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Saturday, July 22, 2006

Developing Success Criteria For A Congressional Oversight Plan

I’ve been wrestling with an oversight plan by We the People of Congress. To do that, it’s important to comprehend where we are, and what’s not working. I’d like to share my perspective on the mess that’s been created, and some ideas on how we got there, what can be done, and a framework to define what needs to be done.

* * *

As you read these remarks, keep in mind where we are going: Creating a system of Congressional oversight that works, and use this structure as a means to gather information that will understand what has gone wrong, then fix the problems, not simply put Band-Aids on the symptoms.

There are two issues:

  • 1. What should we expect of Congress, and what kind of oversight plan does Congress need to have for itself to check the Executive; and

  • 2. What kind of oversight plan do We the People need over Congress and the Government.

    The first is (partially) resolved through the election. The second is resolved through a New Constitution. It is not an either or approach; rather, we can discuss both, either, or something else.

    We need leadership.

    * * *

    Signing Statements

    Let’s consider the signing statements. The point of this is to guide the discussion away from whether signing statements are or are not lawful (they are illegal); rather, the point is to demonstrate to the public the results of signing statements: An executive that chooses to ignore guidance: The Law and Will of The People. You can call the conduct what you like; the point is that the purpose of government is to produce better results than we could if we were left to our own devices.

    Singing statements cast aside the inputs of the other two branches. When someone freely chooses to ignore the expertise of others, then those who embark on that path are alone responsive for the mess. It is not the job of others to take responsibility for solving the problem. Rather, it’s the job of others to create a system that will better compel others to do what is prudent: Stay within the bounds of the law, rely on experts, and improve the situations.

    . . .

    Signing statements are used to avoid doing what should be done. This message means nothing to the RNC. Rather, the way forward, when discussing the issues with the RNC, is to think in terms of how their political theory puts them in a worse position: By relying on signing statements, they are worse off – they freely assent to illegal conduct, and then this makes a mess of things.

    Signing statements may be a prudent thing to do when Congress is imposing power. The problem is when the Signing statements are used to avoid facing certain facts of life – that the law is there as a lesson, or reminder of what needs to be required. Oaths are taken for the same reason: Because to permit people to do what is in their inclination, we do not have much.

    Think broadly in terms of Member of Congress salaries. We pay them quite a bit of money; in return they take an oath to do something that they would otherwise not do. This is a promise and an agreement. When they fail, this isn’t a matter of the “public” being harmed; it’s an issue of criminal law and malfeasance. We the People, and the State have been harmed: We are paying people to take an oath; but we are not getting their full attention to assert that oath. In short, they promised to do something that they would otherwise not do; and in return, for that promise, they have taken money without any intention of ensuring that they fulfill their promises.

    Watergate was about finances. But that was only the start. Today’s oversight system, above and beyond the internally-worthless Congressional ethics system, is focused on issues of public corruption, kickbacks, lobbying, and payments. This is very interesting. Unfortunately, the nation seems to have focused on the issues of lobbying, without looking at the fundamental issue: Abuse of power. Putting aside the issue of abuse of power as an actionable offense, the common thread between Iran-Contra, Watergate, the Charles I abuses, Revolutionary War, and the Bush Administration Abuse is the simple notion of just that: Abuse of power.

    The way forward isn’t to look back at what did or didn’t happen after Watergate or Iran-Contra Clearly, the Watergate-Iran Contra legacy has left us with what we have: New methods to abuse power.

    Going forward the solution is to not chase, as was done in Watergate -- the narrow issues of which campaign finance laws were broken -- but the broader system which permits abuse to occur. It is my contention that the core problem isn’t the system of failed oversight – which is a symptom – but a structural problem within the Constitution that permits all three branches to do nothing while one branch secretly abuses power. The results are disastrous when the abuse of power is freely assented to by an enabling Congress.

    Rather than check power, the way forward is to deny the actors the ability to abuse that power. This will remove the discretion of Congress to either review or not review a matter or present threat to the Constitution. If they have no power to assert something; and that then-stripped power when asserted is prosecuted, then we will have a system of credible checks and balances.

    This is why I support the notion of a 4th Branch of Government: That will have the sole and exclusive power to do what the Executive Ignores, and the Congress fails to do: Conduct investigations, gather facts, and work directly with the public to devise solutions Think of this as something that will remove from Congress and the Executive the GAO and IGs, and forcefully inject into each of the departments all three branches, independently reporting their information to their respective branch. I am not one to believe that this is the only option; I remain open, by way of results, to be convinced that the system, that we have on the Constitutional paper, can work. Although by the results of 2000-2006 I remain unconvinced the current Constitution is working, I remain open to the possibility that within the current framework there can be devised a system of governance that resolves and address the core problem.

