War, Trials, Leakers, Investigations, Packed Courts, and a Constitutional Crisis
By Tom Engelhardt tomdispatch.com

2006 is sure to be the year of living dangerously — for the Bush administration and for the rest of us. In the wake of revelations of warrantless spying by the National Security Agency, we have already embarked on what looks distinctly like a constitutional crisis (which may not come to a full boil until 2007). In the meantime, the President, Vice President, Secretaries of Defense and State, various lesser officials, crony appointees, acolytes, legal advisors, leftover neocons, spy-masters, strategists, spin doctors, ideologues, lobbyists, Republican Party officials, and congressional backers are intent on packing the Supreme Court with supporters of an “obscure philosophy” of unfettered Presidential power called “the unitary executive theory” and then foisting a virtual cult of the imperial presidency on the country.

On the other hand, determined as this administration has been to impose its version of reality on us, the President faces a traffic jam of reality piling up in the environs of the White House. The question is: How long will the omniscient and dominatrix-style fantasies of Bushworld, ranging from “complete victory” in Iraq to non-existent constitutional powers to ignore Congress, the courts, and treaties of every sort, triumph over the realities of the world the rest of humanity inhabits. Will an unconstrained presidency continue to grow — or not?

Here are just a few of the explosive areas where Bush v. Reality is likely to play out, generating roiling crises which could chase the President through the rest of this year. Keep in mind, this just accounts for the modestly predictable, not for the element of surprise which — as with Ariel Sharon’s recent stroke — remains ever present.

Who, after all, can predict what will hit our country this year. From a natural-gas shock to Chinese financial decisions on the dollar, from oil terrorism to the next set of fierce fall hurricanes, from the bursting of the housing bubble to the arrival of the avian flu, so much is possible — but one post-9/11 truth, revealed with special vividness by hurricane Katrina, should by now be self-evident: Whatever the top officials of this administration are capable of doing, they and their cronies in various posts throughout the federal bureaucracy are absolutely incapable of (and perhaps largely uninterested in) running a government. Let’s give this phenomenon a fitting name: FEMAtization. You could almost offer a guarantee that no major problem is likely to arise this year, domestic or foreign, that they will not be quite incapable of handling reasonably, efficiently, or thoughtfully — to hell with compassionately (for anyone who still remembers that museum-piece label, “compassionate conservative,” from the Bush version of the Neolithic era). So here are just four of the most expectable crisis areas of 2006 as well as three wild cards that may remain in the administration’s hand and that could chase all of us through this year — adding up, in one way or the other, to the political tsunami of 2006.

1. Iraq. Bush’s war (and occupation) of choice has shadowed him like a boogeyman from the moment that banner over his head on the aircraft carrier USS Abraham Lincoln announced “Mission Accomplished” and he declared “major combat operations” at an end on May 2, 2003. On that very day, in news hardly noticed by a soul, one of the first acts of insurgency against American troops occurred and seven GIs were wounded in a grenade attack in Falluja. As either a prophet of the future or a master of wish-fulfillment, the President was never more accurate than when, in July 2003, he taunted the Iraqi guerrillas, saying, “Bring ‘em on.” Well, they’ve been bringing it on ever since.

Unwilling to face the realities of its trillion-dollar folly of a war and dealing with presidential polling figures entering free fall, the administration did the one thing it has been eternally successful at — it launched a fantasy offensive, not in Iraq, but here at home against the American people and especially the media. A series of aggressive speeches, news conferences, spin-doctored policy papers, and attacks on the opposition as “defeatists who refuse to see that anything is right,” all circling around an election likely to put an Islamic theocratic regime in power in Baghdad, pumped up the President’s polling numbers modestly and, more importantly, caused reporters and pundits to back off, wondering yet again whether we weren’t finally seeing the crack of light at the end of that tunnel. (Wasn’t the President implicitly admitting to the odd mistake in Iraq policy? Wasn’t he secretly preparing his own version of withdrawal? Weren’t the Iraqis turning some corner or other?)

It’s been a strange, brain-dead media era in which, far more than the American people, the pundits never seem to learn. Most pathetic of all, in what might have been a straightforward parody of the famed moment when a group of senior advisors from past administrations (“the Wise Men”) met with President Lyndon Johnson and urged him to reconsider his Vietnam policy, the Bush administration gathered together 13 former secretaries of state and defense (including Robert McNamara and Melvin Laird from the Vietnam era) for a photo with the President. Also offered was an Iraq dog-and-pony show involving painfully upbeat reports from Chairman of the Joint Chiefs Gen. Peter Pace and Ambassador to Iraq Zalmay Khalizhad. In return, the 13 former officials, including Colin Powell and Madeleine Albright, got a full 5-10 minute “interchange” with the President or (as the Dreyfuss Report did the math) all of 23 seconds of consultation time per secretary. It was the Wise Men (and Woman) Photo Op and it caught something of Bushworld and its peculiar allure.

