Obama and Congress Must Act to Restore the Constitution

By Dave Lindorff

The calls for a reckoning for the criminals of the Bush/Cheney administration are growing by the day, as the final few days of the Bush presidency tick down, and as new evidence of their crimes keep pouring out of the deflating gas bag that was the Bush White House.

For years, the Democrats in Congress, with a few notable exceptions, have sat on their hands, allowing the ongoing destruction of the Constitution, of the US military, of the nation’s reputation, and of the rule of law, as well as of the institution of Congress itself, by a cabal of Republicans in the White House, led by Vice President Dick Cheney, who have sought to establish an executive-led government that answered only to itself.

Obama, running for the White House, initially talked of restoring the constitutional order, and of prosecuting crimes where they had occurred, much as he talked of ending the war in Iraq. But now, as he increasingly assumes the role of President, he is backing away from that kind of talk, with plans instead to extend the war and occupation in Iraq for years, while actually expanding the war in Afghanistan, and to give the outgoing administration of criminals and Constitution-wreckers a free pass, in the name of “letting bygones be bygones.” Ironically, he is doing this even as some in Congress, including House Judiciary Chair John Conyers, who ducked the issue of impeachment and sat on proposed impeachment articles against Bush and Cheney filed by Rep. Dennis Kucinich (D-OH) for two critical years when he could have ordered a formal hearing by his committee, are now calling for a special prosecutor.

But broken promises about the war aside, Obama cannot have it both ways. If, as he is still declaring, “no one is above the law” in America, then it is essential that those who have committed grave crimes must be indicted and tried for those crimes. As he takes the oath of office on Jan. 20, Obama will swear to uphold and defend the Constitution. That means not only defending the integrity of the document itself, but enforcing all the laws that have been passed in accordance with that document.

As President, Obama has no more right than did his predecessor to pick and choose which laws to enforce. At a time when the nation’s jails are crammed to overflowing with hundreds of thousands of people whose crimes are as minimal as stealing CDs from a convenience store, if President Obama and his Justice Department fail to order an investigation into profound White House crimes like the destruction of evidence in the Valerie Plame spy-outing case, or the investigation into the politicalization of the appointment and firing of US Attorneys, or of the deliberate campaign of lies to justify an unnecessary invasion of Iraq, if they fail to investigate fully what the president’s illegal National Security Agency wiretapping program was really all about, if they fail to investigate the rampant fraud and profiteering by White House-connected private contractors in the Iraq War zone, if they fail to investigate the clear evidence of White House efforts to undermine fair elections in 2002, 2004, 2006 and 2008, if they fail to prosecute the White House, right up to the offices of Vice President and President, for authorizing, directing and then covering up evidence of systematic torture of captives in the wars in Iraq and Afghanistan and in the so-called “war” on terror, if they don’t investigate what the administration really knew and what it covered up in the days and weeks before the 9-11 attacks in 2001, it will no longer be possible to say, with a straight face, that in America everyone is equal under the law.

But that is only part of it.

Many of the current administration’s “crimes” are not statutory violations. They are so called “high crimes” as defined by the Founders. That is to say they are abuses of power that threaten the nation’s very essense. They are not crimes in the sense that they violate a law, but, even more seriously, they undermine our political system and consequently threaten the very continued existence of our free and democratic society.

The appropriate remedy for these high crimes—things like Bush’s refusal, expressed through signing statements, to enact or envorce laws or parts of laws duly passed by the Congress, his and Vice President Cheney’s refusals to comply with Congressional subpoenas, his lies to Congress regarding the true situation regarding the alleged threat posed by Iraq in 2002 and 2003, and his overall assertion of “unitary executive” power as commander in chief—was impeachment, but with Bush and Cheney about to leave office, that is probably a lost cause. (Certainly the two men could still be impeached, as impeachment itself does not require that the impeached party still be in office, and the potential penalty for conviction of an impeachable offence, besides removal from office, also can include a permanent ban on holding any future public office—an important sanction for the historical record.) But here Obama—and the Democratic Congress--could act creatively, for example by ordering the creation of a commission of inquiry to investigate and condemn such constitutional undermining. By compelling the testimony of witnesses under oath, it is possible that actual punishable crimes such as contempt or perjury could still be committed by White House officials and even by Bush and Cheney, but more importantly, the nature of these crimes would be publicly exposed and condemned, so that it would be far less likely that any future administration would again commit them.

Obama should also act unilaterally to undo as much of the damage as possible—for example revoking all unconstitutional presidential signing statements from the Bush/Cheney years, and canceling all unconstitutional Executive Orders, such as those authorizing torture and extraordinary rendition programs.

The time is right for these actions. The public is almost uniformly angry at the outgoing administration, which is walking away from office leaving the nation a smoking ruin. Contrary to what Obama and his advisers and the pathetic leadership in both houses of Congress seem to think, the American public doesn’t want them to simply “move forward.” Sure we want action to fix the wrecked economy, and to get all the troops safely back home, but we also way the country put back together, and we want those who wrecked the place to pay for the damage they’ve done.

Few Americans would be dismayed to see Bush and Cheney squirming in the dock. Most would, in fact, be cheering and jeering.

The time has come for the newly empowered Democratic government in Washington to stand up proudly and unambiguously for the Constitution and the rule of law, and to prove that the phrase “No one is above the law” isn’t just, as Bush’s hack lawyer Alberto Gonzales once said of the Geneva Conventions, a “quaint historical artifact.”
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DAVE LINDORFF is a Philadelphia-based journalist. His most recent book is “The Case for Impeachment” (St. Martin’s Press, 2006 and now available in paperback edition). His work is available at www.thiscantbehappening.net