The following is part one of the speech given by Albert Gore on January 16, 2006 at the invitation of the American Constitution Society and the Liberty Coalition. In a rigorous manner, the former US Vice-president draws his fellow citizens’ attention on the establishment of an unprecedented absolute power, a sort of dictatorship without borders set up by the Bush administration. Gore denounces both the attempts against US constitutional principles and the lack of reaction in the face of such violations.
I’d like to start by saying that Congressman Bob Barr and I have disagreed many times over the years. But we have joined together today with thousands of our fellow citizens, Democrats and Republicans alike, to express our shared concern that America’s Constitution is in grave danger.
In spite of our differences over ideology and politics, we are in strong agreement that the American values we hold most dear have been placed at serious risk by the unprecedented claims of the administration to a truly breathtaking expansion of executive power.
As we begin this new year, the executive branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses. It is imperative that respect for the rule of law be restored in our country.
And that is why many of us have come here to Constitution Hall to sound an alarm and call upon our fellow citizens to put aside partisan differences insofar as it is possible to do so and join with us in demanding that our Constitution be defended and preserved.
It is appropriate that we make this appeal on the day our nation has set aside to honor the life and legacy of Dr. Martin Luther King Jr. who challenged America to breathe new life into our oldest values by extending its promise to all of our people.
And on this particular Martin Luther King Day it is especially important to recall for that for the last several years of his life Dr. King was illegally wiretapped, one of hundreds of thousands of Americans whose private communications were intercepted by the U.S. government during that period.
GORE: The FBI privately labeled King the — and I quote – “the most dangerous and effective negro leader in the country” and vowed to — again, I quote – “take him off his pedestal”.
The government even attempted to destroy his marriage and tried to blackmail him into committing suicide. This campaign continued until Dr. King’s murder.
The discovery that the FBI conducted this long-running and extensive campaign of secret electronic surveillance designed to infiltrate the inner workings of the Southern Christian Leadership Conference and to learn the most intimate details of Dr. King’s life was instrumental in helping to convince Congress to enact restrictions on wiretapping.
And one result was the Foreign Intelligence and Surveillance Act, often called FISA, which was enacted expressly to ensure that foreign intelligence surveillance would be presented to an impartial judge to verify that there was indeed a sufficient cause for the surveillance.
It included ample flexibility and an ability for the executive to move with as much speed as desired.
I voted for that law during my first term in Congress. And, for almost 30 years, the system has proven a valuable and workable means of affording a level of protection for American citizens while permitting foreign surveillance to continue whenever it is necessary.
Spying on US citizens
And yet, just one month ago, Americans awoke to the shocking news that, in spite of this long-settled law, the executive branch has been secretly spying on large numbers of Americans for the last four years and eavesdropping on — and I quote the report – “large volumes of telephone calls, e-mail messages and other Internet traffic inside the United States.”
GORE: The New York Times reported that the president decided to launch this massive eavesdropping program without search warrants or any new laws that would permit domestic intelligence collection.
During the period when this eavesdropping was still secret, the president seemed to go out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.
But, surprisingly, the president’s soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the president confirmed the story was true but in the next breath declared that he has no intention of stopping or bringing these wholesale invasions of privacy to an end.
At present, we still have much to learn about the NSA’s domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently.
Arbitrary state or rule of law?
A president who breaks the law is a threat to the very structure of our government.
Our founding fathers were adamant that they had established a government of laws and not men.
They recognized that the structure of government they had enshrined in our Constitution, our system of checks and balances, was designed with a central purpose of ensuring that it would govern through the rule of law.
GORE: As John Adams said, “The executive shall never exercise the legislative and judicial powers or either of them to the end that it may be a government of laws and not of men.”
An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the founders sought to nullify in the Constitution, an all-powerful executive; too reminiscent of the king from whom they had broken free.
In the words of James Madison, the accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elected, may justly be pronounced the very definition of tyranny.
Thomas Paine, whose pamphlet on “Common Sense” ignited the American Revolution, succinctly described America’s alternative. Here, he said, we intended to make certain that, in his phrase, “the law is king.”
Vigilant adherence to the rule of law actually strengthens our democracy, of course, and strengthens America. It ensures that those who govern us operate within our constitutional structure, which means that our democratic institutions play their indispensable role in shaping policy and determining the direction of our nation. It means that the people of this nation ultimately determine its course and not executive officials operating in secret without constraint under the rule of law.
And make no mistake: The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the normal processes of government that are designed to improve policy and avoid error.
And the knowledge that they will be reviewed prevents overreaching and checks the accretion to power.
