Ermachtigungsgesetz - Bush prepares

 George Mason University professor of public policy Mark J. Rozell, an expert on executive privilege, describing the administration’s position as “astonishing” and a “breathtakingly broad view of the president’s role in this system of separation of powers.”


Protesting the War may be a Crime

Written by Peter Chamberlin -- Monday, 23 July 2007

On July 17, 2007, Bush quietly issued ani executive order entitled "Executive Order: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq." By this order, he made it a crime to commit, or to pose a significant risk of committing..., acts of violence that threaten "the peace and stability of Iraq," or undermine "efforts to promote economic reconstruction and political reform in Iraq and to provide humanitarian assistance to the Iraqi people."

It remains to be seen just how far Bush will stretch this law, in light of ongoing attempts by neocon enemies of America, who charge Americans with "subversive activities" and "providing support to the enemy," for protesting the war. No one is safe from their crusade to brand most of the American people as "treasonists," for opposing Bush's out-of-control "leadership" of the war effort. Even Sen. Hillary Clinton has been accused of these "crimes" by neocon stooges like Eric Edelman, who attacked her for requesting a briefing for her committee from the Department of Defense on contingency plans for withdrawal from Iraq.

The new Executive Order authorizes the Sec. or Treasury to seize the property and economic assets of any American citizen who is "threatening the peace or stability of Iraq or the Government of Iraq...undermining efforts to promote economic reconstruction and political reform in Iraq..," or those who "have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such...person whose property and interests...are blocked..."
Bush based this extraordinary measure on his belief that any American who did these things, or supported those who did "...would seriously impair my ability to deal with the national emergency declared in expanded... Executive Order 13315..." This E.O. is a continuation of the policy set by Jimmy Carter's executive orders, E.O. 12170, 11/14/79 (which blocked Iranian government property) and E.O. 12211, 04/17/80 (which prohibited transactions with Iran). Following Carter's precedent, George HW Bush used his emergency power to put a "lien" on Iraqi assets when Saddam Hussein invaded Kuwait in Gulf 1. Little Bush re-adapted his father's "national emergency," to first, attach Iraqi assets and to prohibit transactions with Iraq after Gulf 2 began, which he later rescinded to issue another "emergency" declaration, to protect the Iraqi Development Fund. The latest order is a bizarre stretch of the law, beyond any imaginable reasonable interpretation, to justify a political clampdown, based on threats to that fund. This "bizarro" interpretation is the basis for the new threatening order.

Bush cited "the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act..., the National Emergencies Act..., and section 301 of title 3, United States Code (which pertains to any function which is vested in the President by law)," to justify his actions. His crazy interpretation of these statutes greatly exceeds all the authority that he claims to have derived from them.

The International Emergency Economic Powers Act clearly defines those powers as the authority to "investigate, regulate, or prohibit... any transactions in foreign exchange... transfers of credit or payments between...,or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof...,or the importing or exporting of currency or securities..." The authority granted to the President by this section does not include the authority to regulate or prohibit..."articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, (or the financial means to attain them) except to the extent that the President determines that such donations (A) would seriously impair his ability to deal with any national emergency... The President, in every possible instance, shall consult with the Congress before exercising any of the authorities granted..." Under penalties listed in Sec. 1705, "...A civil penalty of not to exceed $10,000 may be imposed on any person who violates any license, order, or regulation issued under this chapter..." Under these regulations, Congress has the authority to terminate any declared "national emergency" by joint resolution.

The National Emergency Powers Act says that the "...emergency powers may be stated explicitly or implied by the Constitution, if the Chief Executive believes that they may be permissible Constitutionally, or inferred by statutes. There are limits and restraints to the President's authority to exercise the emergency powers that he has assumed. With the exception of the habeas corpus clause, the Constitution makes no allowance for its suspension, or of any of its provisions during a national emergency..." He is still bound by the separation of powers and must consult with the legislative and judicial branches before assuming these extraordinary powers. During a legitimate "national emergency" the President can "... seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. Furthermore, Congress may modify, rescind, or render dormant such delegated emergency authority..."

