Cheney, Bush and the Royal Prerogative

October 20, 2007

Bioneers Conference

This week on Frontline the public was given a documented history of Dick Cheney’s life-long crusade to increase the powers of the presidency. Cheney was deeply humiliated when, in the 1970s, one after another his colleagues in the Nixon White House went to jail. It had been a shoot-out between the courts and congress on the one side and the executive on the other, a massacre at the OK Corral, and Cheney has been shooting back ever since. He has made a life crusade out of returning the power and, one might say, the prestige of the presidency.

When Queen Elizabeth I of England died, in 1603, she was succeeded on the throne by James I, of Scotland, a man of limited gravity and skill. The English patriarchal system had, unfortunately, been stumped when Elizabeth the virgin queen had had no children, and the lords of state were forced therefore to reach back into the royal line to come up with a successor. The patriarchal rules gave them James, who was not only the son of a traitor who had herself been beheaded, but, by all accounts, a dolt.

James was the beginning of the Stuart dynasty. He, his son Charles I, and grandsons Charles II and James II ushered into English history a full century of constitutional crisis, chaos, confusion and civil war. From this chaos and confusion eventually arose the legal rights and principles that are the basis of American constitutional law. The struggles, however, were not over in the 17th century. They go on today, and they lead us to the same conclusion that they did then: it is time to remove a king.

The contest throughout the 17th century, through all those 90 years, was the issue of the royal prerogative. “Prerogative” was the asserted power of kings to trump, deny, or overrule, decisions of the parliament and to ignore the courts. Because these kings, all Stuarts, were quite certain of their divinely-authorized powers to govern according to their personal wills, they repeatedly suspended statutes of the parliament, or in some cases dispensed statutes when they applied to friends of the royal cabal. They thought that they had the power to apply the laws to all others with the exception of the king, and dispense with laws that they did not like if they applied to the king’s friends. For these reasons they put people in prison who objected to these royal prerogatives, and refused such people bail, and when useful, tortured them to gain confessions to find co-conspirators. They refused people that they did not like the right to be represented by lawyers. They prosecuted Protestants and encouraged the careers of Catholics. They ignored the laws of parliament when it served them and spent monies that they did not have.

All of this may sound familiar. The bill of particulars that was used as the basis for throwing out James II and proclaiming the English Bill of Rights of 1689—itself the predecessor for our own Bill of Rights in the first ten amendments to our Constitution— is a bill of particulars which has uncanny application to the man who would be king today.

Through fostering the careers of fundamentalist Christians in the Justice Department and the military, to incarceration of Muslims without sentence or possibility of legal representation or bail—persons whom he suspects for no other reason than that they are Muslim—to violation of domestic and international law prohibiting torture, to massive wiretapping and surveillance in violation of FISA and the Sixth Amendment to the US Constitution, to awarding of no-bid contracts to friends, to commutation of the felony sentence of a friend, Scooter Libby, while neglecting much harsher penalties afforded to those guilty of the same crimes who are not friends, from the selection of personal friends to high office—Rice, Gonzales, Meirs, Bremer— and willingness to sacrifice the careers of those who oppose him or who argue for the truth in government—Plame, Powell, perhaps even George Tenet—to a willingness to suspend habeas corpus and to spend money which he has not got for a war without end, the United States has been brought back to a crisis or royal illegality that is a mirror image of that created by James II in 1688.

James II, the last of the Stuarts who relied upon and sought to expand the royal prerogative, was deposed. Forced out. He did not succeed in securing that royal privilege that Cheney and Bush now seek. A few of those in Parliament—stronger than those currently in our Congress—sent him packing. His successors, William and Mary, were told never to do these things again. They agreed. The document that solidified this contract between the incoming sovereigns and their people was called the English Bill of Rights of 1689. America was still a colony then and was the beneficiary of the promises contained therein. Those promises were later incorporated into our Bill of Rights of 1789. We got these rights the hard way, through the course of one quiet revolution in 1689 and one bloody revolution in 1776.