However complicated the situation in Iraq may be, here’s an uncomplicated formula for considering administration policy there in the coming year. After every “milestone” from the killing of Saddam Hussein’s sons and the capture of Saddam himself through the “handing over” of sovereignty and various elections, things have only gotten worse. Remind me why it should be different this time? In fact, while the President warned endlessly about violence before the recent election, the violence since has been far worse with 28 Americans and hundreds of Iraqis dying in just a single tumultuous four-day period. Or put another way, whatever government may be formed in Baghdad’s Green Zone, it will preside over a Bush-installed failed state, utterly corrupt (billions of dollars have already been stolen from it) and thoroughly inept, incapable of providing its people with anything like security. In fact, just the other day, two suicide bombers, dressed in the uniforms of “senior police officers” and with the correct security passes, made it through numerous checkpoints and into the well-guarded compound of the Interior Ministry where they blew themselves and many policemen up. Iraq’s government, such as it is, has also proved incapable of delivering electricity or potable water, or of running its only industry of significance, the oil business (overseen by, of all people, Ahmed Chalabi), which is now producing less energy than in the worst moments of the Saddam Hussein/sanctions era. The country is already in a low-level civil war; its American-supported military made up of rival militias preparing to engage in various forms of ethnic cleansing; its police evidently heavily infiltrated by the insurgency; and its most important leaders are Shiite theocrats closely allied with Iran. The insurgency itself shows not the slightest sign of lessening.

Meanwhile, at home, figures as disparate as Congressman John Murtha and former National Security Advisor Zbigniew Brzezinski are demanding a military disengagement by the end of 2006 and in Brzezinski’s case calling on the Democrats to come out against the war. (“Finally, Democratic leaders should stop equivocating while carping. Those who want to lead in 2008 are particularly unwilling to state clearly that ending the war soon is both desirable and feasible.”)
Iraq is a minefield for the Bush administration. Prepare for it to blow this year.

2. Trials (and Tribulations) of Every Sort. Of course some of the description of Iraq above has become increasingly applicable to the Bush administration as well. It is, after all, run by fundamentalists and presidential cultists, presiding over what increasingly looks like a FEMA-tized, failed state, riddled with corruption, and at war with itself. In 2006, Bush and his associates face a quagmire of potential scandals, exposures of corrupt and illegal practices, and trials and tribulations of all sorts. There is, as a start, Special Counsel Patrick Fitzgerald, still on the Plame case job.
After a brief flurry of activity in November when the National Law Journal’s 2005 “lawyer of the year” convened a new grand jury to hear further evidence, the Fitzgerald investigation dropped off just about everyone’s radar screen. Fitzgerald, however, is a dogged character, playing things very close to the vest. No one can know what exactly he will do, but he is reportedly preparing material on Karl Rove for the new grand jury. It would be reasonable to expect that, sometime in the next two or three months, he might indeed indict “Bush’s brain” and then, rather than winding down his investigation, turn from those who attempted to obstruct his view of the Plame case to the case itself. In other words, if you happen to be a betting soul, you might consider putting your money on the possibility that the Plame case investigation will reach ever higher in the administration — and Fitzgerald seems carefully shielded within the Justice Department from administration tampering.
At the same time, even though former House Majority Leader Tom (the Hammer) DeLay got hammered and officially ended his bid to regain his leadership post last week, the Texas and Washington parts of the Delay corruption scandal are likely only to grow and spread. In Texas, DeLay’s money-laundering case was not, despite his deepest wishes, thrown out of court and is now expanding into an election spending scandal involving the National Republican Congressional Committee and linked to the Abramoff case. Lobbyist Jack Abramoff, who plied endless (mostly Republican) congressional reps with favors and perks in return for influence, pled guilty last week to public corruption charges and turned state’s evidence. He has claimed he possesses incriminating material on 60 congressional lawmakers (as well as many of their aides).

