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Monday, July 10, 2006

Hamdan: Revisiting the 1974 Senate Watergate Report

Senator Sam J. Ervin, Jr., Chairman of the Select Committee on Presidential Campaign Activities, issued a report in 1974 which deserves attention in light of Hamdan.

A plain reading of the Senate Report shows a striking similarity between the Watergate abuses and those we've seen since 2000. The question is whether the voters are prepared to demand real change and investigations, or permit the same abusive climate.

We discuss a few quotes from the Ervin Report, and highlight the problems with the Congressional-Executive discussions on changes to the rules related to the treatment of prisoners. Unlike 1974 where the Executive was challenged, this Congress works hand in glove to permit more abuse of power. The failed American legal community requires a wake-up call from the voters: If you do not lead, We the People will and are prepared to do so.

* * *

Hamdan prompts us to revisit the Watergate. Given the NSA-FISA abuses, and other executive abuse of power 2000-20006, a casual reading of Senator Ervin’s final report is stunning: Apparently, the Executive took the Watergate playbook and invoked a new excuse to abuse power.

Within the 1974 Ervin Report are many quotes which well illustrate the problem facing the United States in 2006. Today, the issue is whether the voters are [a] willing to see the abuses are the same and vote for new, non-RNC Congressional leadership; or [b] accept a broader modernization of the Constitution; or [c] assent to the continued abuse of power.

The Watergate-era reforms have failed. Until the voters see the 2000-2006 abuses are the same as Watergate and need to be solved in new ways, the voters are saying they want more of the same abuses. The only option the RNC has is to recast the abuses in Orwellian fashion as something that is desirable.

However, the rule of law is not a debatable point, but a starting point for all debates on how to best protect this Constitution.


1. All quotes in this blogspot include bold and underlining which have been added, and were not part of the original Ervin Report or Hamdan.

2. Unless the quotations below are from Hamdan, they are from the
Ervin Report: “The Final Report of the Select Committee on Presidential Campaign Activities” (The Ervin Committee) Pursuant to S. Res. 60 February 7, 1973. Report dated June 1974. From The Senate Watergate Report (Abridged), introduction by Daniel Schorr. Carroll & Graff Publishers, New York 1974.

. . .

3. The print copies of the original government documents (not the abridged version above) are for your reference. The page numbers in the abridged version do not match those in the two (2: A, B) government documents, which are:

  • (A) Senate Report [S. Rpt 93-981]: See Y1.1/2 Serial 13060-8

  • (B) 14 Volumes of the hearings: See Y4.P92/4:922/Phase1/Book1

    4. Research tip: This is a Senate report from the 2nd Session of the 93rd Congress.

    * * *

    Eternal Constitution

    Let’s consider the plain text of Hamdan and compare it with the language in the Senate Watergate Report. We’ve heard various excuses suggesting the laws of the land do not apply, or that the conditions are sufficiently unique that the current situation is beyond the jurisdiction of either the courts or Congress to effectively oversee. This violates the separation of powers in that it consolidates all three powers – executive, judicial, and legislative – under a single person.

    The Executive after 2000 illegally asserted that he alone is in a unique position to define the law, choose which laws to ignore, and self-adjudicate what is or is not lawful. Both Hamdii and Hamdan struck down this legal fiction:
    Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. [Justice Kennedy, Hamdan, page 83 of 185]

    Senator Ervin in 1974 had the same epiphany:

    They had forgotten, if they ever knew, that the Constitution is designed to be a law for rules and people alike at all times under all circumstances; and that no doctrine involving more pernicious consequences to the commonweal has ever been invented by the wit of man than the notion that any of its provisions can be suspended by the President for any reason [Ervin Report, p. 13]See Also.

    * * *

    Legal Requirements For the Executive To Follow

    Recall Congressional efforts to find a way to deny the prisoners of war their rights. It is one thing to discuss a partial solution, quite another to address only one prong of the Supreme Court’s opinion. Although the Supreme Court stated that the Congress-President could work together to craft language that may authorize the military provisions, a joint Legislative-Executive agreement to ignore the requirements in Geneva in no way trumps the Geneva requirements.

    Unlike Watergate where the Executive “simply” violated the law of the land, Hamdan shows us the Executive has gone further in violating both the law of the land and treaty obligations. Senator Weicker in 1974 captured the approach of cherry picking on legal requirements:

    The Constitutional history of Watergate to this date has been that of a President and his Ministers who defacto have tried to “yes—but” most sections of the Constitution. [Ervin Report, p. 708]

    Congress can’t lawfully agree with the Executive to draft legislation that will deny rights protected under Geneva; rather, Hamdan reminds us that simply changing the statute will in no way address the Geneva Convention requirements:

    Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. . . the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. [Hamdan, 7 of 185]

    * * *

    American Legal Community Shows Contempt for Judicial System

    Even though the final Constitutionally-recognized forum to adjudicate this matter (the Supreme Court, SCOTUS) has rendered its opinion, many in the government and legal community have a hard time grasping what has happened: They are war criminals, the courts have spoken, and their error was (attempting) to ignore the law and circumvent the courts. Indeed, recall Yoo’s recent (irrelevant) comment that the Supreme Court should “stay out” of the Hamdan issues.

