Pincer: A movement in which two columns are driven, one on each side of an enemy stronghold, so as to be able to converge like the jaws of pincers to isolate and crush the stronghold./
Echoing calls from the left, Senator Arlen Specter recently announced plans to hold hearings on what he has described as the executive branch's blatant encroachment on Congressional authority. At the same time, the libertarian Cato Institute has issued a report condemning what its authors describe as the Bush Administration's ceaseless push for power and its disdain for constitutional limits. And the American Bar Association has just set up a bipartisan all-star legal panel to investigate whether George W. Bush is violating the Constitution by claiming the right to ignore laws passed by Congress. What's needed now is for those from different points on the political spectrum to cooperate to put effective checks and balances on the presidential power grab.
Bush's usurpations of constitutional powers have been so wide in scope that they've often been perceived as separate issues affecting distinct constituencies. Charlie Savage reported in the April 30 /Boston Globe/ that Bush has claimed he can ignore more than 750 statutes, including "military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, 'whistleblower' protections for nuclear regulatory officials, and safeguards against political interference in federally funded research." Even those who regard torture, rendition, government secrecy, domestic spying and similar abuses as scandalous and reprehensible don't always grasp that they are all manifestations of the same defiance of constitutional principles. Indeed, we face a "stealth authoritarianism."
The Cato Institute's new report, /Power Surge: The Constitutional Record of George W. Bush/, represents a big step toward putting together the pieces. It identifies a whole slew of violations, including the denial of habeas corpus, the violation of international torture conventions, efforts to deny the right to a jury trial and the erosion of war powers restrictions. According to Cato, the Administration believes, "When we're at war, anything goes, and the president gets to decide when we're at war." This view of executive power, says the report, should "disturb people from across the political spectrum." Indeed, the Cato report is so compelling because it hews so closely to the basic critique made by Representative John Conyers in his House Judiciary Committee Democratic Staff report, /The Constitution in Crisis/, and by others in the peace and human rights movements. In words that might spill from the mouth of Cindy Sheehan or Scott Ritter, Cato concludes that we now have "a president who can launch wars at will, and who cannot be restrained from ordering the commission of war crimes, should he choose to do so."
Differences, of course, remain. The Cato report, for example, hails the Administration's battle against gun control. And there are still powerful sections of the right that accept the authoritarian view of the Administration and the Federalist Society that presidential authority must not be subject to checks and balances. But as Bush's support collapses even among conservatives, possibilities are opening for an alliance against constitutional usurpation. Earlier this year, former Democratic Vice President Al Gore initiated a promising courtship between progressive and conservative forces when he joined former Republican Congressman Bob Barr to express "our shared concern that America's Constitution is in grave danger." As Gore explained, "In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power." Administration lawlessness also emerged as a theme in the "revolt" of retired senior military officials. Noting that the United States is already engaged in military action against Iran, retired Colonel Sam Gardiner told /Democracy Now!/ on April 17, "It's a very serious question about the constitutional framework under which we are now conducting military operations in Iran."
In response, Specter is planning to call Bush Administration officials and independent constitutional authorities to a hearing this month. Specter says Bush's restrictive signing statements on the Patriot Act and the torture amendment constitute a "very blatant encroachment" on Congress's constitutional powers. The hearings will provide an opportunity for potential allies--ranging from the impeachment movement to anti-secrecy groups and from election campaigners to peace activists--to construct a common defense of the Constitution. This requires deepening today's nascent convergence into a "law and democracy" movement, and framing the efforts of diverse allies--protesters, civil liberties and human rights groups, military lawyers, legislators and others--in terms of the enforcement of constitutional principles. This alliance should be presented as pro-law, pro-Constitution and engaged in a long-term project of democratic restoration.
Such an alliance requires coordinated message building--framing debates in terms of common constitutional concerns. For example, the Iran debate can be broadened from questions of peace and security to address the limits of Bush's unilateral war powers authority. This effort could be advanced through building bipartisan support for Representative Peter DeFazio's resolution reminding the President that he cannot initiate military action against Iran without Congressional authorization.
At the grassroots level, such an alliance can make use of existing links between progressive and conservative constitutionalists, like those created by the local anti-Patriot Act initiatives, which passed resolutions in 407 communities in at least forty-three states. Grassroots activists could join to implement Nation editor Katrina vanden Heuvel's suggestion in a May 1 post on her Editor's Cut blog that "one way to 'nationalize' the 2006 election" would be to "demand that all candidates defend the Constitution."
At an elite level, influential figures like Gore and Barr might move beyond giving a speech here and there to forming a Constitutional Protection League, recruiting high-profile personalities to speak and organize on behalf of constitutional restoration. (A potential model is the Anti-Imperialist League, formed to fight US annexation of the Philippines. Notable members included Andrew Carnegie, Mark Twain, William James and Samuel Gompers.) Indeed, the key to such a strategy may be the interaction of grassroots and elite participants. Pressure from the grassroots can help mobilize the Gores and Barrs. Their leadership, in turn, can help galvanize mass support at the grassroots.
Such a strategy has the benefit of defining the issue not as Democrats versus Republicans but as defenders versus subverters of the Constitution. That will require an admission that many Democrats have previously acquiesced in Administration abuses and that Democrats in office have at times themselves overstepped the Constitution. Fortunately, the peace movement is outspoken on this topic, and Gore has acknowledged that "Democrats as well as Republicans in the Congress must share the blame" for inadequately protesting a "grossly unconstitutional program."
Ultimately, revitalization of the Constitution will depend on an aroused and mobilized public. That in turn will help--and if necessary force--Congress and the courts to take on their constitutional responsibilities for the oversight of government and the implementation of law.
Jeremy Brecher is a historian. Brendan Smith is a legal scholar and former Congressional staff member. With Jill Cutler they edited /In the Name of Democracy: American War Crimes in Iraq and Beyond /(Holt/Metropolitan).