On November 14, 2002, the New York Times s conservative columnist William Safire outlined the kind of data TIA sought: “Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book, and every event you attend—all these transactions and communications will go into what the Defense Department describes as a Virtual centralized grand database.’ “35 Add to that all government information—passport applications, drivers’ licenses, judicial and divorce records, IRS files, complaints by nosy neighbors, plus the latest hidden camera surveillance—and one has the perfect American computer version of Gestapo or KGB files.
There is growing evidence that in 2003 the TIA project was stopped in name only. The National Security Agency continued snooping and collecting data as before, while the analytical work was transferred to a new, totally secret agency inside the Pentagon known as the Counterintelligence Field Activity (CIFA). Its original specialty was illegally watching, photographing, and harassing peaceful public protests outside foreign and domestic military bases. According to Walter Pincus of the Washington Post, CIFA has “grown from an agency that coordinated policy and oversaw the counterintelligence activities of units within the military services and Pentagon agencies to an analytic and operational organization with nine directorates and ever-widening authority.” It has become known as “the superpower of data mining within the U.S. national security community.... Since March 2004, CIFA has awarded at least $33 million in contracts to corporate giants Lockheed Martin, Unisys Corporation, Computer Sciences Corporation, and Northrop Grumman to develop databases that comb through classified and unclassified government data, commercial information, and Internet chatter to help sniff out terrorists, saboteurs, and spies.”36
In 2005, CIFA reportedly “contracted with Computer Sciences Corp. to buy identity-masking software, which could allow it to create fake Web sites and monitor legitimate U.S. sites without leaving clues that it had been there.” A former senior Pentagon official familiar with CIFA told Pincus, “They started with force protection from terrorists, but when you go down that road, you soon are into everything .. . where terrorists get their money, who they see, who they deal with.” Because the National Security Agency is a major source of CIFAs data, that may have been one reason why Bush ordered the NSA to engage in surveillance of citizens completely outside the purview of the FISA court, which probably would not have approved open-ended data mining.37
One further way in which President Bush has shown his contempt for the Constitution is his use of what are called “signing statements.” During the first six years of his presidency, Bush did not exercise his constitutionally authorized veto over a single piece of legislation passed by Congress, but in his first term alone, he issued 505 extraconstitutional challenges to various provisions of legislation that had been enacted by Congress.38 Through “interpretive” statements issued at the time he signs them, the president disagrees with one or more provisions contained in the legislation and therefore reserves the right not to implement them. According to David Golove, a New York University law professor, “The signing statement is saying T will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.’ “39
Many of these statements amount to illegal line-item vetoes. They often have the effect of nullifying legislation that has been passed by both houses of Congress and signed by the president. In 1998, in Clinton v. New York, the Supreme Court held that a line-item veto is unconstitutional because it violates “the Constitution’s Presentment Clause. That Clause says that after a bill has passed both houses, but ‘before it becomes a law,’ it must be presented to the president, who ‘shall sign it’ if he approves, but ‘return it’—that is, veto the bill, in its entirety—if he does not.”40 Bush’s signing statements eliminate the possibility of the Congress overriding his veto since they take effect (whatever that might mean) after the bill has already become law, and they violate the first sentence of the Constitution’s first article: “All legislative powers herein granted” belong to Congress. As the framers carefully explained, this means only the “Senate and House of Representatives”—not the president in the act of signing a bill into law.41
One of the most striking examples of the legal quagmire created by these signing statements lies in the 2006 Defense Appropriation Bill. On the initiative of Republican senator John McCain, who was himself tortured while a prisoner of war in Vietnam, the Senate added an amendment to the defense-spending authorization and called it the Detainee Treatment Act of 2005. It reads, “No individual in the custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment,” and it provides for “uniform standards” of interrogation. President Bush threatened to exercise his first veto over the whole Pentagon budget because of this amendment. Then he and Vice President Cheney lobbied Congress intensively in order to retain the Pentagon’s and the CIA’s “right” to the secret use of torture (although never termed torture, of course) without fear of domestic prosecution. When the Senate responded by passing McCain’s torture ban by a veto-proof vote of 90-9, the White House turned to extralegal means to get what it wanted.42
On December 15, 2005, in a photo session at the White House, President Bush and Senator McCain shook hands and Bush announced that this landmark legislation would make it “clear to the world that this government does not torture.” However, on Friday evening, December 30, when he actually signed the bill at his Crawford, Texas, ranch, Bush added a signing statement that essentially gutted McCain’s amendment. It said that he would construe the new law “in a manner consistent with the constitutional authority of the president,” that he would order whatever he deemed necessary in his war on terror, and that, as president “in a time of war,” he was beyond any legal constraints. Elisa Massimino, the Washington director of Human Rights First, commented that “[t]he basic civics lesson that there are three coequal branches of government that provide checks and balances on each other is being fundamentally rejected by the executive branch.”43
It is not clear how this muddled situation will ultimately be resolved, but its immediate costs are high. A former army interrogator at Abu Ghraib prison writes, “Those who serve in the prisons of Iraq deserve to know clearly the difference between legal and illegal orders. Soldiers on the ground need a commander in chief who does not seek strained legalisms that ‘permit’ the use of torture.... No slope is more slippery, I learned in Iraq, than the one that leads to torture.”44 As of mid-2006, none of President Bush’s signing statements had been tested in court.