Earlier, before James II, Charles I, James’ father, had lost his head after a long civil war also fought over the issue of the royal prerogative. Much earlier than that, 400 years before, King John—bad John of Robin Hood days, bad John who bled the country white for his French wars—was also made to kneel and grant the right of habeas corpus, independent courts, and assembly to consider taxes.

Kings being thrown out for attempts to extend and expand the royal prerogative, therefore are not new to us. It is the 700-year continuing theme of our history that we must, over and over, assert the rule of law above the king.

Kings have not always lost. But when they did, their defeat was important for the advance of the rule of law and these victories for the people became the foundation for our constitution. The Bush and Cheney violations are the same violations, that is, for which a king was deposed in 1689, for which a king was beheaded in 1649, and for which a king was forced to kneel and beg for forgiveness in 1215.

We let these matters continue today, therefore, at the risk of abandoning the most precious and most hard-won privileges of citizenry that any people ever had.

Nor are the excuses even all that different. King John wanted to protect England from the French; Charles also wanted to protect England from the French; James wanted to protect England from the Protestants, the unbelievers; King George of Texas wants to save America from Muslims. All that James II required to save his country, he said, was the trust of his parliament in him as a leader and defender of the faith. All that was required of them was that they grant him the right to issue his own decrees, to give out signing statements for his own times.

Which brings us to this most grievous of current abuses. In some number of cases above 900, this current president of the United States, descendant in his authority from Washington, Adams and Jefferson who knowingly took their authority from the English Bill of Rights of 1689, has signed into law statutes brought to him by the legislative body—that body responsible for making such laws—entirely responsible according to the constitution—and has signed such laws with his own caveat, saying that he will not enforce them in any way with which he disagrees. He will, that is, ignore the law as passed and enforce the law as he sees fit, according to his own will. This is the precise argument of James II and Charles I, those who lost the battle for the prerogative in the 17th century.

Primarily responsible for such signing statements, according to Frontline, has been Dick Cheney’s legal alter ego, lawyer David Addington with the assistance of law professor John Yoo. If Cheney, Addington and Yoo were once again asserting the royal prerogative, they could not be clearer. They are saying that because the president is commander in chief, under the constitution he may do anything that being commander requires: declare his own war, conduct wiretaps, torture, imprisonment, deny bail, deny the right to see lawyers. He may, that is, throw out 700 years of constitutional progress and return to the absolute supremacy of kings.

Do not underestimate the Cheney-Addington assertion as if it were some fairyland assertion of conservative fanatics. Do not think they could not mean it. Do not think that a man raised in the American state of Texas and trained in the New England environment of Yale would have the wisdom to deny this push by the NRA man from Wyoming and his hip-shooting lawyer. Power absolutely corrupts; it blinds the mind, feeds the emotions and inflames the heart. Power is its own kind of addiction and those who partake thereof in large doses lose their collective minds. Heroin is a lesser drug than power and Cheney and Addington are hooked on it.

Masters Cheney and Bush have declared a war, unilaterally, on their own, against unknown enemies, to last for an unknown length of time, to take place anywhere in the world and as a consequence of which they declare that they can ignore the laws of Congress and the laws of nations for as long as they please, or until they declare the war over. Since the war might last forever, these powers might last forever. James II never dreamed of asserting such power, and James II was sent packing in a time that we think was more primitive than our time, 300 years ago.

What powers more than these asserted by Mr. Bush did any king ever have? And if it walks like king, talks like a king, and ignores the law like a king, is it not a king pretending to be a president?

You may say, with relief, that at least our kings do not possess an inherited right. But is this president not the son of a president, and is the other brother and son, Jeb, not waiting in the wings? Was James II not similarly the brother of Charles II, the son of Charles I? Are they not lining up on the one side to seize power, and we on the other to prevent its seizure, much as did our ancestors 300 years ago?

Give them a self-declared war that will last forever and will they not have an excuse to continue to ignore the Congress, and therefore the people, for that same length of time? Is that silent, progressive attempt to rationalize their power through the opinions of Addington and Yoo any different, really, than an oh-so-silent revolution, this time reversing the quiet revolution of 1689?

