Election Fraud and the Justice Department

President Bush is now asking the Justice Department to do what the Ohio Republican Party could not get the Supreme Court to do--look into 200,000 new voter registrations that some have called fraudulent. Information on registration cards did not correspond with information in a database of voters and, as such, they look suspicious to some.

On its face, this appears to be reasonable. Except that we have three contextualizing factors:

1. George W. Bush's Justice Department has been the most notoriously partisan of any recent administration, and "voter fraud" was the entering wedge that U.S. attorneys were supposed to use to disenfranchise people who were predisposed to vote Democratic. In case anyone forgot, this brought down Attorney General Albert Gonzales and shamed the administration. It led James Bovard to call for Bush's impeachment.

2. It has been a long-time tactic of Republicans to set up as many roadblocks as possible to prevent registered Democrats from voting. The usual saying is that Democrats do a better job of registering voters and Republicans do a better job of getting those voters to the polls. Perhaps Democrats would be better about voting if they didn't find that their registrations had been "lost" or destroyed, as in Fulton County (my county of residence, by the way) where 70,000 new registrations were found in the trash.

3. We are eight days from an election. For Ohio Republicans to attempt to disenfranchise 200,000 new voters--and for the President to suggest an investigation at this point--smacks of a cynical last minute ploy to keep Democrats sitting next Tuesday. If nothing else, the President ought to maintain an air of impartiality in the execution of his official duties. But then again, this president has exhibited an unprincipled ignorance of our Constitution, when not treating it with outright contempt.

Palin, Biden and what does a constitutional office entail, anyway?

Palin and Biden did as expected. Both were feisty, Biden tried his best not to be condescending, Palin offered up lots of facts and figures to indicate she is fit for national office, and the two clashed on substantive issues. They also clashed on one constitutional issue: the position and role of the vice president.

The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.

Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"

This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:

Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

Huh? I'm not sure which founding father deserves credit for imbuing the office of vice president with "flexibility," but I'm sure he would be surprised to find this out. Of course, invoking the "wisdom" of the founding fathers is always a more political than intellectual argument, and as such we should not take that so seriously. In truth, Palin did not answer the question. This is a dodge that has become typical of her when she is cornered--she meanders, then tries to say something about her experience as a mayor or a mother. In this case, she went with mayor/governor, to highlight "executive" experience.

Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.

At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?

I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.

Torture, the CIA, and Conspiracy

Conspiracies are part of the paranoid's delusion. They are, also, very much a part of the American mindset. From John Winthrop's seventeenth-century claims that Massachusetts Puritans were beset by enemies plotting their destruction to Salmon P. Chase's 1850s allusions (not originally his) of the "slave power's" power over the northern government to Oliver Stone's curious historical reworking of JFK's assassination, conspiracy theories have been perennial.

I don't believe in them. Conspiracies are easy to piece together with circumstantial evidence but depend in the end on both a willingness to believe in rumor, the absence of direct evidence, and a kind of paranoia that makes them acceptable. We may jettison with safety now Winthrop's fears that the pope, all Catholics, and the Pequot Indians were conspiring to undermine the Massachusetts Bay Colony. Someday we may be able to do the same thing with JFK's assassination.

But this long-winded introduction does not mean to suggest that conspiracies do not exist. And the CIA has gone a long way in covering up a huge conspiracy to violate U.S. law, international norms, and human rights in Guantanamo Bay. I refer, of course, to its destruction of videotapes documenting harsh interrogation techniques at Guantanamo Bay in 2005.

Revelations that the CIA destroyed the tapes came months ago. But it is only now that the relevant due process questions are being raised. The government was under a court order to turn over relevant information in several cases when the CIA began destroying tapes. This willful violation of judicial authority will, of course, come with consequences. At the very least, the government's prosecution of alleged terrorists is now seriously in question. We must beware the state that destroys its own evidence. There is also the question of whether the agents who did this are criminally liable for their actions.

But there is a third problem with this. If the CIA was acting under general orders from the Administration, then we may be witnessing the most egregious misuse of executive authority by this president yet. Of course, no such evidence has yet come to light (to my knowledge). But given that there is significant evidence that "harsh interrogation techniques" (or whatever the euphemism may be) were certainly part of the executive plan on prosecuting the war on terror, then this may well be part of a design. And if it is part of a planned design, then it may be an impeachable offense.

To some degree, I am engaging in rank speculation. But Congress has yet to take serious action on the question of its constitutional responsibilities to contain a president who flouts the laws of the country so willfully. For this reason, it is reasonable to wonder whether this CIA action is simply more evidence (albeit indirect) that Congress is fast becoming the weakest branch of government. One might even wonder if this is part of, well, a design.

