Libertarians RIP Posted by Lorelei Kelly

With all the discontent among conservatives--and among Republicans on Capitol Hill--you would think that libertarians would feel emboldened to take a stand for the rule of law and excoriate the administration's domestic surveillance policy that allows listening in on Americans' phone conversations.  Libertarians have provided a key ally to the right over the past 30 years.  Yet this self-appointed administration policy violates a key libertarian value, that of privacy rights.  You would think these lovers of individual freedom would be bug-eyed. Not so, for the most part.  The mothership of libertarians is CATO--where the surveillance issue rates below Alito.  Ten years ago, Michael Lind wrote about this peculiarity in Up From Conservatism,

Libertarian ideologues, true to their classical liberal principles, wish to abolish government subsidies both for corporations and for poor Americans.  Yet  Republican strategists have selectively raided this body of thought, looking for ways to reduce government programs that benefit wage earners and the poor, while leaving the interests of the rich and US corporations unscathed. (With the tragedy in West Virginia in mind, check out this labor site on the Bush administration's cuts in the Mine Safety and Health Administration) Meanwhile, organizations like Cato play down the unconservative views of its intellectuals on drug policy, gay rights and abortion.  Now, it seems, we can add privacy rights to that list.

Yet the Alito/surveillance nexus does present an opportunity for those who want to fight for American democracy.  The upcoming Alito Supreme Court hearings could provide a much needed showdown with the administration to uphold representative government.

The Senate should filibuster the Alito nomination to sue for accountability in the Executive Branch over their illegal domestic surveillance program. Here is a lengthy quote by Elizabeth Holtzman, a former Member of Congress, discussing congressional power to reign in the president:

Watergate provides some guidance. Special Prosecutor Archibald Cox was appointed only because of a series of happenstances. Prior to his appointment, the possibility had surfaced that higher-ups might be involved in the Watergate break-in and cover-up. As luck would have it, there was a vacancy in the position of Attorney General. Both Attorneys General John Mitchell and Richard Kleindienst had resigned, the latter because of his connection to the Watergate scandal. When President Nixon nominated Elliot Richardson to fill the vacancy, the Senate refused to confirm him unless he agreed to appoint a special prosecutor with full independence. Richardson complied. In that case, Senators knew there had to be a thorough criminal investigation into Watergate and used the leverage of the Senate confirmation hearings to get their way. That is a far cry from what occurred during the process of confirming Gonzales for Attorney General--even making allowances for the fact that the President's party controlled the Senate.

Still, calls for the Attorney General to appoint a special prosecutor to investigate possible criminal liability under the war crimes and anti-torture laws can be issued, and members of Congress and the Senate can press for it.

In the final analysis, there is no sure way to compel the government to investigate itself or to hold high-level government officials accountable under applicable criminal statutes. But if the public does not seek to have it happen, it will not happen. Those in the public who care deeply about the rule of law and government accountability must keep this issue alive. Failure to investigate wrongdoing in high places and tolerating misconduct or criminality can have only the most corroding impact on our democracy and the rule of law that sustains us.

Several conservative sites mention polling that show 64% of Americans approve of the president's domestic spying policy. To answer this, I refer you to Representative Barbara Lee's statement after the infamous vote on September 14th, 2001.  This was HJ 64 -- the military force resolution that the president claims in defense of his actions. 

Real leaders of real democracies rise above the emotional fray of the moment.  Like Barbara Lee, who was the only Member of Congress to vote against HJ 64.  Mr. President, ask the AG to appoint an independent commission to investigate the domestic surveillance policy.   Congress, stop the process until he does.

Comments

[Jeff Younger]

Mr. President, ask the AG to appoint an independent commission to investigate the domestic surveillance policy. Congress, stop the process until he does.

Just to show what this kind of obtuse rhetoric leads to: Mr. President, investigate and prosecute any member of Congress who violated the law by leaking classified information to the press. Veto every bill until the Congress comes clean about its illegal activities to sabotage the US war effort....

[doc]

- jeff, you old rightie cheerleader you! nice catch on the phrasing.

however...you goofed: "illegal activities to sabotage the US war effort....”

er...you do know we are NOT at war with iraq, right? we invaded and now occupy the country. we didn't bother declaring war on them - we made up a bunch of lies as a pretext to invade them and invade them we did, woo hoo!

but...the fact that we are NOT at war with iraq obviates your analogy/apology, both legally and (just as importantly, if not more so) morally.