    The problem is when the government abuses power by manipulating the open media; then compels the nation to continue funding illegal wars. We have a higher debt, and this President has a mess for himself in the Middle East.

    As you think about what you would prefer, think of what we generally have; then think of what would generally solve the problem. We need not consider doing more of what does not work. Rather, the goal is to think of something new, different, and unexpected.

    * * *

    Signing Statements: The Danger of Going It Alone – You Alone Are Responsible for the Disaster

    Broadly speaking, the “signing statements” are thought to be something that the President can use at his discretion. Rather than look at this as a problem (although it is), look at it as an opportunity. The President, by asserting he has the power to issue a signing statement, clearly had the self-asserted power to “do what he wanted”. In other words, he had no constraints. Use that against him:
    “Despite having no constraints, he still makes a mess of things. This President refused to rely on his own party in Congress to seek assistance, or get their in put. Despite the legal experts in the Judiciary Branch, the President refused to permit legal issues in 2001 to get reviewed by the court. Rather, he chose to go it alone.”

    How many in Congress and the Executive Branch are kicking themselves wishing, “I wish Saddam were back, and that he could act as a check on the Iranians.” Saddam is gone; now the US is in a worse position: The US is not willing to act as a check on itself, either at home, or abroad.

    Again, the time to have asserted the rule of law, gathered facts, and complied with the forces of prudence was in the wake of the 2000 election. The NSA and Executive freely chose to ignore the rule of law, and engage in surveillance before Sept 2001. One lie leads to another; and one abuse, when unchecked, leads to more abuse.

    By choosing to wage war in Iraq well before 2000, this nation chose to attach itself to the Geneva requirements as affirmed in Hamdan. Choices today attach themselves to responsibility for the results; just as we cannot pick and choose the law, we cannot pick and choose accountability. So it goes with signing statements: This Executive, by saying he can enforce or not enforce the law, now has no excuse for the disaster he created: He asserted he had the power to do what he wants, but refused to exercise that self-appointed (illegal) power to do just that. Even when he’s trying to violate the law, he still makes a mess of things. That is incompetence on a grand scale, well displayed on the Streets of Baghdad.

    But not satisfied with accountability in Baghdad, this President wants to wide the distraction to Lebanon, Iran, and Syria. Putting aside the issue of lack of manpower, and inadequate world support, the US has no legal foundation to wage illegal war. Just as the US pointed to illusory evidence over Iraq, so too is the US making up evidence related to what did or didn’t happen between Iran-Syria-Lebanon-Hamas-Hezbolla.

    Because of the abuse of trust over the issues of WMD, the US has exhausted the reasonable basis to believe what it says on other issues. It comes down to one issue: Where’s the evidence of what the US is saying is or isn’t happening between Syria-Iran-Lebanon. The only evidence we know for sure is that Israel is killing civilians because two Israeli military personnel were kidnapped.

    But recall what the Israelis did in the 1980s: The promised to wage a war to end terrorism. But they created a mess in Lebanon, and Syria was the only nation able to provide (tenuous) stability.

    The core problem is this President was told well before he took office what the risks were in Iraq. The United States in 1993 did not advance into Baghdad because of the very problem this President created and is facing: Death, destruction, and chaos.

    It’s his mess. It’s his signing statement. It’s his sole responsibility. It’s his decision. It’s his unitary theory. We see the results of Unitary Theory: Disasters, then a unitary goal of creating new disasters to distract attention from the other disasters.

    That’s not leadership. It’s incompetence. This is something that should have been identified earlier, lawfully nipped in the bud, and effectively mitigated. This Congress failed to put the breaks on. Rather, by assenting to illegal conduct, refusing to investigate, yet still funding illegal activity, this Congress is not longer in a defendable position of a “rubber stamping Congress, full of immunity.” Rather, they have become willing participants in illegal war crimes, and have refused to stop what they have the power to stop: Violations of international law.

    Congress appears to believe that nothing will happen, the public can’t do anything, and there’s no accountability. That may be true at home, but there are other nations and there are international courts. Any nation may try war criminals.

    This President has chosen to abuse power not just at home but abroad. He’s making a mess of things. But this isn’t simply a matter of diplomacy and foreign affairs It’s not a question of what is next. The other nations around the globe see the US is adding fuel to the fire, and not ensuring that there is restraint. Rather, the US is simply blaming others.

    The world opinion has already shifted. The point is that the US is not only running out of allies, it is running out of resources to contain what is now a spreading fire. The next months will see more outbreaks of violence, and greater evidence the US is incapable of stopping things. Rather, the world will likely believe that it is the US that is the heart of the problem. It would not surprise me to see the following:

  • Armed aggression against the United States by more than one power; and

  • Armed invasions with the intent of targeting, detaining, and transporting to The Hague alleged war criminals

    This is a spiral of violence that is not needed.

