The 2006 Mid-Term Election

By Prof. Howard Ball, Professor of Law and Politics at the University of Vermont

“Belated as it is, Rumsfeld’s departure does have encouraging aspects. Above all, it suggests that the most imperial presidency of modern times can still be held accountable by the voters.”

Boston Globe, November 9, 2006

“Civil liberties reinforce the separation of powers by limiting the discretion of the executive branch. The separation of powers is an essential mechanism for correcting the errors to which each branch of government would be prone in the absence of a competitive environment.”

Richard A. Posner, 2006

On Tuesday, November 7, 2006, election day in America, the sovereign people spoke and President George W. Bush and his party were, to use the president’s phrase, “thumped” at the polls. The Congress, both the Senate and the House of Representatives, were taken by the Democrats. The essential message of the voters: change the direction of the Iraqi war now. It was an historic vote: “For the first time in American history, Americans have gone to the polls in wartime and rejected that war.”

In a comprehensive series of exit polls, reported in the Washington Post, 59% of all voters expressed “dissatisfaction or anger” with the Bush administration. Of that figure, 56% of the voters said they “support withdrawing some or all U.S. troops from Iraq.” (Another statistic from these exit interviews indicated that 41% “rated corruption ‘extremely important’ to their decision.”)

In a survey conducted by Greenberg Quinlin Rosner Research on November 7-8, 2006, involving over 1,100 voters in 132 swing-GOP districts, interviewers recorded the following exit responses:

• Q8, 59%- U.S. is moving in the wrong direction,
• Q9, the most important issue areas:
  • Iraq war, 41%
  • Economy, 26
  • Moral values, 23
  • Corruption, 23
  • Terrorism, 22
• Q11, President Bush’s handling of job,
  • Strongly approve, 23%
  • Strongly disapprove, 46%
• Q38, Was the issue of which party controls Congress a factor in your vote?
  • Yes, 67%
  • No, 32%

It is abundantly clear that the American voters, even though they had a very low opinion of congressional behavior since 2001, wanted change and rejected the Iraq war policy preferences of the president and the Cheney/Rumsfeld faction.

I. The Election’s Immediate Aftermath

Within the day, President Bush made the decision to replace his controversial Secretary of Defense, Donald Rumsfeld. The announcement came at a White House press conference on Wednesday, November 8, 2006. Rumsfeld’s “strategic errors of epic proportions” as well as his acerbic personality made him a lightening rod in the Bush administration. While the announcement, however belated, pleased Democrats and other critics of Bush’s overall policy on Iraq, terrorism, and enemy combatants, it infuriated Republicans, especially congressional Republicans who lost their seats in the election.

‘The president correctly decided that this decision does not belong in the political realm. And a decision as important as your secretary of defense should not be made based on some partisan political advantage. It would send a terrible signal to our troops, to our allies, even to our enemies,’ Bush Chief of Staff Josh Bolten said.

[However,] former House Speaker Newt Gingrich has suggested that if Bush replaced Rumsfeld two weeks before the election, voters would not have been as angry about the unpopular Iraq war. Republicans would have gained the boost they needed, according to Gingrich, to retain their majority in the Senate and hold onto 10 to 15 more House seats.

Senator Arlen Specter, R-Pa., the outgoing chairman of the Senate Judiciary Committee, agreed with that assessment. Bush should have removed Rumsfeld ‘as soon as he had made up his mind. And that's a hard thing to calculate. But it's highly doubtful that he made up his mind between the time the election returns came in on Tuesday and Wednesday when Rumsfeld was out. And if Rumsfeld had been out, you bet it would have made a difference,’ Specter said. ‘I'd still be chairman of the Judiciary Committee.’

At the November 8th press conference, Bush announced Rumsfeld’s replacement: Robert M. Gates. The defense secretary-designate is presently the President of Texas A&M University, and formerly the Director of the CIA (1991-1993). By all accounts, Gates is a very different, more pragmatic personality than his predecessor.

For example, in the past, Gates has said that the United States should enter discussions with Iraq’s neighbors, Iran and Syria. He has also condemned the NSC and the CIA and the DIA for misleading the president on whether Iraq had weapons of mass destruction. He has also been critical of the president’s new, 2003, national security policy for the nation. On that issue, Gates has consistently maintained that America must never launch another preemptive strike without “unambiguous” intelligence.

