American Journal III

In American politics, constitutional arguments about what should and should not happen are never far from the forefront. Take the case of Congressman William Jennings Jefferson, for example.

Jefferson is a Democrat member of the US House of Representatives. It emerges that he has been under investigation for allegedly accepting under-the-table payments from companies for facilitating access to African contracts and markets. Things became critical for Jefferson recently when he was secretly videotaped receiving cash from one of his clients, bundles of which worth some US$100,000 were subsequently retrieved from the freezer in his kitchen.

Emboldened by this discovery, the FBI raided Jefferson’s Congressional offices and took away documents and his computer’s hard drive. This action has provoked howls of outrage from Congressmen and Senators right across the political spectrum.

The FBI raid is seen as an egregious breach of the constitutional doctrine of the ‘separation of powers’. In this case, the Executive branch of government, represented by the FBI, has dramatically interfered with the operations of the legislative branch.

The raid on the Congressman’s offices appears, at first sight, to breach a constitutional provision that provides legal immunity for Congress members for any actions taken in the exercise of their functions as members. Even if that provision was not contained in the US Constitution, however, the underlying doctrine of the ‘separation of powers’ could clearly be read as prohibiting any such infringement by an Executive agency upon Congressional mandate and authority.

There is good reason for this. The danger of permitting any such raid to occur is that, in the future, it may open the door for a malicious US Administration to engage in the investigation, harassment and even prosecution of its political enemies.

Thanks to Clay Bennett

Both the Republican and Democratic leaderships declared the raids a constitutional outrage and demanded the immediate return of the confiscated records. Jefferson denied any criminal wrongdoing and thanked his colleagues for their gesture of support. The Attorney-General, Alberto Gonzales, reportedly threatened to resign if the records were returned to the Congressman.

President George W Bush was besieged with entreaties to take sides. In the end, he sidestepped the issue by ordering that Jefferson’s records be handed over to the Solicitor-General who would hold them for 45 days to allow a reasoned and constitutionally appropriate response to be developed. Things settled down.

One thing is certain — the US Supreme Court will be asked to rule for the first time on the very important constitutional questions raised. All three branches of government, therefore, are gearing up for a major constitutional controversy.

In that disputation it will, of course, be critical that the judges hearing the case are as impartial as possible. Judicial independence and impartiality lie at the heart of the separation of constitutional power.

For that reason, one observes with concern the rank politicisation of judicial appointments in the US (see my previous article on this in New Matilda). This is not just a matter of appointing political cronies and loyalists to the bench. It represents part of a broader political strategy by the Bush Administration to gain favour with its extreme Right-wing base.

Judges are the target of conservative evangelical Christians, for example, because of the Supreme Court’s decision in Roe v Wade. This was the 1973 case in which abortion was ruled to be permissible in certain circumstances because it was an incident of the constitutional right of a woman to privacy.

More recently, a Circuit Court Judge became the new target of evangelical ire when he ruled that a State referendum to outlaw gay marriage was constitutionally invalid because of defects in the manner in which the plebiscite was conducted.

President Bush has now jumped on this bandwagon by indicating his support for a national referendum on a law which would insert a ban on gay marriage into the constitution itself. There is no prospect that this referendum will succeed because a clear majority of the Senate is opposed to putting the matter to the people but the political advantages of banging this particular drum are obvious. (Just ask John Howard and Philip Ruddock, given their blocking of Jon Stanhope’s attempts to legitimate same-sex unions in the ACT, this week.)

In this context, the Bush Administration has discovered that it can earn easy political points by provoking congressional fights over its judicial nominees. It puts forward partisan, judicial nominees known for their ultra-conservative views, the Democrats oppose their nomination, and the White House wins.

As Republican Senator John Thane put it recently:

A good fight on judges does nothing but energise our base. Right now our folks are feeling a little flat. They need a reason to get engaged, and fights over judges will do that.

The battle over political appointments to the bench is likely to come to a head in the near future when the Senate considers the nomination to a Circuit Court (the equivalent of our Federal Court) of Terence W Boyle. His nomination is bitterly opposed by Democrats because many of his decisions in civil rights and disability cases have been profoundly conservative and have been overturned on appeal.

What’s more, his case is complicated by accusations that he has decided cases in which he has had a financial interest.

The Democrats can block the appointment by filibustering debate in the Senate. All they have to do is muster the political courage to do so. On the Democrat side, unfortunately, this is a quality in very short supply.

In the above cases, the political controversies are played out within the framework of the US Constitution. What has become much more worrying is the Bush Administration’s propensity to take political action quite outside the constitution.

Its argument that the guarantees provided by the Constitution do not apply to inmates at Guantánamo Bay is the most evident instance of this and David Hicks, languishing there, now for his fifth year, is an immediate consequence of this position.

Unfortunately, there are many other examples. The Administration has proposed that torture (broadly defined) of terrorist suspects is permissible, despite a law passed by Congress to the contrary. It acts on this proposition by the issue of what is known as a Presidential ‘signing statement’. This statement simply declares that the Administration’s interpretation of the relevant law differs from that of the Congress and that, in consequence, it is not bound by that legislation. Some 750 such signing statements have been issued since 9/11.

Another example of extra-Constitutional action, is the Bush team’s widespread surveillance of American citizens, which it justifies by declaring it is on a ‘war footing’, and the President is, therefore, acting as ‘Commander in Chief’.

This secret surveillance has only recently come to light. There are two programs. In the domestic eavesdropping program, the National Security Agency listens in on calls between American citizens and people overseas that the NSA believes may be involved in terrorist activity.

In the second program, which involves ‘data-mining’ telephone records, intelligence agencies obtain from telephone companies the records of all calls, domestic and international. The content of the calls is not monitored but the computer records are analysed to determine whether any pattern with respect to terrorism related communications can be established.

These programs not only run counter to the Foreign Intelligence Surveillance Act‘s provision outlawing any such surveillance without a warrant, they also infringe upon Americans’ constitutionally guaranteed right to privacy.

The existence of these programs, and their legal difficulties, would never have been known had the New York Times not published an article exposing the issue about the absence of judicial warrant. The Attorney-General, Alberto Gonzales, has now said that he may prosecute the NY Times under legislation passed early last century forbidding the public exposure of intelligence activity.

Most recently, new details of the Administration’s ‘extraordinary rendition’ program have come to light following the release of an European Union report into the practice. ‘Rendition’ involves the CIA kidnapping terror suspects and flying them to co-operative third countries, where they may be interrogated and, perhaps, tortured in a way that would be clearly constitutionally impermissible in America.

The report, by Dick Marty on behalf of the Council of Europe, criticises the US, in the context of the ‘War on Terror’, for developing new legal concepts that have left hundreds of terror suspects deprived of their liberty outside US territory but under US control and denied them any access to their fundamental human rights. This legal approach he concludes is:

Utterly alien to the European tradition and sensibility, and is clearly contrary to the European Convention on Human Rights and the Universal Declaration on Human Rights.

If rendition occurred in the US, it would also be contrary to the entire thread of American constitutionalism.

One hopes that this issue, like that of the Guantánamo detainees, will find its way in time to the US Supreme Court for adjudication.

But who was it that appointed those judges?