[Jim M]

Nice post. Just a quibble, Ms Kelly: Cato is not an acronym, they're paying homage to Julius Caesar's most steadfast limited-government opponent.

[J Thomas]

"Several conservative sites mention polling that show 64% of Americans approve of the president's domestic spying policy."

Americans don't know what the president's domestic spying policy is. All they know about it is what he's told them, and what they've heard from leaks.

If that had been all we knew about Bush's Katrina policy....

It's silly to take Bush's word about it. We need a congressional investigation to find out what Bush's policy actually is, and then take it from there.

[Soren Dayton]

I am a Republican and am familiar with and sometimes sympathetic to Lorelei's arguments about libertarians objecting insufficiently to some policies. In several cases, most recently the hold up of the Patriot Act reauthorization, a libertarian-inclined group of GOP legislators has stepped up and made it's voice heard. (Note that these are often different than moderates. Of the 4 GOPers who joined the filibuster, only 2 -- Hagel and Murkowski -- are members of the Republican Main Street Partnerhip, while Sununu and Thomas are from states, NH and ID respectively, with strong libertarian traditions). However, I think that she undersells the complexity of the problem.

What has happened? The executive has a stated policy (available to Congress and established and documented through established processes determined by Congress) that goes beyond what the law transparently provides. And the executive has acted on this policy. This is not unusual. It's not clear that the War Powers Act has ever been followed by a President. There are other examples. Lots of them.

The first implication is that special prosecutors aren't appointed in cases like this. Special prosecutors are appointed when there is a question of whether a crime has been committed. Examples: Watergate (breaking and entering and conspiracy), Whitewater (unclear financial crimes), and Plame (leaking identities). It's not a crime for the government to exceeds its constitutional authority as interpretted by a court. It's a crime when an individual or corporation violates statute as interpretted by a court.

At most what has happened is that the executive has legitimately promulgated an illegal policy and acted on that policy. Recall that the federal government can create rules that have the force of law but lower status than statute. Executive orders and regulations are examples.

When this happens there are three options: ignore it (the typical response and the only response to date in the War Powers case), litigate, or make a political issue of it and create a political debate.

If you litigate, the courts decide. But the courts try to duck these questions because of seperation of powers issue. The court does not want to be the final arbiter of these questions. In any case, the result would be that the policy is nullified.

The Democrats have taken the 3rd option: making a political issue of it and starting a debate. If the pressure becomes too great on Congressional Republicans or the President, more information will come out, hearings will ensue, etc. We shall see.

Another commentor observed that "people don't know". This is true. But information is always incomplete and we make judgements based on incomplete information.

Right now, the President seems to be defending successfully with the position that, "I told Congress, they knew, and didn't stop me." Public opinion does not seem to be supporting a demand for more evidence. In fact, this debates seems to be helping the President's numbers. (He does worst when he stands alone. When he has a clear opponent, he tends to come out ahead)

[doc]

- Soren

nicely put: however...

it's still a face saving argument about an invasion/ occupation, NOT a war.

more, if Frank Rich's article is correct, we are looking at what most of us have long suspected , Iraqgate.

[J Thomas]

"It's not a crime for the government to exceeds its constitutional authority as interpretted by a court. It's a crime when an individual or corporation violates statute as interpretted by a court.

At most what has happened is that the executive has legitimately promulgated an illegal policy and acted on that policy."

I seem to have missed your point here. Are you saying that if Bush has promulgated an illegal policy that it isn't a crime?

It's surely an impeachable offense, provided that Congress chooses to impeach.

And depending on just what is eventually revealed, it might turn out to be very unpopular with voters -- which matters far more than the exact wording of law as interpreted by the Bush-appointed courts.

[Doc]

"In a raw interview transcript posted on MSNBC's Web site last week - and quickly seized on by John Aravosis of AmericaBlog - the NBC News foreign affairs correspondent Andrea Mitchell asked Mr. Risen if he knew whether the CNN correspondent Christiane Amanpour might have been wiretapped. (Mr. Risen said, "I hadn't heard that.") Surely a pro like Ms. Mitchell wasn't speculating idly. NBC News, which did not broadcast this exchange and later edited it out of the Web transcript, said Friday it was still pursuing the story. "

it always starts with little things...

[Vincente]

The real Libertarians are living it up over at Reason Magazine... under the fun-loving tutelage of the leather jacketed Nick Gillespie.

They've been anything but quiet about all this. Read their Weblog "Hit 'n Run" if ye doubt.

www.reason.com/hitnrun

Live Free or Die, Suckers
Vincente

[kamil]

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