Bush Head Located

This morning, George W. Bush, who has a history of colon polyps, had another colonoscopy done and some more polyps were removed. Under the 25th Amendment to the US Constitution, Bush transferred the powers of the Presidency to Dick Cheney for about two hours. Since that Amendment was adopted after the Kennedy assassination, this is the third time it has been used. Bush did it once before during a 2002 colon screening, and Reagan did it once to Bush I during a surgery.

History may eventually reveal secret abuses by Cheney during his brief reigns. But of more current interest are the credible rumors that with this colonoscopy, Bush’s head, the whereabouts of which have long been in question, has been located.

Filibustering Iraq

The Republican minority blocking Senate voting on Democrat proposals for pulling back American involvement in Iraq is using a filibuster to prevent action being taken. Under Senate rules, 60 votes are needed to force a vote on such a proposal, and there may actually be enough Republicans who agree with the Democrats to reach that number. But some of these Republicans, supposedly out of respect for the Senate rules on unlimited “debate” and in loyalty to Senate Republican leaders and to Bush, are not willing to let the proposals come to a vote. It is also possible that some of these Republicans are talking out of both sides of their mouth, telling their constituents that they are opposed to this unpopular war, but telling party leaders they actually continue to support it.

Filibusters have no constitutional basis; they are solely a creation of Senate rules. The Senate indulges a fantasy of being a wise deliberative body which makes decisions only after extensive debate. The reality is that Senators all have strong ideological views and there is little Senatorial deliberation or debate. Compromises and vote trading (known as log rolling) are the ways close legislation gets passed. Filibusters can be rationalized in two ways. The first is that a minority position on an issue may be held with such a depth of conviction that the minority could not in good conscience and as a matter of principle ever allow the position to be lost. This rationale implies that today’s majority understands that they might be tomorrow’s minority, and therefore respects the minority filibuster right out of enlightened self-interest.

The number of filibusters (and threats of filibusters, which can be just as effective) has increased because many Senators now claim deep convictions, better consciences and stronger principles - at least as a legislative tool. This points out the second rationale for the filibuster, that it is simply a super-majority requirement that can be employed at will. While the first rationale might arguably have some heroic imagery such as Jimmy Stewart in “Mr. Smith Goes to Washington”, the more accurate picture is of a Southern Senator protecting Jimmy Crow from civil rights legislation. [This short US Senate article notes the historic 1964 vote ending the filibuster of the civil rights bill, the last speaker in opposition to the legislation being Senator Byrd from West Virginia, who is still sitting in the Senate].

The filibuster, like terrorism, is a tactic. In fact the word traces back to the Dutch and basically means piracy. The House of Representatives very early adopted rules limiting debate in order that matters could be brought to a vote. The Senate should do the same. The Constitution has sufficient checks and balances to protect the legislative process including: House member being concerned for re-election every two years; Senators being more insulated from the polls by six year terms; both chambers having to agree on legislation to be sent to the President; Presidential veto power, requiring 2/3 vote of both chambers to overturn; and Supreme Court review to determine constitutionality.

The current debate over the Iraq occupation is being delayed by Senate filibuster, but the real delay on Iraq comes from the White House. Even if the Senate had no filibuster and both chambers agreed on a measure to send the President, he would veto it. Since the Vice-President has no elective aspirations, there is no pressure from him to make the President do what the people want. (One of the many negative lessons from the Bush-Cheney years is the danger of having both a lame duck President and Vice-President; it might be advisable to always have a Vice-President with elective ambitions). There is not going to be a 2/3 majority in either chamber to overturn a Bush veto, because as unpopular as the occupation of Iraq is and as many more of our soldiers die and as much more of our money is wasted on the fiasco, not enough Americans are willing to threaten their Representatives and Senators with voting them out of office. If those being killed included draftees, the threats to Congress might be great enough to bring an overturn and maybe even to prevent a veto in the first place. Another lesson might be that any future Congressional authorization of the use of military force include a requirement that a significant percentage of those in combat must be draftees.

As stated here before, I believe the occupation of Iraq will continue much the same as now, until Bush is out of office. General Petraeus is not going to say his plan is a failure or he failed in executing it. Bush will not become reasonable. Congress will not force change through legislation and veto overturn. The American people have turned their attention to who will be the next President, and are not willing to force Congress to end the occupation, perhaps because they believe that even if Congress joined the people in telling Bush to end the occupation, Bush would continue to defy Congress and the people - and impeachment would take about as long as Bush has left.

Executive Privilege

There is nothing in the US Constitution specifically giving the President or Vice-President a privilege from having to disclose to Congress information regarding advice received. There has been little claim of such privilege throughout our history and little litigation of the subject resulting in any Court guidance. The most famous case was against Nixon during Watergate, and the Court agreed such a privilege arises inherently from the nature of the executive office, but that the privilege is quite limited. I have not researched the case law or scholarly discussions of the privilege, but I do want to comment on a fundamental premise in the Nixon case and on two examples of claimed executive privilege from the Bush-Cheney administration - the secret Cheney energy task force and the replacement of US Attorneys.