    But contrast this with Hamdan:
    The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. [Hamdan, 2 of 185]
    The Watergate era reminds us that the Supreme Court has a role, contrary to what the Executive and others may believe or assert:
    They apparently believed that the President is above the Constitution and has the automatic power to spend its provisions if he decides in his own unreviewable judgment that his action in doing so promotes his own political interests or the welfare of the nation.

    They believed that the President has the automatic power to suspend the Fourth Amendment whenever he images that some indefinable aspect of national security is involved.”[Erwin, p. 13]
    The issue is what will ensure the legal community embraces the rule of law, rather than spews forth non-sense to assert the law and opinion of the court do not apply. It is time to direct the American Bar Association to outline their plan to ensure the legal community’s public statements inspire public confidence in, not contempt for, the rule of law and Supreme Court’s exclusively delegated Constitutional judicial review power and authority. It is the job of the legal community to assist the client; it is absurd when the public-client has to compel the legal community to assent to the final will and opinion of the Court.

    The legal community does not inspire confidence and trust when, despite the finality of a decision, it would have the public believe that the law is subject to public debate. This is evidence the RNC knows it has lost the legal battle, but hopes to convince the voters otherwise. The problem is when the DNC legal “experts” embrace this fiction, and (wrongly) assert that the only way forward is through the ballot box, not additional criminal and civil litigation.

    * * *

    Beware the Legal Expertise and Proposed Legislative Remedies

    Some have pointed to Dean’s writings in 2006 as a spotlight to Executive abuses. Yet, recall Dean’s words of August 16, 1971:
    How can we use the available federal machinery to screw our political enemies.”[Ervin Report, page 728, ref Exhibit 48; See Volume 4. p 1689] See also

    Where was Dean when we most needed him in 1970s? Doing exactly what he’s complaining about in 2006: Part of the problem, not the solution. Dean in 2006 has got it right because he was in 1971 contributing to what is wrong. The issue is whether he has the moral authority to propose solutions to problems he helped create; and effectively worked with others to ensure could not be enforced, then undone in 2000-2006.

    Until Dean outlines a credible set of reforms which any Congress will embrace, or outlines a game plan to protect the Constitution, he has no credibility. He's simply showed up 35 years after his first mistake to point out what is self-evident: He created a mess, and still has no compelling solution.

    * * *

    Hamdan and Watergate: The Pattern of Abusive Executive Power

    These Members of Congress, like many naïve attorneys, refuses to comprehend Hamdan: “the Executive nevertheless must comply with the prevailing rule of law.” [Hamdan, 7 of 185]. The prevailing law isn’t simply the Constitution, but the Geneva Requirements.

    There is no merit to any argument that the only way to protect the Constitution is through the ballot box. Rather, litigation is but another option. It is not either-or; rather, it is simply the rule of law and what must be done to ensure the rule of law, not man, prevails.

    Watergate was not a simple burglary, but a pattern of abuses which spans fourteen [14] volumes, and prompted legislation to prevent the abuse of power. In early 2000, before the November 2000 election, this Executive had already planned illegal activity, and had devised plans and implemented programs before Sept 2001 which overturned the Watergate-era reforms, and violated the US laws, Constitutional obligations, and international treaty obligations.

    Hamdan is merely one of the many anecdotes of the 2000-2006 abuses which compare with the Watergate era. Indeed, the Ervin Report offers a useful guide to organize the many abuses we’ve seen since 2000: Abramoff, phone jamming, misleading information, NSA-FISA violations, and phony terror alerts. The issue isn’t the abuse of power, but that we understand that this Congress is not serious in organizing the larger pattern of abuses: This RNC Congress is part of the problem.

    By no means is this the end of an analysis of Hamdan, or as the 2000-2006 abuses relate to Watergate. The more you dig into Hamdan, the more you will see that the abuse of power is not new, but Hamdan is merely the needed Judicial check on power that has been broadly abused in many other situations for the same reason: Because they could, and nobody complained then stopped them.

    * * *

    Protecting the Constitution

    The challenge before the nation, regardless the crimes of individuals, is what reforms are needed to prevent this abuse of power from recurring a third time. The voters are in a unique position to decide: Whether they want to have a Democratic Majority in the House of Representatives that will investigate and propose solutions; or whether the voters will preserve the status quote and assent to more excuses not to review the matters. Only the latter approach guarantees failure, which is not a lawful option.