A commitment to openness, truthfulness and accountability helps our country avoid many serious mistakes that we would otherwise make.
Recently, for example, we learned from just-declassified documents after almost 40 years that the Gulf of Tonkin resolution which authorized the tragic Vietnam War was actually based on false information.
And we now know that the decision by Congress to authorize the Iraq war 38 years later was also based on false information.
Now, the point is that America would have been better off knowing the truth and avoiding both of these colossal mistakes in our history. And that is the reason why following the rule of law makes us safer, not more vulnerable.
The president and I agree on one thing: The threat from terrorism is all too real.
There is simply no question that we continue to face new challenges in the wake of the attacks on September 11th and we must be ever vigilant in protecting our citizens from harm.
Where we disagree is on the proposition that we have to break the law or sacrifice our system of government in order to protect Americans from terrorism when, in fact, doing so would make us weaker and more vulnerable.
And remember that, once violated, the rule of law is itself in danger. Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.
As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its mistakes and reveal errors, it becomes increasingly difficult for the other branches to police its activities.
And once that ability is lost, democracy itself is threatened and we do become a government of men and not laws.
The president’s men have minced words about America’s laws.
The attorney general, for example, openly conceded that the kind of surveillance, in his phrase, that we know they have been conducting, does require a court order unless authorized by statue.
The Foreign Intelligence Surveillance Act self-evidently does not authorize what the NSA has been doing and no one inside or outside the administration claims that it does.
Incredibly, the administration claims instead that the surveillance was implicitly authorized when Congress voted to use force against those who attacked us on September 11.
But this argument simply does not hold any water. Without getting into the legal intricacies, it faces a number of embarrassing facts.
First, another admission by the attorney general: He concedes that the administration knew that the NSA project was prohibited by existing law and that that is why they consulted with some members of Congress about the possibility of changing the statute.
Attorney General Gonzales says that they were told by the members of Congress consulted that this would probably not be possible. And so they decided not to make the request.
So how can they now argue that the authorization for the use of military force somehow implicitly authorized it all along?
Indeed, when the authorization was being debated, the administration did in fact seek to have language inserted in it that would have authorized them to use military force domestically and the Congress refused to agree.
Senator Ted Stevens and Representative Jim McGovern, among others, made clear statements during the debate on the floor of the House and Senate, respectively, clearly stating that that authorization did not operate domestically — and there is no assertion to the contrary.
When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if congressional authorization was a useless bother.
But as Justice Frankfurter once wrote, “To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.”
This is precisely the disrespect for the law that the Supreme Court struck down in the steel seizure case during the Korean War. It is this same disrespect for America’s Constitution which has now brought our republic to the brink of a dangerous breach in the fabric of the Constitution.
Arbitrary Detention and Torture
And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.
For example, as you know, the president has also declared that he has a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person.
The president claims that he can imprison that American citizen — any American citizen he chooses — indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.
No such right exists in the America that you and I know and love. It is foreign to our Constitution.
It must be rejected.
At the same time, the executive branch has also claimed a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture and have plainly constituted torture — in a widespread pattern that has been extensively documented in U.S. facilities located in several countries around the world.
Over 100 of these captives have reportedly died while being tortured by executive branch interrogators. Many more have been broken and humiliated. And, in the notorious Abu Ghraib prison, investigators who documented the pattern of torture estimated that more than 90 percent of the victims were completely innocent of any criminal charges whatsoever.
This is a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War.
They have been observed by every president since then until now.
They violate the Geneva Conventions, the International Convention Against Torture and our own laws against torture.
The president has also claimed that he has the authority to kidnap individuals on the streets of foreign cities and deliver them for imprisonment and interrogation on our behalf by autocratic regimes and nations that are infamous for the cruelty of their techniques for torture.
Some of our traditional allies have been deeply shocked by these new and uncharacteristic patterns on the part of America.
For example, the British ambassador to Uzbekistan — one of those nations with the worst reputations for torture in its prisons — registered a complaint to his home office about the cruelty and senselessness of the new U.S. practice that he witnessed. “This material we’re getting is useless”, he wrote. And then he continued with this: “We are selling our souls for dross. It is, in fact, positively harmful.”
Can it be true that any president really has such powers under our Constitution?
If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?
The dean of Yale Law School, Harold Koh, said after analyzing the executive branch’s extravagant claims of these previously unrecognized powers, and I quote Dean Koh, “If the president has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.”