Can we pretend that we have not seen and have not read Presidential Directive 51 that gives to Vice President Cheney the power to coordinate and override the legislative branch either as advisor to Bush or as his successor in the event of a “national event” which threatens American interests anywhere around the globe? Can we pretend that we do not see because we would certainly, most certainly, rather not see?

Can we have the luxury of not choosing sides? Of not seeing the inexorable attraction, the Siren-like mesmerizing attraction of power? The addiction to power? Ask anyone who has had power and lost it; power is the cruelest addiction of all.

When facts and law and our knowledge of the addiction of power cry out for attention and the one remedy we have is impeachment, can we do less than clamor for its consideration?

I make this appeal as a former practioner, a committed devotee of the law. I am a flaming patriot because of our long legal tradition and because in my career I have seen it in contrast with other legal systems in the world. I have negotiated and mediated and bargained and struggled against corruption in other systems, and I know the historical miracle of the principle of the law above the king. The struggle is not between you and me on one side and Bush and Cheney on the other. It is between the rule of law and the temptation of kings. If you are on the side of the law, then you must vote to impeach.

But the matter does not end there. If the law is not your bailiwick but you are persuaded that truth telling by public officials is important, then it is your ox too that is being gored. If it matters to you that a war for oil was promoted by slogans and propaganda concerning a mushroom cloud and WMD, that is, by outright falsehoods, or that a president could say up to two weeks before his war—and after two years of planning and deploying troops for his war—that he had not made up his mind about his war and that the war depended entirely upon Saddam Hussein, if this outright deception and fraud is important to you because you believe that truth telling is the foundation of all peace and social order, then you have a stake in this cause, as well.

If you are persuaded that the advance of civility and decency is important, that civilization is a process of consciousness raising over the life of the species and that civilization is not the same as militarization, that the cause of civilization depends not only upon truth telling but also upon decreasing our dependence upon the bludgeon and the bomb, that education and diplomacy and negotiation and consideration of the rights of the less fortunate and the less wealthy and the sick and the halt and the lame are important, then you have to think about what you will do to preserve—not just the law— but also civilization.

If you are persuaded that hiring a mercenary army and that the practice of holding mercenaries outside the application of any law of any nation is an egregious abuse of royal power; if you are alert to the disguise of “only 160,000” troops while another 160,000 mercenaries are paid to kill and to fight and to drive trucks and to cook and to do the things that soldiers used to do but that mercenaries are now paid many times more than soldiers are paid, then you have to wonder at the course of American civilian control, and if you care about America’s place in civilian history you have to think what you will do to preserve that history that you were so proud of in school.

If you are appalled at extraordinary rendition, the rationalization of kidnapping and torture without the slightest shred of due process, if you think that the denial and prolonged cover-up of such crimes is important and damaging to your own security and your ideal of democracy, or if you are persuaded that hypocrisy is as repugnant in the temples of a democracy as Christianity teaches that it was 2,000 years ago in the temples of Jerusalem, or hypocrisy in a super wealthy president is as important as it was for two millennia of super wealthy popes, or if you are worried about the double standard of politicians who go after the religious abuse of pedophiles but sanctimoniously ignore the war abuses that create PTSD, then you must stand up to hypocrisy in this presidency as well, call a lie a lie, label a torture a torture, a crime a crime, and reconsider your reluctance to impeach.

If it bothers you that when you sit in the coffee houses of the world and engage foreigners in conversation they tell you of their fear of America, their experience that America is now the most de-stabilizing and most dangerous country on the planet, and if it matters to you that they look you in the eye and plead with you to do all you can to keep Mssrs. Bush and Cheney from bombing Iran, spreading the conflagration to the whole of the Shiite world, then you know that you have no time to spare; that you cannot wait until the Bush term ends because the bombing of Iran is currently planned for before the end of the term,

And altogether if you vote in your conscience and your heart for stability and civilization, for America’s place in history, for her place in the evolution of the rule of law, for the dignity of truth telling and the cause of civil restraint above the myth and destruction of militarization, if you vote for your country to be a beacon of light rather than a smoldering coal in the dark furnace of secrecy and hypocrisy, then—for all these reasons—for the love of civility, decency, history, the law and your own dignity, you must vote to impeach.