This whole extended "national emergency," which Bush 1 set in motion and Junior extended and modified, is based on Daddy Bush's declaration that "...the policies and actions of the Government of Iraq constitute an unusual and extraordinary threat to the national security and foreign policy of the United States...," which Iraq clearly is unable to do. Junior replaced that emergency with his own, parroting Daddy's claims that threats to "...the peace and stability of Iraq and undermining efforts to promote economic reconstruction and political reform in Iraq..." pose an "...unusual and extraordinary threat to the national security and foreign policy of the United States..." Just like the imaginary "Iraq threat" that was used to justify Gulf War 2, Iraq has never represented a credible threat to anything but American pride and machismo.

This "national emergency" is the latest move in a succession of Executive Orders and "signing statements" by Bush, that have continuously whittled away at the Constitution and the Bill of Rights, justified by the "war on terror." This follows the last semi-secret signing of NSPD 51 and HSPD 20 (Homeland Security) on May 9,2007. This Executive Order will, in effect elevate the President and his National Continuity Coordinator to an unprecedented position above the entire government, when Bush decides to declare the next "national emergency," where he alone, "...shall lead the activities of the Federal Government for ensuring constitutional government...," under the Continuity Of Government program.
According to Prof. Michel Chossudovsky of Global Research, "... NSPD /51 HSPD 20 grant unprecedented powers to the Presidency and the Department of Homeland Security, overriding the foundations of Constitutional government...NSPD 51 allows the sitting president to declare a 'national emergency' without Congressional approval... The adoption of NSPD 51 would lead to the de facto closing down of the Legislature and the militarization of justice and law enforcement...in a'Catastrophic Emergency'..., defined... as any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions..." NSPD 51 ensures that "...appropriate support is available to the Vice President and others involved as necessary to be prepared at all times to implement those provisions." Many of us wonder whether Cheney hasn't already assumed many of these special powers, judging by his elevation of himself above the Congress and the Executive Branch.

The extremely serious threat that these orders represent to American civil liberties and to our Constitutional rights cannot be overstated. On October 17, 2006, Bush signed into law S. 3930, the Military Commissions Act, which made it acceptable to violate the Geneva Conventions and the Army Field Manual on Interrogations regulations banning torture, which also enabled him to designate anyone, even American citizens, as "enemy combatants," making Americans susceptible to everything that happens to real terrorists in secret. The Defense Authorization Act of 2006 (H.R. 1815) empowered the President to declare martial law in the event of a terrorist attack or disruption of "public order," leaving him to determine which "disruption" is serious enough to warrant the declaration.

How much more proof do we need that our Constitution and our liberty are severely imperiled by this administration's approach to the war on terror? Blind administration support for whatever Israel does in alleged conjunction with the war on terrorism has effectively locked us into an escalating path to war with Iran, at a time of Israel's choosing. According to Israeli Minister of Strategic Affairs Avigdor Lieberman, the Israeli government has been told by unnamed NATO and European Union officials that, "If we start military operations against Iran alone, then Europe and the US will support us." Judging from last summer's Israeli invasion of Lebanon and the Administration's great public disappointment with Israel for not finishing Hezbollah off, or not invading Syria, Lieberman's words ring true.

In light of all this evidence that we are about to let Israel start a war with Iran for us to finish, and the warnings about protests which "endanger" Bush's plans for Iraq, our direction for opposing Bush's neocon war of conquest becomes very clear. All protests against the Iraq war must become protests of the Iran war, the war that Bush claims that he is not planning. The antiwar movement in America must follow Bush's lead and switch gears. We have to save our Constitution and we have to oppose Israel and Israel's agents (AIPAC, the American Israeli Political Action Committee in America), who are feverishly waging war against the common will of the American people. Israel must face the wrath of the American people. It is time for a total economic boycott of anything Israeli, until the Knesset figures out that they must fight their own wars, especially their wars of aggression. If it takes a national general strike to save the Constitution from the Republican and Democratic representatives who have joined together to do Israel's will, against the will of the people, then that is what must be done. If we have to risk freedom itself to preserve the sacred heritage that has been entrusted to our care, then that is what we have to do.