Moreover, it is not just the executive branch that has been tearing at the fabric of the Constitution. Through its partisanship, complacency, and corruption, Congress has done much to ensure that the crisis of the American republic will be fatal to democratic government. As constitutional specialist Noah Feldman writes, “For the last four years, a republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president’s assumption of new powers.”45 Al Gore, who served eight years in the House, eight years in the Senate, and presided over the Senate for eight years as vice president, observes, “The sharp decline of congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive branch to attain a massive expansion of power.... Moreover, in the Congress as a whole—both House and Senate—the enhanced role of money in the re-election process, coupled with the diminished role for reasoned deliberation and debate, has produced an atmosphere conducive to pervasive institutionalized corruption. ... It
is the pitiful state of our legislative branch that primarily explains the failure of our vaunted checks and balances to prevent the dangerous overreach of the executive branch, which now threatens a radical transformation of the American system.”46
I happen to be a registered voter in the Fiftieth Congressional District of California in northern San Diego county, where, in early 2006, our Republican representative for the previous fourteen years, Randy “Duke” Cunningham, received the longest sentence to a federal prison—eight years and four months—ever imposed on a member of Congress. Cunningham, a decorated Vietnam War pilot, confessed to pocketing $2.4 million, the largest bribe ever paid to a member of Congress. He had used his official positions on the Appropriations and Intelligence Committees to see that contracts worth millions of dollars went to defense manufacturers who had paid him off, and he did this primarily by adding classified earmarks to the Defense Appropriations bills and pressuring Pentagon officials to buy things they had made clear they did not want. The term “earmarks” is congressional jargon for spending by a lone representative, who surreptitiously tacks expenditures onto a larger appropriations bill that the House then passes without further scrutiny.
Well before the bribery charges were filed, I described Cunningham in the press as totally bought and paid for by the military-industrial complex.47 However, I did so on the basis of published campaign contributions. It did not occur to me that, in selling his vote to munitions makers, as so many other members of Congress have done—including Cunningham’s friend, neighbor in California’s Fifty-second District, and chairman of the House Armed Services Committee, Republican representative Duncan Hunter—he was so stupid as to have actually accepted material bribes for his corrupt acts. If a member of Congress can claim there was no quid pro quo involved in accepting money from strangers, it is technically legal. Most members who want to line their pockets are content to wait and do so as lobbyists after retiring or being defeated. According to the Center for Responsive Politics, Hunter and Cunningham rank second and third among all members of Congress (first is Pennsylvania Democratic representative John P. Murtha) in terms of the total amount of money they have received from the defense industry.48
In buying Cunningham’s influence, two San Diego-based defense contractors, Mitchell Wade, CEO of MZM Inc., which among other things provided Arabic translators for Abu Ghraib prison in Baghdad, and Brent Wilkes, CEO of ADCS Inc., supplied Cunningham with cash, a down payment and mortgage payments on a 7,628-square-foot mansion in an exclusive San Diego enclave, Persian rugs, antique French armoires, two yachts, a Rolls-Royce, and a college graduation party for his daughter.49 In return, Cunningham arranged for $163 million in Pentagon contracts for MZM, which had not done much business with the Defense Department until Wade met him, and more than $90 million for Wilkes’s company for converting old documents into computer-readable files. (Wilkes wanted to digitize the century-old archives dealing with the building of the Panama Canal, not exactly vital to the Global War on Terror and something Pentagon officials repeatedly insisted they did not need.) Senior correspondent for the American Prospect Laura Rozen notes, “Duncan Hunter [was] identified by a Defense Department Inspector General report—along with Cunningham—as actively intervening with the Pentagon to try to award a contract to a document-conversion company that had given him tens of thousands of dollars in campaign contributions for a program the Pentagon did not request or consider a priority.”50 Wilkes’s technology was imported from Germany.