Gates was, until the November 8th announcement, also a member of the 10-person bipartisan Iraq Study Group (ISG), co-chaired by former secretary of state James A. Baker III and former Democratic Congressman Lee Hamilton. Other members of the Iraq Study Group are: Lawrence Eagleburger (who just replaced Gates), Vernon Jordan, Edwin Meese, Sandra Day O’Connor, Leon Panetta, William Perry, Charles Robb and Alan Simpson.

There are great expectations about the group’s final Report, containing its recommendations regarding America’s future role in Iraq. The election outcome heightened the potential impact of this ten-person advisory group. All Americans, including President Bush, seemed anxious to hear the recommendations of the ISG. As one columnist wrote: “I confess, I’m really eager to hear what Jim Baker thinks should be done in Iraq. . . . The palpable yearning [the ISG] has stirred is one more measure of the country’s desperation over Iraq. . . . [The] next question is, will the White House accept it?” As it turned out, the President rejected the recommendations of the Committee and order, much to the dismay and chagrin of the Congress and the American public, a “surge” of American troops, almost 25,000 personnel, into Iraq in January 2007.

In addition, a week after the election, DOJ lawyers filed a six page document in the U.S. Court of Appeals, 4th Circuit, in Richmond, Virginia, in which the Bush administration argued that the MCA of 2006 applied to foreigners captured and held in the United States as well as enemy combatants captured abroad and held at GTMO. (Conceivably, if the government brief was validated by federal judges, all aliens residing in the United States would be in jeopardy of detention under the MCA of 2006.)

The brief was filed in federal court because Ali Saleh Kahlah al-Marri, a citizen of Qatar, was arrested in 2001 while attending university in America and held in a military brig in South Carolina since then as an enemy combatant. The Bush administration has maintained since his detention that Marri “is a sleeper agent for Al Qaeda.” Marri’s lawyers maintain that because he was arrested and detained in America, he has the same rights as anyone else in detention in the United States.

On the same day, November 13, 2006, other DOJ attorneys filed briefs in the U.S. Court of Appeals for the District of Columbia that defended the MCA of 2006 as constitutional. Their argument was made because hundreds of habeas appeals had been filed since Hamdan was announced in late June 2006. According to the government filings, which asked the federal court to dismiss all the pending cases, the GTMO detainees has no constitutional rights. Giving these enemy combatants access to the federal courts was banned by the MCA; granting them access “would severely impair the military’s authority to defend this country.”

And, about the same time, in the U.S. Court of Appeals, D.C. Circuit, lawyers for hundreds of GTMO detainees asked the federal appeals court to strike down the provision in the MCA that barred habeas corpus petitions from the jurisdiction of all federal courts.

A final incident speaks volumes about the potential impact of the 2006 election results: “Senate Democrats Plan Overhaul of the [MCA] Bill.” trumpeted the headline in the November 17, 2006 issue of The Hill, the “newspaper for and about the U.S. Congress.” The article reported that Senator Chris Dodd (D-CT) introduced legislation that would amend the quickly-passed MCA of 2006. Said Dodd: “[My] bill goes back and undoes what was done [in the MCA].”

II. The Democratic-Controlled 110th Congress, 2007-2009

The change in congressional committee chairpersons, in January 2007, is an immediate consequence of the Democratic Party’s victory. With the shift of power in both houses to the Democrats, investigations are the order of the day for the new congressional leaders. Replacing the absolutely ineffective Republican leaders is a host of frustrated, angry, and very focused Democrats who want and will demand answers to questions that have been ignored for six years by President Bush and his surrogates in the DOD and the DOJ.

Senator Pat Leahy (D-VT) is the new Senate Judiciary Committee chair and, in the House of Representatives, John Conyers (D-MI) is the new chair of the House Judiciary Committee. Both were and remain harsh critics of the Bush administration’s thus-far successful effort (MCA of 2006) to eviscerate habeas corpus due process rights for alleged terrorists held at GTMO. Leahy has called the MCA a piece of “un-American” legislation and has vowed to review and remove its harshest segments.