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“Executive privilege” claim in US attorneys’ case

White House asserts sweeping power to defy the law

By Bill Van Auken   21 July 2007

The Bush administration has claimed virtually unlimited power to defy Congress and federal law in its rejection of congressional attempts to secure information related to the politically motivated firing of nine US attorneys.

The Washington Post reported Friday that officials in the administration have insisted that “the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.”

The report came one day after a House judiciary panel indicated that it is moving closer to bringing contempt charges against White House chief of staff Joshua Bolten over his refusal to turn over subpoenaed documents sought in the probe of the federal prosecutors’ purge.

The House subcommittee voted 7-to-3 to reject the White House contention that Bolten’s stonewalling is legitimized by Bush’s assertion of executive privilege. The Bush administration has made the sweeping claim that virtually all communications involving decision-making within the administration are protected as confidential discussions involving the US president.

Similar claims have been made by the administration in rebuffing subpoenas issued by the Senate Judiciary Committee demanding documents from the Vice President Dick Cheney’s office, the Justice Department and the National Security Council regarding the National Security Agency’s secret and illegal domestic spying operation.

In addition, the White House has instructed Bush’s former White House Counsel Harriet Miers to refuse to respond to a congressional subpoena to testify before the House Judiciary Committee on the attorney firings. It was Miers who initiated the process that led to the firings of the nine prosecutors, when she proposed that all 93 US attorneys be dismissed after Bush’s reelection in 2004.

The administration and the Republican right have advanced a thesis known as the “unitary executive,” under which all executive branch officials, including the US attorneys, are to be considered extensions of the president’s personal power. This means that Congress cannot mandate an executive agency or department to carry out actions opposed by the president—such as initiating the prosecution of a top official for contempt of Congress.

“Those claims are not legally valid,” the House panel’s chairwoman, Linda Sanchez, a California Democrat, said after Thursday’s vote. “We are hopeful that the White House will come to the conclusion that is better for them to cooperate than continue this confrontation.”

Sanchez’s claims were substantiated in a confidential report drawn up by the Congressional Research Service, Congress’s non-partisan research arm, dated July 5 and entitled “Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments.”

The document, while not issued publicly, was posted earlier this week on the web site of the Federation of American Scientists Project on Government Secrecy.

The report states in part that “recent appellate court rulings cast considerable doubt on the broad claims of privilege posited by the OLC (the Justice Department’s Office of Legal Counsel) in the past and now by the Clement Memo.” The document to which the report refers is a memorandum issued June 27 by Paul D. Clement, the Solicitor General and Acting Attorney General in matters dealing with the fired prosecutors, claiming virtual blanket immunity under executive privilege and baldly asserting that “congressional interest in investigating the replacement of US attorneys clearly falls outside its core constitutional responsibilities.”

The document, drafted by the CRS’s specialist in American public law, Morton Rosenberg, went on to cite two court rulings against the Clinton administration, the Espy and Judicial Watch cases, asserting that they “arguably have effected important qualifications and restraints on the nature, scope and reach of the presidential communications privilege.”

In particular, Rosenberg insisted that these cases found that “the unavailability of the information elsewhere by an appropriate investigating authority” trumps an assertion of executive privilege.

The response of the Bush administration to such findings is to assert even greater extra-constitutional powers, essentially declaring that once executive privilege is claimed, the White House is answerable to neither the Congress nor the courts. It has made it clear that it is prepared to openly defy the law in order to impose this interpretation.

Under federal law, once the House or Senate issues a contempt citation against an administration official, it is submitted to the US attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

According to the Post, administration officials have made it clear that they intend to block this legally defined process.