    * * *

    Talking About the Disaster: The Real Catalyst Should Be Making It Clear The Consequences of Not Reaping the Rewards of Relying On Expertise In Other Branches of Government

    Checks and balances isn’t simply about pulling and pushing at power. It’s about defining a boundary as a signal that there is a potential problem, and we need to pay attention. The current problem is that the violation of that boundary hasn’t been viewed as a signal of a problem, but as a reward. The perverse thinking of Addington-Gonzelz-Yoo has been:

  • A. Unless we were facing resistance, we’re not doing our job;

  • B,. The more resistance we get, the better we’re doing; and

  • C. We’re doing a better job when we can eliminate the opposition.

    The reluctance is there not simply as a refusal to do what is right or wrong; but as resistance to do what is more likely to be reckless. This leadership has used deception to do what is reckless; then engaged in abuse to avoid the consequences of that misconduct. The worst thing a government official can face is no feedback or voices of support, when what they really need is a reminder of what needs attention: The core issues of the principles of the rule of law.

    The starting point should have been an assumption that Congress would face these issues. This government is so upside down and backwards, that it is debating whether the Constitution should or should not be enforced; or whether Congress should or should not do something. It’s a real problem, as it has been since 2000, when the focus of the public discourse hasn’t been on what can we do better, but what needs to be done to get Congress to agree or not agree to start to consider what must be done.

    The States have the power to remind the Congress of their concern. The States can also choose, at a later date if conditions continue to deteriorate, to freely choose to request assistance from abroad. The number one priority is the Constitution. The way forward is to devise a plan that Congress will assert that will do just that: Ensure the Constitution is first, at all times; and not something that is looked at, as has been of late because of the unfavorable weather, as something that is discretionary.

    There needs to be in place a system that is going to trigger action, especially when Congress and its failed system of self-governance refuses to do: Ensure an assent to that oath 5 USC 3331 to put the Constitution first.

    There are already clearly rules in Geneva which prohibits illegal war, yet this Congress chooses to fund illegal things. Our Constitution also prohibits spending money on illegal things A1S9, but the nation continues to spend money on things that are not lawful.

    It remains to be understood why the bad news has been buried; why the problems have not been addressed; and why the abuse of power has been freely embraced, and why the oath of office, despite it being binding, is looked at as something that is a mere puff of air between visits with K Street residents. The reason is simple: A desire to abuse power.

    The way forward is to explore: What must be done to force Government to do what must be done, even when it is perceived to be difficult, to do what must be done. Government officials and Members of Congress specifically took an oath to bind them, promising to do what they would not do had there been no oath. Yet, despite the oath: We have the same: No action. If you do not assert your oath, you may not command others give you things which you are not entitled: Consideration for having taken an oath.

    5 USC 3331 is a clear statute. It does not require “standing” for that statute to be investigated or prosecuted. It is irrelevant that someone may or may not have been harmed. The issue is simply whether there has or has not been a violation of the oath; and whether the State will or will not do its job: Ensure that the 5 USC 3331 obligations are enforced. Had Congress not intended 5 USC 3331 to be enforced, it would not require an oath; not would it have enacted the legislation to make that oath a requirement.

    The way forward is to create a system that will strip the Congress of the discretion to ignore the oath; and when they exercise discretion on a matter that they have no discretion, remove from their grasp the benefits they claim they are entitled for taking that oath: Power, money, liberty, discretion, and deference. This is how absolute immunity gets stripped; then qualified immunity diluted. By expecting to enjoy absolute immunity for their legislative activity, this Congress has failed to assert its 5 USC 3331 statutory obligations. In so many words, it has agreed to do nothing, in exchange for the false belief that they would never face consequences of their malfeasance.

    * * *

    It is time to remind the nation that the Unitary Theory of Government has had a tragic legacy. It is the job of the Executive, under the Unitary Theory of Government, to provide the solutions. He has failed. This Executive has created this mess. It is time to rub his nose in it, and put the responsibility on him to dig himself out of this mess. Let the President, who has created this mess under the Unitary Theory of the Executive, take the unitary responsibility for him failing to consult with experts, or freely permit his initial violations be reviewed by the courts.

  • The DNC is not in the White House

    The only job the DNC has at this point is to provide the oversight plan, and remind the public that you have continued to do all you can to protect the Constitution. What the President, Executive Branch, or RNC argue is irrelevant. Under their Unitary Theory of Government, combined with their signing statements, they have had absolute power to do anything they wanted. But they still failed. They have no excuse. We can’t give them more power or resources: They’ve already squandered the power and resources they’ve illegally used.