Freezing of counterpowers
The fact that our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power is itself deeply troubling. This failure is due in part to the fact that the executive branch has followed a determined strategy of obfuscating, delaying, withholding information, appearing to yield but then refusing to do so, and dissembling in order to frustrate the efforts of the legislative and judicial branches to restore a healthy constitutional balance.
GORE: For example, after appearing to support legislation sponsored by Senator John McCain to stop the continuation of torture, the president declared in the act of signing the bill that he reserved the right not to comply with it.
Similarly, the executive branch claimed this it could unilaterally imprison American citizens without giving them access to review by any tribunal. And when the Supreme Court disagreed, the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.
A conservative jurist on the 4th Circuit Court of Appeals wrote that the executive branch’s handling of one such case seemed to involve the sudden abandonment of principle and, I quote him, "at substantial cost to the government’s credibility before the courts."
As a result of this unprecedented claim of new unilateral power, the executive branch has now put our constitutional design at grave risk. The stakes for America’s democracy are far higher than has been generally recognized.
These claims must be rejected and a healthy balance of power must restored to our republic. Otherwise, the fundamental nature of our democracy may well undergo a radical transformation.
For more than two centuries, America’s freedoms have been preserved in large part by our founders’ wise decision to separate the aggregate power of our government into three co-equal branches, each of which, as you know, serves to check and balance the power of the other two.
On more than a few occasions in our history, the dynamic interaction among all three branches has resulted in collisions and temporary impasses that create what are invariably labeled constitutional crises.
These crises have often been dangerous and uncertain times for our republic. But in each such case so far, we have found a resolution of the crisis by renewing our common agreement to live together under the rule of law.
The principal alternative to democracy throughout history has, of course, been the consolidation of virtually all state power in the hands of a single strong man or small group who exercised that power without the informed consent of the governed.
It was in revolt against just such a regime, after all, that America was founded.
When Lincoln declared at the time of our greatest crisis that the ultimate question being decided in the Civil War was, in his memorable phrase, “whether that nation or any nation so conceived and so dedicated can long endure,” he was not only saving our union. He was recognizing the fact that democracies are rare in history. And when they fall, as did Athens and the Roman republic upon whose designs our founders drew heavily, what emerges in their place is another strong- man regime.
There have, of course, been other periods in American history when the executive branch claimed new powers later seen as excessive and mistaken.
Our second president, John Adams, passed the infamous Alien and Sedition Acts and sought to silence and imprison critics and political opponents.
And when his successor, President Thomas Jefferson, eliminated the abuses, in his first inaugural, he said, “The essential principles of our government form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. Should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and regain that road which alone leads to peace, liberty and safety.”
President Lincoln, of course, suspended habeas corpus during the Civil War, and some of the worst abuses prior to those of the current administration were committed by President Wilson during and after World War I, with the notorious red scare and “Palmer Raids.”
The internment of Japanese-Americans during World War II marked a shameful low point for the respect of individual rights at the hands of the executive. And, of course, during the Vietnam War, the notorious COINTEL program was part and parcel of those abuses experienced by Dr. King and so many thousands of others.
But in each of these cases throughout American history, when the conflict and turmoil subsided, our nation recovered its equilibrium and absorbed the lessons learned in a recurring cycle of excess and regret.
But there are reasons for concern this time around that conditions may be changing so that this cycle may not repeat itself. For one thing, we have for decades been witnessing the slow and steady accumulation of presidential power. In a globe where there are nuclear weapons and Cold War tensions, Congress and the American people accepted ever-enlarging spheres of presidential initiative to conduct intelligence and counterintelligence activities and allocate our military forces on the global stage.
End of part one When military force has been used as an instrument of foreign policy or in response to humanitarian demands, it has almost always been as the result of presidential initiative and leadership.
But as Justice Frankfurter wrote in that famous steel seizure case, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
A second reason to believe that we may be experiencing something new, outside that historical cycle, is that we are, after all, told by this administration that the war footing upon which he has tried to place the country is going to last, in their phrase, “for the rest of our lives.”
And so we are told that the conditions of national threat that have been used by other presidents to justify arrogations of power will in this case persist in near perpetuity.
Third, we need to be keenly aware of the startling advances in the sophistication of eavesdropping and surveillance technologies with their capacity to easily sweep up and analyze enormous quantities of information and then mine it for intelligence. And this adds significant vulnerability to the privacy and freedom of enormous numbers of innocent people at the same time as the potential power of those technologies grows.
Those technologies do have the potential for shifting the balance of power between the apparatus of the state and the freedom of the individual in ways that are both subtle and profound.
