feb. 12th: First, the Senate passed by more than a two-to-one margin its version of Protect America Act (Senate Bill No. 2248) that does allow warrantless surveillance on communications passing through US switchpoints that is supposedly foreign, as well as allowing the secret FISA court to issue blanket warrants for communications between US and foreign locations; the Senate version also explicitly grants retroactive immunity to the telecom companies. The Senate passed it by a vote of 68 to 29, with both Senators Boxer and Feinstein voting ‘no’ – against the bill. (Although on a separate vote to allow an amendment against retroactive immunity for telecoms – which lost – Feinstein voted against it.)

Wednesday, the 13th, it did get better. By 51 to 45, the Senate approved legislation that requires CIA personnel to obey the Army Field Manual’s ban of waterboarding, defying Bush’s threat of a veto. The same vote also requires US adherence to the Geneva Conventions rules for handling prisoners of war. (John McCain, who just last November, was against waterboarding, voted against the ban on waterboarding.)

Thursday, Feb. 14th: – Valentine’s Day, House Democrats finally called George Bush’s bluff. Bush had been demanding that Congress pass authorization for his broad warrantless surveillance and telecom immunity bill, the “Protect America Act”. Miraculously for the first time, Democrats stood up to Bush and refused to pass what many see as unconstitutional. It came up as a vote to extend by a mere 21 days the version of the FISA enacted last August. Democrats were willing to put off debate and just renew it for 3 weeks. But the White House’s position was that they opposed any extension and demanded the straight passage of an identical House-version of the Senate bill. Plus, unless this version was passed, the White House threatened, Congress was leaving the country without protection against terrorists. This is what Keith Olbermann called Bush “throwing the baby out with the bathwater.”

House Speaker Pelosi and House Intelligence Committee Chairman Reyes both countered Bush’s allegations that the expiration of the bill would damage the government’s continuing and necessary surveillance of foreigners. They described Bush’s claims as irresponsible and false fear mongering. From Chairman Reyes:

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won.

In case you were wondering, we are still safe even with the expiration of the Protect America Act, which ended this past weekend. By statute, existing surveillance efforts are allowed to continue for a year, with related new surveillance under existing efforts able to be added during that period, and even unrelated new surveillance is allowed under the pre-existing FISA provisions — all which remain in effect after the Act expired. And – Bush’s biggest worry – the liability of the telecom companies – is still okay, for as long as the telecoms follow lawful FISA requests they are, as they’ve been, immune for their acts.

When Bush and the White House demanded that House Republicans not vote for an offer by Democrats to extend the Act, and then threaten Congress that they were leaving the country defenseless if they didn’t pass the Act with the explicit immunity for the telecoms, his fear mongering became very blatantly obvious.

Bush was again crying “Be afraid! Be very, very afraid!” It was so obvious that mainstream MSNBC commentator Keith Olbermann declared “We will not fear any longer!”, “and we will not fear George W. Bush,” and “nor will we fear because George W. Bush wants us to fear.” [For the rest of Keith Olbermann’s fine prime-time rant against Bush, go here.]

Valentine’s Day Contempt of Congress

… More Thursday, February 14th: The other victory for the Constitution on Valentine’s Day, was, of course, the House approval by 223 to 32 the filing of criminal Contempt of Congress citations against Josh Bolton and Harriet Miers. Bolton and Miers were being found in contempt because of their refusal to comply with House subpoenas concerning the alleged systematic infusion of partisan politics into the hiring, firing and prosecutorial decisions in relation to the firing of nine United States Attorneys in 2006.

Just before this vote, most of the Republican members of the House staged a “spontaneous” walk-out, and held a press conference at the foot of the Capitol steps, in protest of the Contempt of Congress citations. During this obviously planned and staged protest (the podium and microphones were mysteriously all set up, and most of the women GOP’ers worn red), Republican leaders complained that the Dems were pulling “a political stunt.”

Back inside, there actually were two resolutions – one authorized the U.S. Attorney in Washington, D.C. to bring criminal contempt charges against Bolten and Miers to a grand jury and another that authorized the House general counsel to bring a civil suit against the White House in order to deal with the issue whether the testimony of Bolten and Miers should be covered by executive privilege. The twin resolution received the backing of 220 Democrats and three Republicans (Ron Paul, the antiwar presidential candidate from Texas; Wayne Gilchrest, who lost his seat in a Maryland primary Tuesday; and Walter Jones of North Carolina). The citations charge Miers with failing to testify and accuse both her and Bolten of refusing Congress’ demands for documents in the investigation.

The move was opposed by 31 Republicans and one Democrat (Texan Henry Cuellar, who backed Bush for reelection in 2004 and this year backs Hillary Clinton.) Because many of them participated in the “walk-out”, 163 Republicans were recorded as “not voting,” including Bilbray, Hunter and Issa. Ten Democrats also didn’t vote.

It was the first time in 25 years that a chamber of Congress has voted on a contempt of Congress citation.

But what’s this ruckus all about?

You Remember the Constitutional Crisis, Don’t You?

You know back before the Surge in Iraq, before the start of campaign 2008 election cycle and all the primaries, way before the holidays, and before the mortgage / foreclosure crisis was hitting, we were in a Constitutional Crisis. Remember? The firings of those nine US Attorneys, the resignation of Attorney General Alberto Gonzalez.

The Bush White house had fired the US Attorneys – including San Diego’s Carol Lam – for highly improper reasons (and by the way – Carol Lam was not exactly a “darling” of the Democratic Party). The US Attorneys who were fired had, apparently, not satisfied the White House’s demands for pursuing election fraud charges against Democrats – even iwhere there was no merit, and had been pressured not to pursue legitimate cases against Republicans. A good number of attorneys had bent to the pressure. But we and Congress don’t know who or how many – yet.

Remember the investigations that followed? Under oath, Alberto Gonzalez, the Attorney General, and other characters out of the White House made misleading and false statements to Congress. The White House refused to allow Miers and Bolton to testify on the grounds of “executive principle,” although Bush offered to allow them to testify, but only if their testimony were not under oath. The White House still refuses to surrender documents related to the firings, having “accidentally” destroyed a good amount of pertinent evidence.

The stage is set up for the constitutional show-down, all amidst the last months of the electoral campaign. While the Constitution is at stake, we have to select who we’d like to see being its guardian. Let’s not be simply observers in this process.