By Patricia Lee Sharpe
John Yoo, the Benedict Arnold of our constitutional system, is in the news again. His memos, those secret messages he so treacherously delivered to the Bush administration, are gradually coming to light. One of the latest to surface (so far as I know) held that the Fourth Amendment doesn’t apply to “domestic military operations” against terrorists. Pressed to the wall, the slippery new Attorney General conceded, very reluctantly, that the Fourth Amendment, which protects Americans against unreasonable search and seizure, is indeed still in effect “across the board.”
Democratic Senators are Trying
We have Democratic Senator Dianne Feinstein of California to thank for forcing that out of the Bush administration’s latest minion at the Justice Department. Thinking that a retired judge would have some sense of loyalty to the Constitution, the Democrats in the Senate, including Feinstein, gave Murkasy an easy time during his confirmation hearings. That, clearly, was a mistake. He is as unprincipled and devious as his predecessor. And we can be sure that, even as he spoke those words, he was holding to some mental reservation that will serve as his version of a presidential signing statement nullifying the public sense of his utterance.
Meanwhile, other Democratic Senators, Sheldon Whitehouse, of Rhode Island and Russ Feingold of Wisconsin, are still insisting on their right to obtain documents that have to do with domestic surveillance and terrorist interrogation practices. They also contend that modifications in executive orders on sensitive issues should be, at the very least, reported to the appropriate Congressional committees.
“It is a basic tenet of democracy that the people have a right to know the law,” insists Senator Feingold. How radical!
Reading stories like this, including one which informs us that lawyers can no longer speak on the phone with clients accused of terrorism for fear of government eavesdropping, I thought it might be a good idea to look into the prospect for a less imperious presidency under a Democratic successor. Oddly enough, neither Clinton nor Obama has initiated much of a conversation on Constitutional issues, and the media hasn’t forced them to make up for their oversight or reluctance during the twenty-some “debates” in which they have faced one another. Does that mean that each of them would continue on the Bush track? That was a very frightening thought. So I checked out the web sites for the Clinton and Obama campaigns.
The Ominous Silence
Both Clinton and Obama are lawyers. They fully understand the implications of the Yoo memos and the other advice produced by the Justice Department during the Bush administration. And yet, what I found when I scanned the "Issues" sections of each web site is that neither Obama nor Clinton have any position they wish to publicize on the following urgent Constitutional issues or deplorable human rights abuses:
Habeas corpus. Warrentless surveillance of all kinds. Military tribunals. The Geneva Conventions. Secret rendition. Torture. Legislation-nullifying signing statements. The balance of powers. Constitutional checks and balances. Guilt by association. Preventive detention. The right to competent legal representation. The right of the accused to know charges and confront witnesses. The constraints on the commander-in-chief. Executive privilege. Over-classification and secret government.
There are at least three possible reasons why we cannot learn what the candidates think about these critical matters. (1) They have contempt for the American public, imagining that we cannot understand these issues or do not care or will be too easily manipulated by the Republicans ready to impale them on flag pins. (2) The omission was an oversight, which is not likely considering the long list of issues which are dealt with on each web site. (3) They intend to follow the Bush lead.
The Veto-Proof Solution
I am relieved that Democrats in Congress and in the Senate are trying to rectify the damage that the Bush administration has done to democracy in the United States. But I am now forced to wonder if our representatives will have the support for Constitutional restoration that we so desperately need from a Democratic president.
All the more reason to have a veto proof Democratic majority in Congress by next January!