H/t to this commenter at The Mahablog in response to this post about the NSD issued by President Bush that would apparently make him a dictator in the case of a "catsphrophic emergency" which previously wrote about here. The story has generated some moderate buzz on the internet across the ideological spectrum, with bother liberal bloggers such as Barbara O'Brien linked above and conservative commentators such as Jerome Corsi (in this column) worrying about the initiative, but it has generally escaped in serious news coverage.
I used to do a series of posts titled "Broken Democracy Watch", and the failure of this story to spark national discussion and vigorous inquiry from Congress I think would qualifiy for that series. Although there has been little national news coverage, one of the few journalists in the country who does consistently concern himself with matters concerning the future of democracy, Charlie Savage, did see fit to write an article about the directive, which sheds more light on the anti-democratic nature of it. Savage points out that that the new policy was posted to the White House website on May 9 "without any further announcements or press briefings." Yet given that this new policy raises serious constitutional questions about what kind of government we'd be left with in the case of some vaguely defined emergency, one would think this might be something that the American people and Congress should have a say in, a point that was raised by several Constitutional groups in the article
Sharon Bradford Franklin , the senior counsel at the Constitution Project, a bipartisan think-tank that promotes constitutional safeguards, said the policy's definition "is so broad that it raises serious concerns about when and how this might be used to authorize unchecked executive action."But despite the troubling implications (e.g. Bush gets to declare himself dictator on his say so without-nay-despite pre-existing Congressional checks against such an usurpation) White House spokesman Gordan Johndroe asserted that the American public needs no explanation because of 9/11. So what the hell does that mean? We've already ceased being a democracy and the White House can just rewrite our system and form of government by fiat now?
But Johndroe said it was necessary for a loosely-worded definition because the goverment can't be sure what kind of emergency might arise.
"I don't think you want to have anything in the directive that would tie the president's hands from being able to implement emergency action," he said.
The policy also does not contain a direct reference to statutes in which Congress has imposed checks and balances on the president's power to impose martial law or other extraordinary measures.
For example, the policy does not explicitly acknowledge the National Emergencies Act, a post-Watergate law that gives Congress the right to override the president's determination that a national emergency still exists, activating the president's emergency powers.
The policy says that it "shall be implemented consistent with applicable law," but it does not say which laws are "applicable." Because the Bush legal team has pushed a controversial theory that the Constitution gives the president an unwritten power to disobey laws at his own discretion to protect national security, some specialists said that the vagueness of the policy is troubling.
Asked if the White House believes that the National Emergencies Act is a constitutional constraint on executive power and thus would apply, Johndroe repeated only that "Anything developed would be consistent with all applicable laws."
I've said before that what Savage did in examining Bush's use of signing statements to usurp the powers of the Legislative branch and assert the right to overturn laws duly enacted by Congress needs to be done with Bush's use of Executive Orders. This is another such instance that highlights that need, as the NSD is itself a specialized form of the executive order.
If we are to save democracy, then we must have a full accounting in the public realm of all of the ways in which it has been subverted and undermined, and unless something starts to change in the way media discourse is carried out, the prospects of American democracy surviving through the 21st century are going to grow dim. Democracy can not survive without a well-informed citizenry and a press ever on guard against encroachments against our liberties.
It's on days like this that I have to pinch myself and make sure that I haven't slipped off into some dream (nightmare) to only then realize that I am in fact living in some strange bizarro proto-1984 version of America. If we are going to establish COG plans in case of some sort of national emergency, then the American people must have some assurances that there will be checks in place to preserve the rule of law. Let us not make the mistakes the post WWI Germans made and write an Article 48 into our Constitution (or rather let President Bush and his lawyers pretend that one already exists in Article II).
And although I agree with much of this Alternet article about the inherent dangers of the theory of a unitary executive, we need not even wander into the realm of speculative conspiracy to take alarm at the nature of this directive. The point is that NO PERSON should be above the law in this country and that NO PERSON has the power to rewrite the Constitution by personal fiat and assertion. The new NSD and the theory of a "unitary executive" are in themselves enough to take alarm at. Have we as a nation forgotten the principles that the founders put their lives on the line for?
"[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. " - James Madison, "Memorial and Remonstrance" (1785)
Will democracy survive if we forget the price of liberty is eternal vigilance - what Madison called "the first duty of citizens?"