Revolution Blog

no turn of the tide

Published on 2012-03-14
Recently, Defense Secretary Leon Panetta was on Capitol Hill testifying(external link) before the Senate Armed Services committee. In his remarks, he denied that even the fig leaf of obtaining congressional assent to military action was no longer required, and that the President can legitimately start wars solely on his own initiative, so long as he has a standing invitation to do so from the UN, NATO, or some other international body. Congress can then be informed, rather than consulted, about the deployment of US military forces.

This brazen declamation has raised quite a few eyebrows, and provoked the ire of Senator Sessions, who does a fair job of looking incredulous at what he is hearing. However, this position is fully consistent with policies adopted by the Obama administration from the get-go. In 2009 President Obama gave a speech at the National Archives in which he addressed the issues of the blatant unconstitutionality of the policies regarding torture and indefinite detention at Gitmo which had been adopted by the Bush administration.

According to Obama, the problem was not what was being done, but how. The key issue was that there was no formalized process. Under Bush, one man could just consign someone on a whim, with no procedures or required approvals. Therefore, as the new President he was adopting new procedures to be followed in the future, so that the signatures of multiple persons would always be placed on forms authorizing the use of torture, indefinite detention, etc. Obama then took credit for defending the due process requirements of the constitution — and the audience applauded! Apparently, illegal acts are fine so long as there's a proper form to fill out to authorize them.

This view is echoed in Panetta's testimony, in which he points out that "due process" does not necessarily imply "judicial process." So long as there is still a process, even if it's performed entirely within the wheels of the executive branch, the due process requirement is adequately met.

While this might sound startling, it isn't even a new idea. For example, statutes require that in order for the IRS to seize money, assets, or even mere records from any party, they are required to apply to a US federal district court for an enforcement order. (See Schulz v. IRS, 04-0196, 2nd Circuit Court of Appeals, January 25, 2005.) And yet of course they do not actually do this; indeed, the AUSA representing the IRS in the Schulz case actually testified on the record that if the Service was required to follow due process in its operation, it wouldn't be able to do its job. The collections "process" is therefore conducted entirely within the agency itself, and the courts be damned.

The only difference here is that the ongoing perversion of "due process" is now being extended into fresh territory. However this is mere escalation, not some fundamental or radical departure from established practice. The executive branch has long since rendered the judicial branch effectively irrelevant, a result only exacerbated with the Patriot Act. The Congress itself is now going down the same route.

That they should actually be surprised by this is frankly amusing. There is no turn of the tide here, despite the fact that some members of the government may only now be beginning to comprehend where that tide is actually flowing.

The true turn of the Tide today is to be found here(external link). smile