Already Leahy, who does not officially chair the Judiciary Committee until January 2007, has asked the DOJ to turn over some documents that he believes established standards for the military on how terrorism suspects are detained and interrogated. In addition, he wants the government to turn over all documents “that interpret the scope of interrogation practices permitted and prohibited by the DTA or the MCA.” In his November 17, 2006 request to U.S. Attorney General Alberto P. Gonzales, Leahy wrote that

The American people deserve to have detailed and accurate information about the role of the Bush Administration in developing the interrogation policies and practices that have engendered such deep criticism and concern at home and abroad.”

Congressman Conyers, over the past two years (2004-2006), as minority leader on the House Judiciary Committee, has not been popular with Republicans in and outside the White House. He has

requested investigations of the administration’s renditions of suspected terrorists, [Secretary of State] Condoleezza’s Rice’s possible transgression of the Hatch Act prohibitions against campaigning on the job, DOJ attempts to obstruct the hydra-headed Jack Abramoff investigation, and [has introduced] proposals for the possible impeachment of President Bush.

While the Democrats were in the minority, these legislators, along with Senator Carl M. Levin (D-MI), the incoming chair of the Senate Armed Services Committee, and others, “bitterly lamented the refusal of the administration to provide Congress with documents vital to understanding the treatment of detainees.” However, after the election, they “should have more leverage to obtain these memos.”

There is no guarantee that these legislators will receive the requested information from the Bush administration. It came as no surprise that the administration’s initial response, on November 18, 2006, to Leahy’s documents request was not an encouraging one. Brian Roehrkasse, the DOJ spokesperson, said that “it is vital to protect national security secrets” and that the DOJ “will weigh whether the documents being sought fall under the category of confidential deliberations.”

On another controversial issue, the NSA’s warrantless wire tap program, Senator Leahy, less than one week after the election, said to reporters: “We have been asked to make sweeping and fundamental changes in [FISA] law for reasons we do not know and in order to legalize secret, unlawful actions that the administration has refused to fully disclose. If legislation is needed for judicial review, then we should write that legislation together, in a bipartisan and thoughtful way.”

Senator Carl Levin (D-MI0, the incoming chair of the Senate’s Armed Services Committee, has told the media that his committee will look into the CIA’s extraordinary rendition process.

I’m not comfortable with the system. I think that there’s been some significant abuses which have not made us more secure, but have made us less secure and have also perhaps cost us some real allies, as well as not producing particularly useful information. So I think the system needs a thorough review, and as the military would say, a thorough scrubbing.”

“A vigorous examination of the administration’s conduct is not only the appropriate action as a matter of constitutional prerogative, it is the politically necessary response to voters’ overwhelming rejection of the current Congress’s failure to assert itself in this area,” wrote Stanley Brand, a former general counsel to the Speaker of the House, Tip O’Neal. And Democratic chairs and leaders of both chambers Intelligence, Armed Services, and Judiciary committees have promised something that has been missing from the Republican Congress since 2001: real congressional investigation and oversight of executive department actions in the wars on terrorism. The critical reality is not how the President will respond to these demands from Congress, but, after six years, the very existence of these insistent demands rolling down Capital Hill to the White House.

III. What Will the President Do Now?

“The power to suspend habeas corpus,” wrote Richard Posner, “is essentially the power to suspend constitutional rights—if you cannot get a judge to hear your case, the government can do whatever it wants with you.” The 2006 MCA categorically bars all enemy combatants—in the United States and in GTMO—from seeking federal judicial of their detention. For many, “suspending [or barring persons from seeking] habeas corpus is a terrifying power; it enables the government to imprison people [indefinitely] at will and prevents them from challenging their imprisonment in court.”

As already noted, leading congressional Democrats, including Democratic Senators Levin, Leahy, Dodd, and Durbin (D-IL), the incoming Senate Democratic party whip, among the many Democrats who voted against the MCA, have already introduced legislation or have promised to review and amend controversial segments of that and other laws in the 110th Congress. And, on the other side, President Bush and his Vice President, Dick Cheney, have equally strong feelings about retention of the MCA as signed in October 2006.

