The rule of law is not just a lofty concept to which we should aspire only when convenient. It is a fundamental principal upon which our Republic was founded, and it is the foundation of our free society. I understand the desire to look forward and to forge a new path on high ground instead of on the low road of the past eight years. But to use the need to move on as a reason not to investigate basic human rights violations is unacceptable. Excusing individuals at the highest levels of government from adhering to the rule of law, whether in wartime or not, is a dangerous precedent, for it undercuts the principle of accountability which permeates representative democracy.

Sadly, the world will discover more and more about the acts committed at Guantanamo Bay, Bagram, and elsewhere around the world. There is no avoiding that eventuality. It is our choice as a nation whether to pursue the path of truth ourselves, or leave the details of the abuse to be painfully revealed by others. Releasing the OLC memos was a courageous and admirable first step. But we must not stop there.

Whether it is through an independent investigation, a "Truth Commission," a Congressional investigation, or a criminal investigation by the Department of Justice, action must be taken. As long as those who condoned and approved these despicable acts are permitted to escape the consequences, we allow our moral standing in the world to be severely compromised. September 11 did not suddenly legalize torture, nor did it exonerate those who authorized such a heinous deviation from the rule of law. How we address these abuses will shape the image of the United States for decades. In order to truly clear our good name and put the past behind us, the United States must strive to be sure that this dark period of sick and secretive torture schemes receives the scrutiny it deserves.

“The U.S. judicial system is also not doing its part to deter corruption and fraud by aggressively prosecuting the perpetrators of these crimes. Many cases that are painstakingly built in Iraq by investigators are, my staff was told, turned over to the Department of Justice or U.S. attorney offices for prosecution only to fall into a black hole, an abyss of cynical indifference to punishing criminals and recovering billions in lost funds. We are not deterring fraud and corruption, and we are not demonstrating the benefits of a just “Rule of Law.” How can we ask Iraqi investigators and judges to arrest and prosecute their citizens for these crimes, often at great risk to their personal safety, when the Americans there doing the same thing go unpunished?

“Senator Dorgan, as you know, I invited Secretary of State Condoleezza Rice and Attorney General Michael Mukasey to an Appropriations Committee hearing on September 17 to address the problems my staff uncovered. Overcoming these barriers is neither insurmountable nor expensive, but it does require attention and sincere commitment from these Cabinet officers.

“However, neither Secretary Rice nor Attorney General Mukasey could find the time to address these serious problems for which they have responsibility, problems that have squandered our resources, and problems that are arming our enemies. Our witnesses today will bring more attention to the scope and consequences of these problems, and I look forward to hearing their testimony.”

“Mr. President, what is really at stake for the United States in Afghanistan? We all know that Afghanistan is not a threat to us militarily. The Taliban is not a threat to us militarily. Al Qaeda, however, is a demonstrated threat to us with ambitions and a philosophy that must keep us vigilant. But the link between al Qaeda and Afghanistan is a tenuous one, based only on the temporary expediency of location, an expediency that has already been replaced as the al Qaeda leadership has moved, and may move again.”

“Building a Western-style democratic state in an Afghanistan equipped with a large military and police force and a functioning economy based on something other than opium poppies may or may not deny al Qaeda a safe haven there again. It will guarantee that the United States must invest large numbers of troops and many billions of dollars in Afghanistan for many years to come, energy and funds that might otherwise go toward fueling our own economic recovery, better educating our children or expanding access to health care for more of our own people. And yet there are many here in this body -- the Senate -- who believe we should proceed with such a folly in Afghanistan. During a time of record deficits, some actually continue to suggest that the United States should sink hundreds of billions of borrowed dollars into Afghanistan effectively turning our backs on our own substantial domestic needs -- all the while deferring the costs and the problems for future generations to address.”

In his notes of the Constitutional Convention on June 26, 1787, James Madison recorded that the ends to be served by the Senate were “first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led... They themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.” That “fence” was the United States Senate.

The right to filibuster anchors this necessary fence. But it is not a right intended to be abused.

During this 111th Congress in particular the minority has threatened to filibuster almost every matter proposed for Senate consideration. I find this tactic contrary to each Senator’s duty to act in good faith.

I share the profound frustration of my constituents and colleagues as we confront this situation. The challenges before our nation are far too grave, and too numerous, for the Senate to be rendered impotent to address them, and yet be derided for inaction by those causing the delay.

There are many suggestions as to what we should do. I know what we must not do.

We must never, ever, tear down the only wall – the necessary fence - this nation has against the excesses of the Executive Branch and the resultant haste and tyranny of the majority.

The path to solving our problem lies in our thoroughly understanding it. Does the difficulty reside in the construct of our rules or in the ease of circumventing them?

A true filibuster is a fight, not a threat or a bluff. For most of the Senate’s history, Senators motivated to extend debate had to hold the floor as long as they were physically able. The Senate was either persuaded by the strength of their arguments or unconvinced by either their commitment or their stamina. True filibusters were therefore less frequent, and more commonly discouraged, due to every Senator’s understanding that such undertakings required grueling personal sacrifice, exhausting preparation, and a willingness to be criticized for disrupting the nation’s business.

Now, unbelievably, just the whisper of opposition brings the “world’s greatest deliberative body” to a grinding halt. Why?

Because this once highly respected institution has become overwhelmingly consumed by a fixation with money and media.

Gone are the days when Senators Richard Russell and Lyndon Johnson, and Speaker Sam Rayburn gathered routinely for working weekends and couldn’t wait to get back to their chambers on Monday morning.

Now every Senator spends hours every day, throughout the year and every year, raising funds for re-election and appearing before cameras and microphones. Now the Senate often works three-day weeks, with frequent and extended recess periods, so Senators can rush home to fundraisers scheduled months in advance.

Labels: obituaries, Robert Byrd