Last week, the Washington Post reported, federal prosecutors turned “up the pressure on a former senior aide to Rep. Tom DeLay (R-Tex.) in the clearest signal yet that the sprawling public corruption investigation is now focusing on House Republican leadership offices.” Though the career prosecutors from the Justice Department’s Office of Public Integrity who turned Abramoff, seem to have been reasonably insulated from administration pressure, the case threatens to hit the Republican Congress hard, just as the Plame case threatens to empty the higher realms of administration power. It looks like at least a limited number of cases will be brought against lawmakers this election year. Unlike Fitzgerald, however, the career prosecutors in the Abramoff case are overseen by a notorious Bush recess appointee, Alice Fisher. Her nomination was opposed even in a Republican-controlled Senate as she is without prosecutorial experience (though she has some experience in the subject area of Guantanamo interrogations and is tied to Tom DeLay’s defense team). So look for future fireworks, conflicts, scandals, and plenty of leaks on this one.
In the meantime, the courts will be busy indeed. Just count a few of the ways: The question of whether Bush’s warrantless NSA wiretaps have polluted other terrorism cases will hit the courts this year, while the kangaroo “military” tribunals in Guantanamo have just started up again, and various cases having to do with the limits of presidential power (or the lack of them) are likely to arrive, not to speak of the four Texas gerrymandering cases (think, once again, Tom DeLay) the Supreme Court has agreed to take up before the 2006 elections that could put five now-Republican seats in the House up for grabs. (A court already tarred by the 2000 election might rule surprisingly on this one.)

3. War with the Bureaucracy. Until quite recently, with an oppositionless Congress, increasingly right-wing courts, and a cowed media, traditional Constitutional checks and balances on administration claims of massive presidential powers and prerogatives have been missing in action. However, the founding fathers of this nation, who could not have imagined our present National Security State or the size of this imperial presidency, could have had no way of imagining the governmental bureaucracy that has grown up around these either. So how could they have dreamed that the only significant check-and-balance in our system since September 11, 2001 has been that very bureaucracy? Parts of it have been involved in a bitter, shadowy war with the administration for years now. It’s been a take-no-prisoners affair, as Tomdispatch has recorded in the first two posts in its Fallen Legion series, focusing on the startling numbers of men and women who were honorable or steadfast enough in their governmental duties that they found themselves with little alternative but to resign in protest, quit, retire, or simply be pushed off some cliff. This administration has done everything in its power to take control of the bureaucracy. As hurricane Katrina showed with a previously impressive federal agency, FEMA, Bush and his officials have put their pals (“Brownie, you’re doing a heck of a job”), often without particular qualifications other than loyalty to this President, into leading positions, while trying to curb or purge their opponents. At the CIA, for instance, just before the last election former Representative Porter Goss, a loyal political hack, was installed to purge and cleanse what had become an agency of leakers and bring it into line. Administration officials have, in fact, conducted little short of a war against leaks and leakers. To give but a single example, the origins of the Plame case lie in part in an attempt by top officials to administer punishment to former Ambassador Joseph Wilson for revealing administration lies about an aspect of Saddam Hussein’s nonexistent weapons of mass destruction program. What those officials (as leakers, of course) did to his wife was clearly meant as a warning to others in the bureaucracy that coming forward would mean being whacked.

And yet, despite the carnage, as Frank Rich pointed out last Sunday (The Wiretappers That Couldn’t Shoot Straight), the New York Times reporters who finally broke the NSA story did so based not on one or two sources but on “nearly a dozen current and former officials.” Doug Ireland laid out at his blog recently how, despite fears of possible prosecution — the first thing the President did in the wake of these revelations was to denounce the “shameful act” of leaking and the Justice Department almost immediately opened an investigation into who did it — one of them, former NSA analyst Russell Tice, has gone very public with his discontent. He has already been on Democracy Now! and ABC’s Nightline, saying that “he is prepared to tell Congress all he knows about the alleged wrongdoing in these programs run by the Defense Department and the National Security Agency in the post-9/11 efforts to go after terrorists.” He claims that the NSA spied on “millions” of Americans, including, it was revealed recently, a Baltimore peace group.

The war with the bureaucracy and even, to some extent, with the military — high-level officers, for instance, clearly leaked crucial information to Rep. Murtha before his withdrawal news conference — will certainly continue this year, probably at an elevated level. The CIA has been a sieve; the NSA clearly will be; at the first sign of pressure, expect the same from career people in the Justice Department; and an unhappy military has already been passing out administration-unfriendly Iraq info left and right. Administration punitive acts only drive this process forward. Any signs of further administration weakness will do the same.

The “warriors” in the bureaucracy will, in turn, fuel further media and congressional criticism. Congress, worried about next year’s election, is an exceedingly fragile pillar of support for the President. Conservatives, as Todd Gitlin pointed out in a recent Los Angeles Times op-ed, are alienated or worse; certain Republican senators are angry over the way the administration is sidelining Congress. Even some right-wing judges have been acting out. And, of course, there’s the possibility that, in some chain-reaction-like fashion, the dike will simply burst and we will catch sight of something closer to the fullness of Bush administration illegality — sure to be far beyond anything we now imagine.

4. Election 2006. Count on it being down and dirty. This could be a street brawl because, with the Republican loss of even one house of Congress, the power to investigate is turned over to the Democrats as we head into a presidential election cycle.