“A US attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” a “senior official” told the Post, affirming that his position was that of the administration. “And a US attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.”

The official added that the “constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to US attorneys.”

An “astonishing” assertion of presidential power

The Post article quoted George Mason University professor of public policy Mark J. Rozell, an expert on executive privilege, describing the administration’s position as “astonishing” and a “breathtakingly broad view of the president’s role in this system of separation of powers.”

“What this statement is saying is the president’s claim of executive privilege trumps all,” Rozell added.

California Democratic Congressman Henry Waxman, chairman of the House Oversight and Government Reform Committee, the principal investigative committee of the House, told the newspaper that the administration’s position “makes a mockery of the ideal that no one is above the law.” Waxman added, “I suppose the next step would be just disbanding the Justice Department.”

In fact, the White House position is of a piece with the federal prosecutors’ firings to begin with. The purpose of the purge was to secure the transformation of the Justice Department into little more than a political agency of the White House and the Republican National Committee, using its police powers to influence the outcome of the 2006 and 2008 elections.

Ample evidence has already emerged from the investigation into the purge of US attorneys that those fired were targeted either for prosecuting corrupt Republican elected officials or for resisting Republican demands that they mount politically motivated investigations of Democratic candidates and pro-Democratic organizations on trumped-up vote fraud charges.

The only precedent that White House officials cited in their sweeping claims for executive privilege is a 1984 opinion issued by the right-wing lawyer Theodore Olson, who headed the Justice Department’s Office of Legal Counsel under the Reagan administration and then served Bush as solicitor general between 2001 and 2004.

The case involved the refusal of then Environmental Protection Agency chief Anne Gorsuch Burford to turn over documents relating to a scandal over the Reagan administration’s failure to enforce toxic waste cleanup statutes.

The document asserted: “The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.”

This extra-constitutional assertion was never tested in court, as the Reagan administration ended up turning over the documents and Burford, who was found in contempt of Congress, resigned.

Given the administration’s blanket refusal to comply with federal law, recourse is left to Congress in the form of “inherent contempt.” This statutory procedure, enacted by Congress in 1857, allows either the House or Senate to issue a contempt citation and then have the individual cited arrested by the body’s sergeant-at-arms to be brought to the floor of the chamber for trial.

This authority was used only once, in 1934, when the Senate tried and convicted a former Postmaster, sentencing him to 10 days in jail. The action was subsequently upheld as constitutional by the US Supreme Court.

If there was ever an occasion for utilizing such a statute, it is manifestly presented by the Bush administration’s brazen contempt for the law. There is little chance, however, that either the Senate or the House will invoke this power. Just as the Democratic leadership in both chambers refuses to employ the congressional “power of the purse” to stop funding the war in Iraq, so too it has no stomach for aggressively pursuing a constitutional confrontation with the White House.

The extraordinary assertion by the White House of quasi-dictatorial powers takes place in the context of public support for Bush and his administration having fallen to near record lows, with less than a third of the population expressing support for their policies, and with particularly bitter opposition to the war in Iraq.

Bush’s claims might appear delusional in the light of his dwindling political support. But given the passivity and continuous capitulation of the ostensible political opposition in the Democratic Party, and cover-up of the constitutional implications by the media, the assertion by the White House of supra-legal powers assumes far more ominous significance.

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WSWS : News & Analysis : North America

US generals call for extension of Iraq war

By Patrick Martin 23 July 2007

In an unprecedented display of military intervention into an ongoing political debate in the United States, five high-ranking officers, four of them in command positions in Iraq, have publicly opposed the growing popular demand for immediate withdrawal of US troops and urged the extension of the war at current or even greater levels of violence, for years to come.

These declarations amount to blatant defiance of the longstanding principle that the US military should stay out of politics, and that the military is subordinate to civilian control, exercised through representatives elected by the people. The military brass is instead rallying to the anti-democratic posture taken by President Bush, who has repeatedly declared that decisions on military policy in Iraq should be made by commanders on the ground, not by “politicians in Washington.”

