Thursday, January 17, 2008

Bush, whales, and the rule of law

-- by Dave

"If the administration can just wave a magic wand and do away with the will of Congress and do away with the will of the courts, that raises a very serious question about how our democracy is functioning."

A lot of people have been raising this point over the past year and more about the Bush administration -- notably the civil libertarians and legal experts who have been creating a chorus of concern about the Bush administration and its assertions of executive privilege in shielding itself from congressional investigations, or its similar assertion of immunity from judicial review in such matters as military tribunals, or its insistence that torture is an acceptable tactic in fighting "the war on terror," and its insistence on flouting the law regarding the use of wiretapping and other surveillance of American citizens.

Namely: Is the Bush administration now above the law?

The same point was made today on the front page of the Seattle P-I by Daniel Hinerfeld of the Natural Resources Defense Council. The NRDC, you see, had sued to stop the Bush administration from allowing the Navy to use experimental sonar in sensitive areas of the California coast -- and they were feeling the tracks of the Bush steamroller all over their backs:
In a memorandum issued while he was traveling in the Middle East, Bush said the training was "in the paramount interest of the United States" and "essential to national security," and he therefore issued the Navy a waiver excusing it from certain laws.

... Earlier this month, U.S. District Judge Florence-Marie Cooper in Los Angeles issued an injunction limiting the Navy's use of midfrequency action sonar. Citing the Navy's documents, she said that the training could cause temporary harm to whales in 8,000 cases and permanent hearing damage in 466 cases.

The same kind of sonar is used in Puget Sound and on the Washington coast, local Navy officials said Wednesday. It's the primary means for detecting diesel electric submarines.

In California, Cooper ordered the Navy to maintain a 12-mile no-sonar buffer zone along the coastline, to turn off the sonar when marine mammals were seen within 6,560 feet, and to monitor for the presence of marine mammals.

Navy officials called the restrictions "untenable" and said that they created "a significant and unreasonable risk that the Navy will not be able to conduct effective sonar training necessary to certify strike groups for deployment."

Bush's waiver alone doesn't sink the court's injunction, but could strengthen the military's case. The fight was expected to go to a three-judge panel in the 9th U.S. Circuit Court of Appeals in San Francisco, but late Wednesday the appeals court remanded the issue to the U.S. District Court in Los Angeles to consider first.

Let's not kid ourselves: Bush's edict means a likely death sentence, or at best serious injury, for any cetaceans -- whales, dolphins, porpoises, all of them creatures whose primary world is a sonic one -- who happen to be in the area when the Navy sets off its blasts. It won't be pretty -- but then, only a few of them will wash up, so who's to notice?

Last summer I reported earlier that something was afoot with the administration regarding the sonar policy:
One thing I've learned from watching this administration is that when it breaks well-established norms, and then tries to pretend that doing so is normal, it's all a pretense to cover something devious in the offing. Think of the case of the eight fired U.S. attorneys, an action that reflected the White House's now-evident determination to politicize the Justice Department.

In this case, the administration is short-circuiting the normal hearing process -- typically, the public is given 60 to 90 days for comment, not 14 -- because it's self-evident that it is determined to deploy its deadly new sonar in the Puget Sound, the public -- and the wildlife -- be damned. What ulterior motives lie beneath that are hard to discern.

Well, I think we can see what those motives were now: To keep the "unitary presidency" ball moving forward, expanding its purview to even environmental policy.

This reminds me of a truth about the larger picture of politics, a truth that's one of the reasons we operate this blog the way we do: The power-mongering right-wing approach to governance has poisonous consequences for nearly everything it touches. The Bush White House's seizure of seemingly illimitable executive powers has affected not just criminal law enforcement and the civil justice system, but nearly everything that falls under the umbrella of our democratic institutions: civil rights, consumer protections, education, the environment.

It's bad for all of us, and all the more reason for all these disparate interests to join forces and take up each others' cause. When people like Bush and his minions get away with ignoring the FISA statutes and outing the identity of a CIA agent, that helps that big ball of all-consuming power get rolling. And by the time it has finished its spiral downward, it manages to crush just about everyone who gets in its way.

That includes, at the bottom, real-world end, whales and dolphins and porpoises. Of course, you'll argue, they're only animals. Yes, perhaps so, but you're talking about animals killed needlessly and heedlessly -- and most of all, illegally, were the normal rule of law to be adhered to here.

But it isn't. It's George W. Bush's world; we just live in it.

Of course, most of us are simply looking forward to the national recovery scheduled to begin January 21, 2009. You just have to hope that anything is left standing.

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