OUR FOUNDERS AND THE UNBALANCE OF POWER: Democracy Itself is in Grave Danger by Al Gore
American Constitution Society Georgetown University Law Center June 24, 2004 When we Americans first began, our biggest danger was clearly in view: we knew from the bitter experience with King George III that the most serious threat to democracy is usually the accumulation of too much power in the hands of an Executive, whether he be a King or a president. Our ingrained American distrust of concentrated power has very little to do with the character or persona of the individual who wields that power. It is the power itself that must be constrained, checked, dispersed and carefully balanced, in order to ensure the survival of freedom. In addition, our founders taught us that public fear is the most dangerous enemy of democracy because under the right circumstances it can trigger the temptation of those who govern themselves to surrender that power to someone who promises strength and offers safety, security and freedom from fear. It is an extraordinary blessing to live in a nation so carefully designed to protect individual liberty and safeguard self-governance and free communication. But if George Washington could see the current state of his generation's handiwork and assess the quality of our generation's stewardship at the beginning of this twenty-first century, what do you suppose he would think about the proposition that our current president claims the unilateral right to arrest and imprison American citizens indefinitely without giving them the right to see a lawyer or inform their families of their whereabouts, and without the necessity of even charging them with any crime. All that is necessary, according to our new president is that he - the president - label any citizen an "unlawful enemy combatant," and that will be sufficient to justify taking away that citizen's liberty - even for the rest of his life, if the president so chooses. And there is no appeal. What would Thomas Jefferson think of the curious and discredited argument from our Justice Department that the president may authorize what plainly amounts to the torture of prisoners - and that any law or treaty, which attempts to constrain his treatment of prisoners in time of war is itself a violation of the constitution our founders put together. What would Benjamin Franklin think of President Bush's assertion that he has the inherent power - even without a declaration of war by the Congress - to launch an invasion of any nation on Earth, at any time he chooses, for any reason he wishes, even if that nation poses no imminent threat to the United States. How long would it take James Madison to dispose of our current President's recent claim, in Department of Justice legal opinions, that he is no longer subject to the rule of law so long as he is acting in his role as Commander in Chief. I think it is safe to say that our founders would be genuinely concerned about these recent developments in American democracy and that they would feel that we are now facing a clear and present danger that has the potential to threaten the future of the American experiment. Shouldn't we be equally concerned? And shouldn't we ask ourselves how we have come to this point? Even though we are now attuned to orange alerts and the potential for terrorist attacks, our founders would almost certainly caution us that the biggest threat to the future of the America we love is still the endemic challenge that democracies have always faced whenever they have appeared in history - a challenge rooted in the inherent difficulty of self governance and the vulnerability to fear that is part of human nature. Again, specifically, the biggest threat to America is that we Americans will acquiesce in the slow and steady accumulation of too much power in the hands of one person. Having painstakingly created the intricate design of America, our founders knew intimately both its strengths and weaknesses, and during their debates they not only identified the accumulation of power in the hands of the executive as the long-term threat which they considered to be the most serious, but they also worried aloud about one specific scenario in which this threat might become particularly potent - that is, when war transformed America's president into our commander in chief, they worried that his suddenly increased power might somehow spill over its normal constitutional boundaries and upset the delicate checks and balances they deemed so crucial to the maintenance of liberty. That is precisely why they took extra care to parse the war powers in the constitution, assigning the conduct of war and command of the troops to the president, but retaining for the Congress the crucial power of deciding whether or not, and when, our nation might decide to go war. Indeed, this limitation on the power of the executive to make war was seen as crucially important. James Madison wrote in a letter to Thomas Jefferson, "The constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature." In more recent decades, the emergence of new weapons that virtually eliminate the period of time between the decision to go to war and the waging of war have naturally led to a reconsideration of the exact nature of the executive's war-making power. But the practicalities of modern warfare which necessarily increase the war powers of the President at the expense of Congress do not render moot the concerns our founders had so long ago that the making of war by the president - when added to his other powers - carries with it the potential for unbalancing the careful design of our constitution, and in the process, threatening our liberty. They were greatly influenced - far more than we can imagine - by a careful reading of the history and human dramas surrounding the democracies of ancient Greece and the Roman republic. They knew, for example, that democracy disappeared in Rome when Caesar crossed the Rubicon in violation of the Senate's long prohibition against a returning general entering the city while still in command of military forces. Though the Senate