Consider points 1-3 above: Iraq as a rolling, roiling, ongoing disaster, Republican congressional representatives and administration figures under indictment, bureaucrats leaking madly, possible seats put into play in Texas, presidential polls dropping — all having the potential to threaten an administration already filled with the biggest gamblers in our history and capable of doing almost anything if they think themselves in danger. So what can the President and his pals draw on?

Administration Wildcards

Court-packing: As Noah Feldman pointed out recently in the New York Times Magazine, the rise of the imperial presidency has a history that goes back to Thomas Jefferson’s decision to conclude the Louisiana Purchase, while the presidency’s outsized “war powers” go back at least to Abraham Lincoln. The President has long had powers unimagined by the founding fathers, but the Bush administration still represents a new stage in the obliteration of a checks-and-balances system of government. Last week, in an important, if somewhat overlooked, front-page piece in the Wall Street Journal (“Judge Alito’s View of the Presidency: Expansive Powers”), Jess Bravin reported on a speech Sam Alito gave to the right-wing Federalist Society in 2000 in which he subscribed to the “unitary executive theory” of the presidency (“gospel,” he called it) which puts its money on the supposedly unfettered powers of the President as commander-in-chief. This theory has been pushed by administration figures ranging from the Vice President and his Chief of Staff David Addington to former assistant attorney general and torture-memo writer John Yoo. As Alito put the matter in his speech: “[The Constitution] makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power — the whole thing.” And Yoo put it even more bluntly while debating the unitary executive theory recently. In answering the question, “If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?” he responded, “No treaty.”

Evidently, John Roberts subscribes to the same view of presidential powers (as Harriet Meirs certainly did, at least when it came to George Bush). In other words, the administration is trying to pack the Supreme Court with judges who are, above all, guaranteed to come down on the side of the President in any ultimate face-off with Congress or the courts. This is surely the real significance of the Alito nomination, should it go through. In any Constitutional crisis-to-come the “commander-in-chief” is trying to predetermine how things will fall out if his own power is at stake.

Terrorism: From September 11, 2001, the terrorism/fear card has certainly been the most powerful domestic weapon in the administration’s arsenal. In the event of a major (or several smaller) terrorist strikes in this country, the Bush administration could certainly be the major beneficiary, but even that is no longer a given. History tends not to happen quite the same way twice and no one knows whether, under the shock of such an event or events, the post-9/11 moment would simply be repeated or whether Americans might feel that this administration had completely betrayed them. A terrible war, lousy government, hideous crisis management, and then, on the one thing they swore they did best — protecting the country from terror — failure. Still this is certainly an administration wild card.

Wag the Dog Strategies: In a crisis of power, there is no reason to believe that the officials who already led us into Iraq might not be willing to gamble on a Wag the Dog strategy — that is, launching an operation they had been hankering for anyway that might also turn attention elsewhere. Rumors and speculation about a massive air attack on Iran (or on “regime change” in Syria) have been kicking around since at least the spring of 2005. These have begun circulating again recently. Such a thing is certainly possible (more so, obviously, should Benjamin Netanyahu happen to win the Israeli election in March), but whether the effect of this on the administration’s fortunes would be positive for long is also unknown. It certainly seems one path to madness, not just in Iraq but also on the oil markets. (If you happen to be a devotee of oil at $100 a barrel, you might quickly get your wish.)

Is a Constitutional Crisis in the Cards?

Until 2005, it wasn’t that the Bush administration didn’t make more than its share of mistakes; thanks to 9/11, it simply had plenty of wiggle room. It could always turn attention elsewhere. It always had the fear and terror cards ready to be played. These days, turn people’s attention elsewhere and they’re likely to see yet more disaster, corruption, incompetence, and illegality. In 2006, the administration has a lot less wiggle room than it used to. Polling figures reflect that vividly. When new disasters hit, whether in Iraq or New Orleans, it’s becoming harder to take American eyes off them.

Let me then offer one of those predictions — surrounded by qualifications and caveats — that all writers should be wary of. If in a bitter, dirty mid-term election, filled with “irregularities,” one house of Congress or both nonetheless go to the Democrats, which I believe possible (despite their low polling figures at the moment), expect the investigations to begin. Expect as well that the Bush administration will then trot out that “obscure” presidential philosophy of power and claim that the Congress has no right to investigate the President in his guise as Commander-in-Chief.
That is why the Alito nomination is so crucial and why 2007 may prove the year of constitutional crisis in the United States.

Tom Engelhardt, who runs the Nation Institute’s Tomdispatch.com (“a regular antidote to the mainstream media”), is the co-founder of the American Empire Project and the author of The End of Victory Culture, a history of American triumphalism in the Cold War. His novel, The Last Days of Publishing, has recently come out in paperback.

Copyright 2005 Tom Engelhardt