When onlookers asked Ben Franklin what sort of government the constitutional convention had produced, he told them “A republic, if you can keep it.” Well, we haven’t. We no longer live in a constitutional republic. The republic is dead, deceased, demised, passed on, no more, ceased to be, expired, late, bereft of life; it is an ex-republic. You still get to vote, your elected representatives still get to legislate, at least whenever Senate majority leader Harry Reid gets permission from minority leader Mitch McConnell to pass something other than gas, but the fundamental balance that defines a republic is gone.

Two recent executive actions against the Constitution highlight the situation. The first was the president’s use of his signing statement on the National Defense Authorization Act of 2008 to flatly deny the Congressional power of the purse, refusing to acknowledge the authority of Congress to prohibit him from using money for purposes other than specified in the appropriation, in this instance building permanent bases in Iraq or controlling Iraq’s oil. The second was the declaration by CIA director Michael Hayden that the US has used waterboarding against terrorism suspects and reserves the right to do so again.

The Constitution is explicit on the matter of money: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” But Congress declined to challenge the president’s reservation of authority to do just that. The strongest response from Democratic leaders was Nancy Pelosi’s statement that “I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. His job, under the Constitution, is to faithfully execute the law – every part of it – and I expect him to do just that.”

Or?

Waterboarding is often described as “simulated drowning”, but there’s nothing simulated about it. If you keep pouring water into someone’s lungs, they will drown. Interrupting and restarting the process doesn’t make it “simulated;” only incomplete. Waterboarding is torture. Torture is illegal under US and international law. The director of the CIA has just told Congress that yes, the US does torture and will again if the president thinks doing so is appropriate.

The reaction from Congress? Republican Kit Bond said he would strip a provision from pending legislation that would limit legal interrogation techniques to those described in the Army field manual, which don’t include waterboarding. Among Democrats, the strongest response came from Senator Dick Durbin, who demanded that Attorney general Michael Mukasey “investigate the instances in which the Administration has used waterboarding to determine whether any laws were violated,” a demand that tactily accepts Mukasey’s contention that the practice is legal under some circumstances and that Mukasey has now summarily rejected on the basis that his predecessor already established that it was legal. You tell ‘em, Senator.

There cannot be more than a handful of people in Congress who genuinely believe waterboarding isn’t torture. The rest either support the use of torture or are afraid to take the actions necessary to put that genie back in the bottle. But make no mistake: at least 400 members of Congress know that president Bush and other high-ranking administration officials are legitimate, documented, self-confessed war criminals, and they’re not going to do a damned thing about it.

So that’s the situation: the administration commit war crimes with impunity (and immunity), and Congress does nothing. The administration repeatedly reserves the right to break the law, and Congress does nothing. The administration asserts the right to misappropriate federal funds, and Congress does nothing. This is not a republic. Congress has voluntarily surrended to the president something that doesn’t belong to them: our franchise.

Life hasn’t changed overnight. What has changed is that responsibility for decisions on the disposition and treatment of enemies of the state, as defined by the state in the person of the president, has been transfered from the legal system to the personal discretion of a small group of players. What has changed is that Congress has abdicated the power to legislate in the arena of national security. What has changed is that the law is no longer the defining characteristic of this country.

Maybe that’s no big deal. Sure seems as though it ought to be.

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