lingered in form and was humored for decades, when Caesar impoliticly combined his military commander role with his chief executive role, the Senate - and with it the Republic - withered away. And then for all intents and purposes, the great dream of democracy disappeared from the face of the Earth for seventeen centuries, until its rebirth in our land. Symbolically, President Bush has been attempting to conflate his commander-in-chief role and his head of government role to maximize the power people are eager to give those who promise to defend them against active threats. But as he does so, we are witnessing some serious erosion of the checks and balances that have always maintained a healthy democracy in America. In Justice Jackson's famous concurring opinion in the Youngstown Steel case in the 1950's, the single most important Supreme Court case on the subject of what powers are inherent to the commander in chief in a time of war, he wrote, "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the declaration of independence leads me to doubt that they created their new Executive in their image...and if we seek instruction from our own times, we can match it only from the Executive governments we disparagingly describe as totalitarian." I am convinced that our founders would counsel us today that the greatest challenge facing our republic is not terrorism but how we react to terrorism, and not war, but how we manage our fears and achieve security without losing our freedom. I am also convinced that they would warn us that democracy itself is in grave danger if we allow any president to use his role as commander in chief to rupture the careful balance between the executive, the legislative and the judicial branches of government. Our current president has gone to war and has come back into "the city" and declared that our nation is now in a permanent state of war, which he says justifies his reinterpretation of the Constitution in ways that increase his personal power at the expense of Congress, the courts, and every individual citizen. We must surrender some of our traditional American freedoms, he tells us, so that he may have sufficient power to protect us against those who would do us harm. Public fear remains at an unusually high level almost three years after we were attacked on September 11th, 2001. In response to those devastating attacks, the president properly assumed his role as commander in chief and directed a military invasion of the land in which our attackers built their training camps, were harbored and planned their assault. But just as the tide of battle was shifting decisively in our favor, the commander in chief made a controversial decision to divert a major portion of our army to invade another country that, according to the best evidence compiled in a new, exhaustive, bi-partisan study, posed no imminent threat to us and had nothing to do with the attack against us. As the main body of our troops were redeployed for the new invasion, those who organized the attacks against us escaped and many of them are still at large. Indeed, their overall numbers seem to have grown considerably because our invasion of the country that did not pose any imminent threat to us was perceived in their part of the world as a gross injustice, and the way in which we have conducted that war further fueled a sense of rage against the United States in those lands and, according to several studies, has stimulated a wave of new recruits for the terrorist group that attacked us and still wishes us harm. A little over a year ago, when we launched the war against this second country, Iraq, President Bush repeatedly gave our people the clear impression that Iraq was an ally and partner to the terrorist group that attacked us, al Qaeda, and not only provided a geographic base for them but was also close to providing them weapons of mass destruction, including nuclear bombs. But now the extensive independent investigation by the bipartisan commission formed to study the 9/11 attacks has just reported that there was no meaningful relationship between Iraq and al Qaeda of any kind. And, of course, over the course of this past year we had previously found out that there were no weapons of mass destruction in Iraq. So now, the President and the Vice President are arguing with this commission, and they are insisting that the commission is wrong and they are right, and that there actually was a working co-operation between Iraq and al Qaeda. The problem for the President is that he doesn't have any credible evidence to support his claim, and yet, in spite of that, he persists in making that claim vigorously. So I would like to pause for a moment to address the curious question of why President Bush continues to make this claim that most people know is wrong. And I think it's particularly important because it is closely connected to the questions of constitutional power with which I began this speech, and will profoundly affect how that power is distributed among our three branches of government. To begin with, our founders wouldn't be the least bit surprised at what the modern public opinion polls all tell us about why it's so important particularly for President Bush to keep the American people from discovering that what he told them about the linkage between Iraq and al Qaeda isn't true. Among these Americans who still believe there is a linkage, there remains very strong support for the President's decision to invade Iraq. But among those who accept the commission's detailed finding that there is no connection, support for the war in Iraq dries up pretty quickly. And that's understandable, because if Iraq had nothing to do with the attack or the organization that attacked us, then that means the President took us to war when he didn't have to. Almost nine hundred of our soldiers have been killed, and almost five thousand have been wounded. Thus, for all these reasons, President Bush and Vice President Cheney have decided to fight to the rhetorical death over whether or not there's a meaningful connection between Iraq and al Qaeda. They think