Executive Intelligence Review
This article appears in the May 16, 2003 issue of Executive Intelligence Review.

Will Congress Defend
The Constitution?

by Carl Osgood

The U.S. Congress has a make-or-break opportunity to live up to its Congressional responsibilities by shooting down Secretary of Defense Donald Rumsfeld's "emergency" legislation, which would effectively scrap the 100-year-old Civil Service system, eliminate collective bargaining rights, and greatly weaken protections against discrimination, and strong-arming of whistle blowers, among the nearly 700,000 civilian Defense Department employees. At stake in the fight over H.R. 1836, The Civil Service and National Security Personnel Improvement Act, is more than the fate of Federal employees. The larger issue is whether Congress will stand up on a bipartisan basis to defeat a flagrantly unconstitutional power-grab by the same Straussian gang in the Executive Branch that was behind the Iraq War and the drive to permanently transform the United States from a Constitutional Republic into a caricature of the Napoleonic or Roman Empire.

The Rumsfeld-Wolfowitz cabal at the Pentagon is dead set on ramming through this piece of fascist legislation (Adolf Hitler imposed almost the identical civil service "reforms" in Nazi Germany in Spring 1933, as part of his consolidation of dictatorial power). In a clear signal of this, Deputy Secretary of Defense Paul Wolfowitz himself appeared before the House Armed Services Committee on May 1, and the House Government Reform Committee on May 6, the day before that committee's markup. Other big guns the Pentagon deployed to turn up the heat on Capitol Hill included Chairman of the Joint Chiefs of Staff Gen. Richard Myers, Vice Chairman Gen. Peter Pace, Chief of Naval Operations Adm. Vern Clark, and Undersecretary of Defense for Personnel and Readiness David Chu. The four hearings—an April 29 hearing before the Government Reform Committee's Civil Service Subcommittee, the May 6 hearing of the full committee, and two hearings of the Armed Services Committee on May 1 and May 2—were highlighted by sharp attacks by the Democrats of both committees, who attacked both the bill's railroad speed and its content.

That railroad speed was shown by the fact that the bill was first sent up by the Defense Department on April 11, just as the Congress was trying to get out of town for the Easter recess. Members of the House, upon returning from the recess on April 28, were confronted with a schedule that called for a Civil Service Subcommittee and a full committee markup in two days. In an April 25 letter to chairman Tom Davis (R-Va.), ranking Democrat Henry Waxman (Calif.) had written that, because of the magnitude of the reforms contemplated in the bill, "It is clear to me that additional hearings are necessary, as well as consultations with outside experts and affected groups, in particular DoD employees." He noted that the starting point for the authorities being demanded by the Pentagon are those granted to the Department of Homeland Security. "Before we grant these requests," he added, "we need to evaluate how well the Homeland Security Department implements its flexibilities, whether they are working, and what problems have arisen."

The entire package includes more than just civil service reforms. It also "reforms" the military personnel system—including giving the Secretary of Defense more control over promotion and assignment of flag-rank military officers—the defense acquisition system, and the Pentagon's internal management system. The civilian personnel provision in the bill would give the department the unilateral ability to develop its own personnel system, exempt from most of the laws governing the civil service, including those portions of the law that provide for performance appraisal, pay rates and classification systems, collective bargaining rights, and due process and appeal rights. Those authorities were already given to the Homeland Security Department, but the Pentagon also wants more authority over the hiring and firing of employees.

In an unusual show of unity, the Democrats on both the Armed Services and Government Reform Committees came out swinging against the bill. The May 6 Government Reform Committee hearing was particularly tumultuous. Nearly all of the committee's Democrats showed up to grill Wolfowitz, and a half-dozen Republicans showed up to express grave concerns about the race to pass the bill.

Wolfowitz Lies to Committee

Wolfowitz's "Straussian" performance (committee members repeatedly caught him lying about the content of the bill, and simply contradicted him by reading from the draft text) was interrupted by House Minority Whip Steny Hoyer (D-Md.). Hoyer, whose district is dominated by government workers, was allowed to give his own testimony strongly opposing the bill. He compared the mad race to ram it through to the lengthy and careful review that preceded the 1978 Civil Service Reform Act. Hoyer warned that Rumsfeld and Wolfowitz are planning to ram the bill through the House committees and then attach it to the defense authorization bill, so that it would never be taken up as a self-standing piece of legislation. He charged that the DoD intends to have the bill passed and signed by President Bush by Memorial Day.

Armed Services Committee Democrats have been equally energetic in their protests. At the May 1 hearing, Rep. John Spratt (R-S.C.) said, "I keep coming across this phrase in the draft, 'at the Secretary's sole, exclusive and unreviewable discretion.' In other words, the Secretary is isolated and insulated from any kind of challenge. Sole and unreviewable discretion. Those are strange words for the government of the United States." Spratt said to Undersecretary Chu, "I'm telling you, this is a hell of a grant of authority."

Rep. Jim Cooper (D-Tenn.), also a member of the Government Reform panel, said, "Because there's so much sole, exclusive, and unreviewable discretion here, I worry that we're abrogating our Constitutional responsibilities." When the Government Reform Committee met, on May 7, to mark up the bill, Cooper offered an amendment to strike the portion giving the Secretary of Defense such authority over the civilian personnel system. He noted that the responsibilities of the Congress are derived from the Constitution and that "we're not supposed to delegate that authority, but that's precisely what we're being asked to do." Cooper's amendment was defeated on a party-line vote of 16-24.

The Constitutional issue also came up with respect to the military personnel provision. Under the bill, the four-star generals and admirals would literally serve at the pleasure of the Secretary of Defense, for as long or as short a time as he would like to keep them on. Lawrence Korb, the director of national security studies at the Council on Foreign Relations, and a former Reagan-era defense official, told the May 2 Armed Services Committee hearing that senior military officers "serve the Constitution. They serve both Houses of Congress as well as the Executive Branch." He told the committee, "You have the power ... to raise and support armies, provide and maintain a navy, as well as to declare war; and you need their honest opinion."

House Version on Fast Track

At least a handful of labor unions have been noisy, as well. The American Federation of Government Employees packed the April 29 hearing of the Civil Service Subcommittee. AFGE president Bobby Harnage told the subcommittee that the DoD proposal "erases decades of social progress in employment standards, punishes a workforce that has just made a crucial contribution to our victory in Operation Iraqi Freedom, and takes away from Congress and affected employees the opportunity they now possess to have a voice in crafting and approving the personnel and other systems of the Department of Defense." He added that "if this legislation is enacted, each individual Secretary of Defense, in cooperation with the President, will effectively own the Department of Defense as if it were a private concern."

However, so far, the runaway legislative train is not slowing down, at least in the House. On May 7, the Government Reform Committee passed a slightly amended version of H.R. 1836 on a straight party-line 24-18 vote. Throughout the markup, Chairman Davis kept assuring the Democrats that there was no Constitutional problem with the bill. However, as Waxman and others pointed out, there is absolutely no language in the bill preventing the Defense Department from abusing the authority granted it.

All that remains is the final disposition of the legislation. It could go straight to the House floor, through the Rules Committee, for passage as a free-standing bill; or it could be added to the Fiscal 2004 defense authorization bill. Either way, it's likely to be muscled through the House by the GOP. What is completely unclear is the fate of the bill in the Senate.

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