    The core issue isn’t whether they need more power to get things right, but whether they will be given more time to make things wrong.

    * * *

  • Go After the Illusory Strengths of the RNC

    Again, it’s important to realize (as you talk amongst yourselves) there is a problem with a failure of checks and balances; but when you make your argument with the RNC, do not try to prove to them that “the system of checks and balances was ignored.”

    Rather, remind the voters and RNC of the downfall of asserting the unitary theory of government: This President ignored the other two branches when he most needed them to temper his power, and ensure prudence prevailed. The net result isn’t simply that the Constitution has been ignored, but that the Executive has recklessly violated the law, embarked on imprudent conduct, and made the situation worse in the Middle East. This possibility was known before the first troops were adjusted from the ongoing Gulf War I monitoring operations.

    We had a mandate. This President has, and is, a disaster.

    * * *

    Solutions: Developing an Oversight Plan

    Sometimes it’s difficult to digest the full scope of conduct. Also we can get caught in the weeds. It’s useful to get a sense of general patterns of misconduct. One way to do this is to generalize the trends. Next we can look at the detailed evidence, and explore how the facts fit within an overall framework. This is part of developing an investigative plan.

    This is what the public needs to get a sense exists: That despite the apparent disorganization, there is a reasonable plan and approach in place led by able people who will put their oath before party loyalty and simply gather facts and understand what has gone wrong. This is not difficult. The way forward is to simply choose to organize this oversight plan into something that is understandable. Think of the preparation a trained litigator does as they present a case to the Grand Jury. If there is no competence to present a plan, there is no reason for anyone to believe you can executive a plan which, obviously does not exist. Do not be fooled into thinking it is the job of the legal community to explain why, despite this training, they choose to not simplify what should be simple. Rather, the way forward is to simply create the roadmap to present a plan so that the public will understand the way forward. It doesn’t matter who does it, nor does it matter why the experts aren’t doing what the public should reasonably expect them to do: Provide leadership.

    The focus should be on communicating in a structured organized way, the apparent problems, what needs to be reviewed, and the scope of possible solutions. This was done with Conyers’ “Constitution In Crisis” book.

    The public isn’t asking for the answers. They’re looking for leadership and (as best as you can do) an organized plan to assert the rule of law, do your job, and protect the Constitution. When we show that we can impose discipline, organize, and prudently gather facts, with time the voters will understand that the issue isn’t “the issue,” but whether we have in place people who will prudently approach issues, as opposed to embarking on predetermined outcomes regardless facts.

    You already have the pieces. You have the right thinking. All that’s needed is the inner knowing that you can put the team together to find the facts. Your job is to show the voters that you’re the right people to lead; your job isn’t to provide solutions. Your job is to show that you can check the President – whose job is to provide solutions. Whether Congress agrees or disagrees with that approach is another matter.

    Your job will be to lead the Congress, not the nation; your job is to protect the Constitution, not the RNC’s reputation. Your job isn’t to solve the RNC’s leadership problem, nor provide the RNC the bailout plan for the mess that they’ve made. Under the unitary theory of government, the President is in charge. Then it’s time for that unitary theory of government to be responsible for the results this President has unilaterally created.

    * * *

    You can either have this plan forced upon you. Or you can voluntarily choose to contribute to what you would like to see in this plan. It is far more productive if you wrestle with the issues, and, as a group, outline and discuss what you define to be a successful oversight plan for Congress. Our immediate goal is not to create the plan; but, as a preliminary step, to define what a successful oversight plan would look like.

    Your job is simple: To choose what you define to be success; and to make it clear what you expect the Congressional leadership to do. If you are not willing to be clear with what you want, then your Congress will give you unclear solutions to the problems in another branch of government.

    Whether we agree or disagree on a particular issue is not the focus for now. The point is to agree on the general framework of what you desire to see in an oversight plan; and then talk about what kind of Congress you would prefer; and define exactly what you want them to ask, do, and look into.

    Whether money does or does not go to a particular issue is not relevant at this point. Your only focus should be to imagine what you would prefer; and be clear with what you expect. Until then, your silence will be interpreted as assenting to what others may have already decided. You have the chance to make your voice heard. Your job is to be clear with what you want.

    Your views on this matter will be considered. But there is no guarantee that you are going to be happy with the decision. Rather, your job is a separate issue: To define what you expect; then freely work with what is ultimately decided as the plan to proceed.

    It’s time to get clear on what you want, what you expect, and what you prefer. You have the ability shape what we will work with. Remember, we can always adjust, so do not define the solution as something that must be perfect; rather, define your solution in terms that will have a starting point, and room to adjust as we know more. It is far more important to start, then adjust; than to define the perfect solution, but spend eternity seeking to discover what can be created.