The statements by the five officers were the product of a coordinated White House effort to go on the political offensive after the abandonment of attempts by Senate Democrats to impose even the mildest of restrictions on US military operations in Iraq. Senate Majority Leader Harry Reid called off debate on war-related amendments to the defense authorization bill Wednesday, and the barrage of bellicose comments from the Pentagon began the next day.

General David Petraeus made his remarks during a videoconference briefing on Iraq July 19 for senators and congressmen who sit on committees with responsibility for military and foreign policy and military appropriations. In response to a question from a pro-war Republican congressman, he said that any announcement of a planned US withdrawal would spread fear among Iraqis who were cooperating with the occupation, disrupt ongoing political negotiations in Baghdad, and increase sectarian violence.

Lt. Gen. Raymond T. Odierno, the deputy US commander in Iraq, went considerably further in his comments. Both during the videoconference and in subsequent remarks to reporters in Iraq, he called into question the mid-September deadline set by Congress for a report on results of the “surge.” Odierno claimed that there had been “significant success” in the past month but that it would not be possible to know by mid-September whether this was “just a blip.” He said that “to do a good assessment” would require “at least until November.”

After congressional and media criticism of this open challenge to the legislated mandate of a September 15 reporting date—voiced even by Senate Republican Leader Mitch McConnell—Odierno and the White House each issued statements denying that the general had said what he said.

“There is no intention to push our reporting requirement beyond September,” Odierno said in a written statement. “Nothing I said yesterday should be interpreted to suggest otherwise. My reference to November was simply suggesting that as we go forward beyond September, we will gain more understanding of trends.”

White House spokesman Tony Snow added, “We’re not trying to sort of change the ball game. We understand what the reporting requirements are.”

His words were contradicted, however, by the comments of two other American generals in Iraq, speaking to the Associated Press Friday. Maj. Gen. Rick Lynch, commander of the Third Infantry Division, which operates south of Baghdad, said, “I worry about this talk about reducing or terminating the surge.”

Lynch said that from the time he arrived in Iraq to head his portion of the escalation last March, he had calculated that his mission would require 15 months’ deployment. “It’s going to take through summer, into the fall, to defeat the extremists in my battle space,” he elaborated, “and it’s going to take me into next spring and summer to generate this sustained security presence.”

A pullback before the summer of 2008 would amount to negating the sacrifices made by his soldiers, including the deaths of 56 men in the past three months, he maintained, adding, “It would be wrong to have fought and won that terrain, only to give it back.”

Marine Corps Maj. Gen. Walter E. Gaskin, the commander of American forces in western Anbar province, suggested an even longer timeframe for the current escalation, up to two years, although he repeated the claims from the Pentagon that the collaboration of a group of Sunni sheiks meant that the US forces had “turned the corner” in the struggle in Anbar.

Gaskin argued that Iraqi security forces needed considerable training and combat experience. “I see that experience happening every day, but I don’t see it happening overnight,” he said. “I believe it’s another couple of years in order to get to that.”

Conceding that he was out of step with public opinion in the United States, Gaskin said, “That’s not a political answer. That’s a military answer.”

In Washington, the commandant of the Marine Corps, Gen. James T. Conway, spoke at the National Press Club Friday to condemn a “premature” withdrawal, embracing the Bush administration’s claim that Iraq is part of a worldwide, generation-long struggle against Islamic terrorism.

“If you lose the first battles of a long war, the war gets tougher,” Conway said. “If you win the first battles, you’ve got momentum on your side, and, guess what, the war is shorter.”

Referring to proposed legislative mandates for withdrawal of combat troops, Conway added, “My concern is if we prematurely move, we’re going to be going back.... I tend to think it’s better to get it done the first time.”