The premise stated by the Court in the Nixon case was, “experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.” Let’s look at that premise more closely. The Court says that advisers may be more concerned about themselves and how they will look than with giving honest advice to help the decision making process reach the best possible result. Any adviser with such a concern is not a worthwhile adviser in my opinion. One of the many failings of George W. Bush is that he overwhelmingly picks worthless advisers, people who share his self-interests and are loyal to him and who give him the advice he wants to hear. Bush is unwilling to listen to candid advice contrary to what he wants to hear. Bush goes through the charade of getting advice, because he is smart enough to realize people know he is not well informed or particularly bright. Cheney is well-informed and bright, to the point of believing he needs no advice. Part of his self-assigned role is to undermine any candid Bush advisers who disagree with his program of running our government in his own interest, by being the ultimate and final adviser to Bush.

So why did Cheney even have a secret energy task force if he seeks no advice? The Court has not yet required any disclosure, so we can only speculate. My best guess is that the task force was a meeting of energy corporate powers to decide on how our government would be used to allow those powers as many gains as possible at the expense of consumers and taxpayers. They were deciding how to divide the large pie the Bush administration was giving them, and Cheney was in charge and fully expecting to receive his cut.

And what about the replacement of US Attorneys? It is becoming quite obvious the replacement was intended to politicize these positions, effectively having Republican operatives using the Justice Department to protect fellow Republicans and to target Democrats. Most significant is the Karl Rove crony who was slipped into the Arkansas post in order to use that office to investigate Hilary Clinton if she gets the Democratic Presidential nomination.

Congress has the right and duty to keep the executive branch in line. The secret Cheney energy task force apparently served no legitimate advisory function needing to be protected by executive privilege. Maybe some day, unless barred by the statute of limitations, a criminal case will be brought seeking information on that task force, in which case the claim of privilege would be weaker because of the possibility of crimes having been committed.

The Congressional inquiry into the US Attorney replacements has been criticized by Republicans as political, but the underlying matter being investigated appears to have been political, so any investigation of political dealings will of course also seem political. Part of the reason for continuing this inquiry is to bring deserved embarrassment on the Bush Administration. The plot to turn the Justice Department into an arm of the Republican Party is another example of how much Karl Rove has done to ruin our system of government and how incompetent Alberto Gonzales and his young stable of sycophants were in carrying out this particular scheme.

A considered decision made after receiving candid advice from divergent sources does not need to be shielded from inquiry by a claim of executive privilege. Such a decision and the process leading to it will give it legitimacy. By contrast, decisions made overwhelmingly for the benefit of special interests, like how to deceptively reward corporate energy powers, and decisions made for wrongful political reasons and with incompetent advice, like how to politicize a non-political Department of our government, are the kind for which executive privilege gets claimed but for which it should not be allowed.

Scoot Gets a Commute

The actual surprises in Bush commuting the sentence of Scooter Libby are subtle. The biggest one is that anyone would be surprised that Libby, a powerful member of the insider club and a loyal sycophant to Cheney-Bush, would be given a get out of jail free card.

An earlier apparent surprise, from back in the trial phase, was that Scooter was claiming he was a fall guy for Cheney, and he would be calling Cheney as a witness. That was his opening pitch to the jury, that he was going to show Cheney was behind the Plame outing and left Scooter holding the bag. But that defense was ignored in the trial itself, Cheney was not called, Scooter's defense was reduced to “I’m a busy guy and can’t remember who I talked to or what I said”, and he was convicted of perjury and obstruction. Some pundits wondered back then whether a deal had been struck by Scooter to drop the Cheney angle in return for a guaranteed pass on jail time. No need to wonder any longer.

Another surprise is that some apparently sincere conservative commentators, who should have enough sense to know better, actually think Scooter got a raw deal and should be pardoned, though they are satisfied with the commutation for now. I suppose this shows these people either are not sincere, or really don’t know better, or both.

The commutation of just the prison time might be considered unexpected, though further reflection shows it is a clever obfuscation of the type the Bush advisors continuously devise. To the less discerning, a commutation seems like a reasoned compromise when compared to a pardon. But unlike a pardon, commutation makes it harder for the prosecutor to force Scooter to testify under immunity if the prosecutor wants to pursue the Plame outing case further. The probation portion of the sentence may fall by the wayside or be converted to a token, since there does not seem to be a recognized federal procedure for handling probation when a sentence is commuted. The fine will be paid or reimbursed by right wing donors.

As for the lasting consequences of not being pardoned, I expect those to last only until the final days Bush is in office. Speaking of pardons, here is the biggest surprise to me. The Libby commutation is being compared by many to the Clinton pardon of international fugitive Marc Rich, for which Clinton continues to receive immense criticism - and the attorney who helped Rich obtain that pardon was none other than “Scooter” Libby.