It is important to stress that the distinction in Congress between a bribe and a legal donation is a bit of sophistry intended to conceal the routine corruption of our elected representatives. As Bill Moyers has put it, “If [in baseball] a player sliding into home plate reached into his pocket and handed the umpire $1000 before he made the call, what would we call that? A bribe. And if a lawyer handed a judge $1000 before he issued a ruling, what do we call that? A bribe. But when a lobbyist or CEO [chief executive officer of a corporation] sidles up to a member of Congress at a fund-raiser or in a skybox and hands him a check for $1000, what do we call that? A campaign contribution.”51
Brent Wilkes was more experienced at buying influence than Wade. He supplied private jet flights for House majority leader Tom DeLay and Republican Roy Blunt and became a “pioneer” in the Bush-Cheney 2004 reelection campaign by raising $100,000. From 1995 to 2005, Wilkes and his associates gave more than $840,000 to at least thirty-two congressional campaigns or their political action committees.52 According to the Federal Election Commission, the recipients included Representative John Doolittle (Republican from California), total $82,000; Representative Randy Cunningham, $76,500; Representative Jerry Lewis (Republican from California), $60,000; Representative Tom DeLay (Republican from Texas), $57,000; Representative Duncan Hunter, $39,200; Senator Larry Craig (Republican from Idaho), $29,000; Representative Jerry Weller (Republican from Illinois), $27,500; Representative Benjamin Gilman (Republican from New York), $25,843; Representative Roy Blunt (Republican from Missouri), $17,000; and Senator Lindsey Graham (Republican from South Carolina), $14,000.53
The culprits are not just Republicans. Consider the actions of the senators from Florida in 2006. In the 2006 federal budget, Republican senator Mel Martinez earmarked defense appropriations for Florida contractors worth $316 million. Since 2003, companies that received defense contracts made $33,000 worth of campaign contributions to Martinez. Democratic senator Bill Nelson, a member of the Armed Services Committee, obtained $916 million for defense projects, about two-thirds of which went to the Florida-based plants of Boeing, Honeywell, General Dynamics, Armor Holdings, and other munitions makers. Since 2003, Nelson has received $108,750 from thirteen companies for which he arranged contracts.54
Under such circumstances, it is still possible to imagine that some congressional votes in areas where money is flowing are not being influenced by campaign contributions, but only if the members are independently wealthy, and even then it is highly unlikely. There are, in addition, other ways to influence Congress, particularly through lobbying. The numbers of lobbyists, the amounts of money involved in lobbying, and the ties between the lobbying industry, the dominant Republicans in Congress, and the White House have all exploded in the Bush years. “Since Bush was elected,” according to Bill Moyers, “the number of lobbyists registered to do business in Washington has more than doubled. That’s 16,342 lobbyists in 2000 to 34,785 [in 2005]. Sixty-five lobbyists for every member of Congress.”55 In September 2005, Tom DeLay was forced to resign as majority leader of the House when he was indicted for channeling corporate contributions to politicians in Texas. He was the chief conduit of master lobbyist Jack Abramoff, who in January 2006 confessed to cheating his clients while spending lavishly on congressional junkets, meals, and campaign contributions. Some twenty-nine former staff members of DeLay’s congressional office have left government service to accept positions as lobbyists in major Washington law firms, the largest number working for any member of Congress.
Typical of the DeLay-Abramoff operations was their lobbying for the Commonwealth of the Northern Mariana Islands. After World War II, these specks of land in the Pacific 5,625 miles west of San Francisco—the largest of which is the island of Saipan—became a United Nations trust territory, administered by the United States Department of the Interior. Under a scheme to make Saipan a sweatshop, the Interior Department exempted the islands from U.S. labor and immigration laws. There is no minimum wage on Saipan. Tens of thousands of Chinese women live in dormitories with no basic political rights; they are prohibited from marrying and are paid almost nothing. They work producing clothes with “Made in the USA” labels for companies like Levi Strauss & Co., the Gap, Eddie Bauer, Reebok, Polo, Nordstrom, Lord & Taylor, and Liz Claiborne, which are then shipped duty-free to the United States. The sweatshop operators, the biggest of whom are naturalized U.S. citizens of Chinese ancestry, paid Abramoff nearly $10 million, part of which he used to book congressmen and their
“significant others” into luxury hotels and exclusive golf courses on Saipan, to ensure that Congress did not pass a minimum-wage law for the islands. Abramoff took DeLay and his wife there, and the congressman was moved to declare that the Marianas “represented what is best about America,” calling them “my Galapagos.”56 Other major clients of the Abramoff-DeLay lobbying duo include gambling casinos on Indian reservations, Russian oil and gas interests, and the U.S. Family Network.
The mainstream press regularly refers to members of Congress as “lawmakers,” but that phrase bears little relationship to what they actually do. An excellent example is the Foreign Operations bill for fiscal year 2005. At the time of passage, according to Los Angeles Times correspondent Ken Silverstein, it was “the biggest single piece of pork-barrel legislation in American history.”57 On November 17, 2004, a small group of senators and representatives from their respective appropriations committees folded into the bill funds for the Departments of Justice, State, Energy, Labor, Commerce, Education, Agriculture, Transportation, the Treasury, Interior, Veterans Affairs, Health and Human Services, and Housing and Urban Development, as well as the running expenses for the entire legislative and judicial branches. Around 12:15 a.m. on November 20, 2004, staff members, working frantically, made the 3,320-page bill available to “legislators” on the Web site of the House Rules Committee. The House put it to a vote at approximately 4:00 p.m. in the afternoon of the same day and the Senate followed suit at 8:42 p.m. that evening. The legislation passed the House by a margin of 344 to 51 and the Senate by 65 to 30. It would have been a physical impossibility for any member to have read the entire piece of legislation in the time available, much less thought about what it involved. The bill included 11,772 separate earmarks worth a combined total of nearly $16 billion. Silverstein observes, “Of who added these grants, no public record exists.”58
Nemesis: The Last Days of the American Republic Page 34