Bush lined up alongside the generals. In a stage-managed appearance in the White House Rose Garden Friday, he denounced congressional criticism of his Iraq war strategy and demanded passage of new legislation that would authorize and fund the war through the remainder of his term of office.

Appearing after a meeting with pro-war veterans and military family members, Bush portrayed the indefinite continuation of the slaughter in Iraq as “support” for the soldiers who are dying there. He called on Congress “to give our troops time to carry out our new strategy in Iraq”—the escalation of the war through the dispatch of an additional 30,000 combat troops—which he claimed had achieved “important successes.”

The Los Angeles Times reported Saturday that while Congress was debating the course of the war in Iraq, “inside the administration, a less visible but no less passionate debate is quietly underway—over whether the ‘surge’ should continue even longer.” The report to be submitted by Petraeus in September would include the option of expanding or extending the surge, the newspaper revealed, adding, “Evidence is mounting that military commanders favor a continuation of the buildup, which now has the troop level at 158,000, through next spring.”

The Bush administration is elaborating military plans on the basis of an assumption that the war will continue at least at present levels of intensity through the remaining 18 months of Bush’s tenure in the White House. According to other press reports, Pentagon officials have denied making any plans for a “post-surge” presence in Iraq. Ambassador to Iraq Ryan Crocker, speaking on the same videoconference Thursday with General Petraeus, said no such planning was underway. “I am not aware of these efforts and my whole focus is involved in the implementation of Plan A,” he said.

Bush administration officials have even publicly suggested that to discuss plans for a post-surge reduction in US forces amounts to strengthening the “enemy” in Iraq—invariably defined as Al Qaeda terrorism, not Iraqi resistance to foreign occupation.

That was the substance of the extraordinary letter sent to Senator Hillary Clinton July 16 by Eric S. Edelman, the undersecretary of defense for policy, and the senior surviving neo-conservative in the Pentagon civilian hierarchy (as well as a former aide to Vice President Cheney).

Clinton wrote to Edelman in May, in her capacity as a member of the Senate Armed Services Committee, asking what planning had been done in the Pentagon for the kind of partial drawdown in US troop presence advocated by Senate Democrats. Edelman waited two months, until the day of the Senate’s 24-hour debate on Iraq war policy, before firing off a two-page letter containing a thinly disguised suggestion that Clinton was a traitor.

“Premature and public discussion of the withdrawal of US forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq, much as we are perceived to have done in Vietnam, Lebanon, and Somalia,” he wrote. “Such talk understandably unnerves the very same Iraqi allies we are asking to assume enormous personal risks....” It also “exacerbates sectarian trends” in Iraq, as the rival factions focus their maneuvers on securing the most advantageous position in a post-occupation environment.

Clinton’s office released the letter with an obvious political motive, hoping that the vitriolic attack on the senator would raise her standing among antiwar voters and help overshadow her long record of support for the invasion and continuing US occupation of Iraq—a position she still holds today.

The letter is nonetheless significant, mainly for its tone of belligerent intolerance of any criticism of the war and any congressional input into policymaking. This reflects the mood, not just of the desperate neo-conservative faction within the Bush administration, which spearheaded the drive to war, but of wide sections of the military establishment.

The Pentagon brass, whatever their conflicts with former defense secretary Donald Rumsfeld over the conduct of the war, regard a forced US withdrawal from Iraq as a debacle for the American military machine that will have incalculable consequences.

The military officer corps has been trained in the purported “lesson” of the Vietnam War, that it was civilian interference with military operations that produced the historic US defeat. This theory resembles nothing so much as the infamous “stab-in-the-back” theory of Adolf Hitler, whose Nazi Party blamed Germany’s defeat in World War I on the activities of socialists, communists and Jews.

In a similar fashion, the American military more and more sees itself arrayed against what it regards as the “enemy within”—not so much the congressional Democrats, whose “opposition” to the war is both toothless and insincere, as the great majority of the American people who have turned decisively against the war and all its perpetrators and apologists.