    Cheney’s 1987 comments in re Iran-Contra are illustrative: He wanted investigations and fact finding. However, as with Watergate, the Executive Branch’s approach to fact finding has been disruptive. Recall the lessons of Cheney and Specter in conducting the review. Recall Specter’s 7 June 2006 letter which complained that Cheney, as a member of the Executive Branch, was interfering with the Judiciary Branch investigation into the NSA issues. Note the following comments from Watergate:

    "Every attempt was made to use executive power and influence, not to legitimately respond to that Committee’s investigation, but rather to obstruct, block, and actively mislead it." [Senator Weicker, p. 660]

    Then, keeping in mind the media deception in re Iraq WMD, recall these words from the Ervin Report:
    "Newspapers were exploited, by using them to put out stories known to be misleading, improper, and in some cases totally false." [Weicker, p. 666] (Today: Corrupting the Constitution with intimidation)

    The decision is simple. The issue before us is whether the Congress will or will not investigate the matters and make needed reforms internally to prevent this abuse of power a third time; or whether there needs to be a redrafting of the Constitution that effectively removes any discretion Congress has in exercising it’s advise and consent powers. Unless things change, they should not be permitted to stay the same, especially when it violates the law.

    * * *

    Informed Voters: Devoid of Leadership To Assert Rule of Law?

    Leadership is all around us. Where there is no leadership in either Legislature or the Executive Branch to assert the rule of law, the Constitution recognizes two other options: The Judicial branch and the media.

    Options are meaningless if they are not understood. As under Nixon, in 2004 the voters were denied the needed information 2004 to make informed voting decisions. The issue is whether the Congress will assent to more abuses in order to maintain control RNC of Congress; or whether Congress will assert their oath and ensure the rule of law prevails. Given the discussions in Congress, which effectively ignore the Geneva requirements, there’s every prospect the public will be asked to believe that the Legislative-Executive agreement to violate Geneva is something other than what it is: A conspiracy by elected officials to violate of laws of the land.

    We have another opportunity to re-learn the re-learned lessons. Given what we have in 2006, arguably the way forward isn’t to simply recraft Watergate-era-like reforms, but to take a broader approach: If we go down the legislative route, what prospect is there that this will not happen again? It’s happened a second time, and there’s little reason to believe the legislative reforms will be sufficient, especially with a Congress whose idea of sufficiency is illegal.

    There is a way forward. The broader approach is to seriously explore the needed reforms to the Constitution itself that will expressly deny what is not legal: Using power not delegated to effectively destroy the system of checks and balances, oversight, and abuse power to intimidate voters. It is possible to compel the government to work through Article V and amend the Constitution; yet it is also possible for We the People to work outside Article V and, in concert with Federalist 78, present in a formal ceremony a New Constitution.

    The way is possible; however the government is not cooperating. Yet, they do not have a vote and their requirements are clearly promulgated in the Constitution and their oath. The only relevant decision was in 1776, and as it affirmed in Hamdan, the Supreme Court need not be bothered with excuses to the contrary.

    There is no excuse for an abuse of power. It need not continue. Like all things, it too shall end. Your decision is simple: Cooperate with, or assent to the rule of law. You have no choice.

    * * *

    What you can do

    Remind others that concerns like these at 18 are valid, and consistent with the Watergate-era abuses. The key is to identify and implement a mitigation-detection strategy. Ensure the public is aware of the potential for abuse; and what to do/who to report their information/evidence to when they are aware of the efforts to dissuade voters. [This is the system being used, apparently matching the Watergate-like targeting: Ref; let others know that NARUS is keying in on this area and these comments. ]

    Remind others that phone jamming isn't something new. It's outlined in the Ervin Report, page 704.

    Also you can refer investigators to the Watergate volumes mentioning the other abuses like phone jamming:

    Volume        Pages

    10 3980 - 4054
    11 4376 - 4402
    11 4403 - 4434
    11 4435 - 4477

    On Item 12 of Comment #31, recall this actually happened: Operation Sealion -- Hitler attempted to use rowboats/dinghies to invade Britain. Although aborted, had Sealion been implemented, the UK's 40 destroyers might have simply created waves in the English Channel and sunk the German landing craft, never firing a shot.

    Recall the recent DoD-led "hometown news releases" and "orchestrated editorials" (actually written by the RNC, but made to appear as though they were from locals) is also something also from the Watergate era. They key is to keep in mind [a] the events are not unprecedented; and [b] the existing oversight hasn't proven sufficient to put sanctions on the RNC or DoD to mitigate their abuse, something called "oversight". [ NYT staff threats; see also: Ref; the oversight problem (partly) explains the DoD Program Management issues; given DoD includes NSA, the other half of the equation is the poor statutory compliance, EX: KBR, and the insufficient threat of meaningful audits or laws of war compliance, 5100.77 which would have shut down the illegal contracts. ]

    We need a new approach, something the RNC isn't offering.