that if they lose that argument and people see the truth, then they'll not only lose support for the controversial decision to go to war, but also lose some of the new power they've picked up from the Congress and the courts, and face harsh political consequences at the hands of the American people. As a result, President Bush is now intentionally misleading the American people by continuing to aggressively and brazenly assert a linkage between al Qaeda and Saddam Hussein. If he is not lying, if they genuinely believe that, that makes them unfit in battle with al Qaeda. If they believe these flimsy scraps, then who would want them in charge? Are they too dishonest or too gullible? Take your pick. But the truth is gradually emerging in spite of the President's determined dissembling. Listen, for example, to this editorial from the Financial Times: "There was nothing intrinsically absurd about the WMD fears, or ignoble about the opposition to Saddam's tyranny - however late Washington developed this. The purported link between Baghdad and al Qaeda, by contrast, was never believed by anyone who knows Iraq and the region. It was and is nonsense." Of course the first rationale presented for the war was to destroy Iraq's weapons of mass destruction, which turned out not to exist. Then the rationale was to liberate Iraqis and the Middle East from tyranny, but our troops were not greeted with the promised flowers and are now viewed as an occupying force by 92% of Iraqis, while only 2% see them as liberators. But right from the start, beginning very soon after the attacks of 9/11, President Bush made a decision to start mentioning Osama bin Laden and Saddam Hussein in the same breath in a cynical mantra designed to fuse them together as one in the public's mind. He repeatedly used this device in a highly disciplined manner to create a false impression in the minds of the American people that Saddam Hussein was responsible for 9/11. Usually he was pretty tricky in his exact wording. Indeed, Bush's consistent and careful artifice is itself evidence that he knew full well that he was telling an artful and important lie -- visibly circumnavigating the truth over and over again as if he had practiced how to avoid encountering the truth. But as I will document in a few moments, he and Vice President Cheney also sometimes departed from their tricky wording and resorted to statements were clearly outright falsehoods. In any case, by the time he was done, public opinion polls showed that fully 70% of the American people had gotten the message he wanted them to get, and had been convinced that Saddam Hussein was responsible for the 9/11 attacks. The myth that Iraq and al Qaeda were working together was no accident - the President and Vice President deliberately ignored warnings before the war from international intelligence services, the CIA, and their own Pentagon that the claim was false. Europe's top terrorism investigator said in 2002, "We have found no evidence of links between Iraq and Al Qaeda. If there were such links, we would have found them. But we have found no serious connections whatsoever." A classified October 2002 CIA report given to the White House directly undercut the Iraq-al Qaeda claim. Top officials in the Pentagon told reporters in 2002 that the rhetoric being used by President Bush and Vice President Cheney was "an exaggeration." And at least some honest voices within the President's own party admitted as such. Senator Chuck Hagel, a decorated war hero who sits on the Foreign Relations Committee, said point blank, "Saddam is not in league with al Qaeda...I have not seen any intelligence that would lead me to connect Saddam Hussein with al Qaeda." But those voices did not stop the deliberate campaign to mislead America. Over the course of a year, the President and Vice President used carefully crafted language to scare Americans into believing there was an imminent threat from an Iraq-armed al Qaeda. In the fall of 2002, the President told the country "You can't distinguish between al-Qaeda and Saddam" and that the "true threat facing our country is an al Qaeda-type network trained and armed by Saddam." At the same time, Vice President Cheney was repeating his claim that "there is overwhelming evidence there was a connection between al Qaeda and the Iraqi government." By the Spring, Secretary of State Powell was in front of the United Nations claiming a "sinister nexus between Iraq and the al-Qaeda terrorist network." But after the invasion, no ties were found. In June of 2003, the United Nations Security Council's al Qaeda monitoring agency told reporters his extensive investigation had found no evidence linking the Iraqi regime to al Qaeda. By August, three former Bush administration national security and intelligence officials admitted that the evidence used to make the Iraq-al Qaeda claim was "tenuous, exaggerated and often at odds with the conclusion of key intelligence agencies." And earlier this year, Knight-Ridder newspapers reported "Senior U.S. officials now say there never was any evidence" of a connection. So when the bipartisan 9/11 commission issued its report finding "no credible evidence" of an Iraq-al Qaeda connection, it should not have caught the White House off guard. Yet instead of the candor Americans need and deserve from their leaders, there have been more denials and more insistence without evidence. Vice President Cheney insisted even this week that "there clearly was a relationship" and that there is "overwhelming evidence." Even more shocking, Cheney offered this disgraceful question: "Was Iraq involved with al-Qaeda in the attack on 9/11? We don't know." He then claimed that he "probably" had more information than the commission, but has so far refused to provide anything to the commission other than more insults. The President was even more brazen. He dismissed all questions about his statements by saying "The reason I keep insisting that there was a relationship between Iraq and Saddam and al Qaeda, because there was a relationship between Iraq and al Qaeda." He provided no evidence. continued...