How this clash plays out will be seen in 2007 and 2008. Will the President seek some sort of compromise with congressional Democrats or will he veto any legislation that attempts to overturn the MCA’s bar against habeas corpus for all alleged enemy combatants? Will his commitment to the defense of national security at all costs, even if it means denial of due process to alleged enemy detainees, lead to some sort of constitutional crisis?
Since 9/11, President Bush has consistently—and defiantly—invoked his “radical theory of unilateral executive authority” in defending his actions and policies on the terrorist wars. Although in the days after his party’s “thumpin,” Bush sounded conciliatory, nevertheless his view of a largely unimpeded presidency fighting the terrorist wars is a fundamental axiom for him. And, consequently, Bush may refuse to cooperate with Conyers’ and Leahy’s committee requests for documents and other information. As a result, a major constitutional controversy could quickly unfold, paralyzing government.

Certainly, the DOJ briefs filed in federal courts (4th CA, D.C. CA) defending and even extending the scope of the MCA suggest conflict ahead rather than compromise. These latest categorical arguments of the DOJ are not unusual in the war on terrorism. Since 2001, the government lawyers have argued for and defended the most strident actions of the executive branch.

In the six page brief, the DOJ and the Bush administration lawyers, after the election returns were in, took what one legal critic called

the most extreme step yet taken by [the administration] to suspend constitutional rights that, since the nation’s founding, have protected all people detained within the United States. . . . [It signals the] Administration’s determination to push ahead with the government’s most extreme and ambitious attempt to extend its power.

One final observation: while Rumsfeld is gone, Cheney, the eminence grise of the Bush administration, will remain in office until January 20, 2009. On ABC-TV news during the weekend after the midterm elections, he said that “it doesn’t matter” what voters think because the Bush administration has “got the basic strategy right.”

It may not be popular with the public—it doesn’t matter in the sense that we have to continue the mission and do what we think is right. And that’s exactly what we are doing. We’re not running for office. We’re doing what we think is right. (my emphasis)

The important unanswered question is whether President Bush, encouraged by his vice president’s steel will, will continue to adhere to his strongly held beliefs (and those of Cheney) in the face of public and Democratic party opposition.

IV. Back to the U.S. Supreme Court in 2007? You Bet!

The political reality after the 2006 elections is, if anything, more complex than before:

• There still remain a limited set of options facing the president in his terrorist wars,
• Both the president and the vice president are still strongly committed to battling the terrorist wars until victory is achieved, even at the cost of some basic civil rights,
• The posture of the DOJ and White House lawyers regarding the detention of suspected enemy combatants is even more strident than in earlier briefs filed in federal courts.

Furthermore, there is also the following certainty:

• The near impossibility of compromise on habeas corpus, NSA wiretapping, and other controversies impacting the wars on terror that already have or will certainly emerge after the 110th Democratic Congress convenes in January 2007.

Any one but probably most of these situations will most certainly bring into the constitutional storm, once again, the U.S. Supreme Court. If the administration, to cite a few examples,

• Refuses to allow Bush deputies to appear before congressional committees,
• Does not obey subpoenas served on executive officers,
• Refuses to turn over documents requested by Chairs of congressional committees,

or

• If the habeas litigation controversy, based on passage of the MCA just before the midterm elections, reaches the U.S. Supreme Court,

the chances are quite good that the nine justices will grant certiorari and, once again, address some very fundamental constitutional matters.

However, in 2007 or 2008, unlike the earlier cases heard by the justices during the 2003 and 2005 Terms of the Court, the Congress will not be aligned with the president on these legal questions. In some scenarios it may well be that the petitioners in certiorari briefs filed with the Court are Democratic Senators whose requests for information from the White House were rebuffed by the administration. There are interesting days ahead for the Republic.

V. Our Vulnerable Republic Shoulders On

Hopefully, on election day 2006 American voters ended an era of imperial presidential actions. With the loss of his rubber-stamp Republican Congress, the President can no longer confidently act in the ways he has acted since September 11, 2001. A prodding, investigating opposition party is now in control of the “first branch” of the national government; Democratic party leaders in the new Congress will act quite differently—for example, with regard to reviewing past legislation such as the MCA of 2006 and with regard to the President’s warrantless NSA-operated terrorist surveillance program.

“The separation of powers is an essential mechanism for correcting the errors to which each branch of government would be prone in the absence of a competitive environment,” observed federal judge Richard Posner in 2006. The mid-term election results put the federal political system back into some sort of equilibrium. We will see how effective this vote-change/course-change will prove to be.

#2/2007-02-10

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