Don’t misunderstand me. The threat of additional terror strikes is real and the concerted efforts by terrorists to acquire weapons of mass destruction does indeed create a real imperative to exercise the powers of the executive branch with swiftness and agility.
Moreover, there is an in fact an inherent power conferred by the Constitution to any president to take unilateral action when necessary to protect the nation from a sudden and immediate threat. And it is simply not possible to precisely define in legalistic terms exactly when that power is appropriate and when it is not.
But the existence of that inherent power cannot be used to justify a gross and excessive power grab lasting for many years and producing a serious imbalance in the relationship between the executive and the other two branches of government.
And there is a final reason to worry that we may be experiencing something more than just another cycle. This administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential power is exactly what our Constitution intended.
This legal theory, which its proponents call the theory of the unitary executive but which ought to be more accurately described as the unilateral executive, threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.
Under this theory, the president’s authority when acting as commander in chief or when making foreign policy cannot be reviewed by the judiciary, cannot be checked by Congress. And President Bush has pushed the implications of this idea to its maximum by continually stressing his role as commander in chief, invoking it as frequently as he can, conflating it with his other roles, both domestic and foreign.
And when added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.
This effort to rework America’s carefully balanced constitutional design into a lopsided structure dominated by an all-powerful executive branch, with a subservient Congress and subservient judiciary, is ironically accompanied by an effort by the same administration to rework America’s foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish a form of dominance in the world.
The common denominator seems to be based on an instinct to intimidate and control.
The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals and to demand conformity from all executive branch employees.
For example, CIA analysts who strongly disagreed with the White House assertion that Osama bin Laden was linked to Saddam Hussein found themselves under pressure at work and became fearful of losing promotions and salary increases.
Ironically, that is exactly what happened to the FBI officials in the 1960s who disagreed with J. Edgar Hoover’s assertion that Martin Luther King was closely connected to communists.
The head of the FBI’s domestic intelligence division testified that his effort to tell the truth about Dr. King’s innocence of the charge resulted in he and his colleagues becoming isolated within the FBI and pressured.
And I quote: “It was evident,” he said, “that we had to change our ways or we would all be out on the street.” “The men and I,” he continued, “discussed how to get out of trouble.”
To be in trouble with Mr. Hoover was a serious matter. “These men,” he continued, “were trying to buy homes, mortgages on homes. They had children in school. They lived in fear of getting transferred, losing money on their homes, as they usually did. So they wanted another memorandum written to get us out of the trouble that we were in.”
The Constitution’s framers, who studied human nature so closely, understood this dilemma quite well. As Alexander Hamilton put it, “A power over a man’s support is a power over his will.”
In any case, quite soon there was no more difference of opinion about Dr. King within the FBI, and the false accusation became the unanimous view.
And in exactly the same way, George Tenet’s CIA eventually joined in endorsing a manifestly false view that there was a linkage between Al Qaida and the government of Iraq.
In the words of George Orwell, “We are all capable,” he said, “of believing things which we know to be untrue and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right.”
Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield.
Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality. And indeed, whenever power is unchecked and unaccountable, it almost inevitably leads to gross mistakes and abuses.
That is part of human nature. In the absence of rigorous accountability, incompetence flourishes, dishonesty is encouraged and rewarded.
It is human nature, whether for Republicans or Democrats or people of any set of views.
Last week, for example, Vice President Cheney attempted to defend the administration’s eavesdropping on American citizens by saying that, if it had conducted this program prior to 9/11, they would have found out the names of some of the hijackers.
Tragically, he apparently still does not know that the administration did, in fact, have the names of at least two of the hijackers well before 9/11 and had available to them information that could have led to the identification of most of the others.
One of them was in the phone book. And yet, because of incompetence, unaccountable incompetence in the handling of the information, it was never used to protect the American people.
It is often the case, again, regardless of which party might be in power, that an executive branch beguiled by the pursuit of unchecked power responds to its own mistakes by reflexively proposing that it be given still more power.
Often the request itself is used to mask accountability for mistakes in the use of power it already has.
Moreover, if the pattern of practice begun by this administration is not challenged, it may well become a permanent part of the American system. That is why many conservatives have pointed out that granting unchecked power to this president means that the next will have unchecked power as well. And the next may be someone whose values and beliefs you do not trust. And that is why Republicans as well as Democrats should be concerned with what this president has done.
If his attempt to dramatically expand executive power goes unquestioned, then our constitutional design of checks and balances will be lost. And the next president or some future president will be able in the name of national security to restrict our liberties in a way the framers would never have imagined possible.
Courtesy CQ Transcripts Wire