Now that would be a conspiracy.

human rights and constitutional conundrums

Consider the following hypothetical scenario: A senior intelligence officer is informed that the CIA has established secret prisons abroad that are holding suspected terrorists. He is further informed that the CIA (with the indirect blessing of the Bush administration) has decided to use waterboarding and other methods commonly deemed to be torture in the process of
interrogation. That same senior intelligence officer is then called on to testify to Congress in closed hearings. Under oath, that officer then reveals this information. The senior intelligence officer also intimates that he cannot reveal such knowledge publicly because it would violate federal law (as in publishing state secrets). Those congressmen and senators had themselves signed a secrecy pledge thus binding themselves not to reveal sensitive information. Should a senator or congressman in possession of such information blow the whistle anyway? Would they risk jail time for doing so?

It would certainly raise an interesting constitutional question. Article I, section 6 grants freedom of speech for national legislators, and this ought to be protection enough
from political or legal threats (hat tip to Marty Lederman on Balkinization for bringing this discourse.net post to our attention). Precisely what sanctions would a member of Congress face for raising these practices in debate?

The constitutional conundrum, though, is not the real issue. As we lead into the 2008 presidential election, the question of the United States' commitment to human rights will be a central matter, particularly where the rest of the world is concerned. Our candidates (repubs and dems) have erred on the side of jingoistic hysteria and like to rehearse "get tough" speeches and soundbites during the debates. Witness, for instance, the immediate negative reaction to Barack Obama when, in debate, he was asked by Brian Williams what the first thing he would do as president if a terrorist organization attacked the United States. Obama's response--that he would have an emergency response ready so we don't get caught in another Katrina--was deemed weak and offensive.

Outright offensive, however, is the shameless behavior of Mitt Romney. He has suggested in debates that we "double" Guantanamo. Shockingly, he refused to denounce waterboarding as torture. Which brings us right back to where we stand in the presidential election of 2008. Although the corporate American media refuses to address the issue of international human rights, we must as a nation force our presidential candidates to account. It is time, for instance, for the Democrats to state plainly where they stand on these important issues. Hillary Clinton has ducked and dodged the question for too long, as has John Edwards.

We should not forget that elections are themselves constitutional procedures. And that it is elections when the people can speak the most forcefully on particular issues. The elections of 1800, 1828, 1860 and 1936 were all such moments when the people gave voice to a particular constitutional vision. Precisely how we treat 2008 has yet to be determined. Perhaps we need more input and voice from the most important, but most oft forgotten, constitutional actors there are: the People.

Boumediene v. Bush

In what may be the most significant constitutional showdown of the twenty-first century thus far, a number of detainees at Guantanamo Bay are suing out a writ of habeas corpus. The writ's practical suspension in the name of the Bush administration's "war on terror" has been one of the most frightening--and least reported upon--issues alive today in the United States.

The Bush administration argues that habeas corpus simply does not apply to enemy aliens captured on the battlefield. Supporters of the administration point out that there is not a single such precedent in American or British law supporting exactly the fact pattern of Boumediene. Lawyers for the detainees have repeatedly pointed out that this is incorrect, if only because the common law writ of habeas corpus was not traditionally restricted to subjects (or in America, to citizens), and that notions of subjectship were simply not as well articulated as they are today.

The argument is of course much bigger than this. Few supporters of habeas corpus would argue that the writ should extend to the Guantanamo detainees if, for instance, the Bush administration treated them as true prisoners of war and extended them the protections of the Geneva Conventions. Supporters of the Bush administration are also forced to argue that the U.S. courts have no jurisdiction because the United States is not sovereign in Cuba and merely holds a lease for the military base. As absurd as this is on its face, the U.S. Congress has attempted to strip the courts of jurisdiction in these matters, which has subsequently forced great separation of powers questions on the Supreme Court.

Oral arguments before the Supreme Court can be found here. The set of consolidated cases that make up Boumediene v. Bush are well worth listening to and considering as a set of very serious historical problems. How far does the writ of habeas corpus apply? To what extent does the U.S. Supreme Court have the ability to countermand the executive and the legislative branches? And to what extent do political divisions on the court itself reflect different judicial outcomes? Oral arguments before the Court are wonderful ways for the justices to signal each other how they intend to vote and what they intend to argue. What kind of politics do we see here? It is an enormously important question as the imperial presidency rolls onward.

One issue, from a constitutional historian's point of view, is about just how much original meaning is controlling and precisely how it is recovered. One doubts that Justice Scalia's continued refrain "you can't find me one case where habeas was extended to an enemy alien" is relevant. It ignores the development of habeas corpus as a writ and, for that matter, fails to deal with the significant problems of today.