Such as anti-terror and anti-riot laws, America is retiring theirs .

The US Senate has not passed the renewal of some of the sunsetted provisions of the Patriot Act. From here ;

The filibuster, triggered by a bipartisan group of senators worried about protections for civil liberties, leaves major provisions of the Patriot Act in danger of expiring at the end of the year. The White House and majority leader Bill Frist, a Tennessee Republican, rejected a short-term extension of the law, which would have allowed time to negotiate changes early next year.

Before the vote, Frist and his leadership team were sure that they could get the 60 votes needed to end debate on the Patriot Act extension and bring the bill to a vote. But rank-and-file senators, some of them angry over a New York Times report that Bush had personally authorized the NSA to eavesdrop on Americans' conversations and e-mails, didn't comply.

It is caught in a filibuster. US Senator, Russ Feingold, has been doing an Andrew Bartlett on the issue during the last week . Since Andrew is a permanent part of the Australian blogging landscape, the question needs to be asked, why isn't Russ Feingold doing it permanently too?

Bruce Schneier 's ideas have been commented about on SSR in the past in relation to security. However in this article titled; Unchecked presidential power he has a look at separation of powers and the aggrandization of the executive branch in times of war.

Schneier argues the greater danger in the recent revelation, even confession, that the Bush Administration instructed the NSA to eavesdrop on American citizens without bothering to go through a FISA issued warrant is in the breaking of separation of powers.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

Schneier addresses Yoo's justification for the circumventing of judicial approval by the claim that the US is at war with terrorism, and in a time of duress on national security the Executive should be able to do everything they can to ensure the security of the state. Firstly, no war has been declared. Something which the US Constitution is explicit about. The American Founding Fathers required that declaring war be the sole authority of the Legislature, as war itself often only bolsters power to the Executive.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Schneier finishes with a warning that separation of powers is a fundamental tenet of liberal democracy;

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

The United States has greater separation of powers between the Executive, Legislature and Judicial than Australia's Westminster system does. In the US the Executive is the President and his Executive Cabinet of appointed secretaries, such as the secretary of defence, secretary of state etc. The legislature is the Senate and House of Representatives, also known collectively as Congress. The Judicial is the federal court system which the President nominates candidates for and the Senate approves or rejects.

In summary the Legislature makes laws, the Executive executes those laws, and the Judicial interprets those laws. One of the issues is that Bush made up his own laws when he made an executive order that contravened a law from the legislature, and without judicial oversight. With that executive order he became Executive, Legislature and Judicial all in one person. This is commonly what the old Kings were.

In the Westminster system the Executive is split between the Governor-General [GG] and the Prime Minister [PM]. The Governor-General is the formal Executive but the Constitution limits the GG's power by demanding that the GG only take advice from the Prime Minister.

The Prime Minister is the informal Executive, and the PM's senior ministers make up the Executive Cabinet. For instance the Treasurer, the Foreign Minister, the Health Minister etc. The Legislature is the Senate and House of Representatives which are collectively known as Parliament. The Judicial is the commonwealth court system. Appointments to the Judicial arm are made by the Prime Minister.

One of the problems in the Westminster system is that the power of the Executive is embedded in the Legislature. The Prime Minister not only makes laws, but also executes them. As a consequence the separation of powers is weak in the Westminster system, especially when the one check on the Executive, the Senate, is controlled by the same party as the Prime Minister's.

Separation of powers is supposed to put the tensions between each branch of government in balance, ensuring that one arm cannot crowd out the others and claim all authority to themselves. It is a barrier to tyranny. One that is inherently weak in Australia, and it appears being eroded in the US under the auspices of the national security state.

More information;

• Separation of Powers or Executive Authority?
• Joh Bjelke-Petersen and Unicameral Parliament
• Separation of Powers and Parliamentary Systems

An ethics reform bill has passed in the US. I think those bullet points will help improve legislative governance. It is a shame the Australian Senate is not independent enough from the executive presently to pass similar laws which enforce process on the Senate.

Earmarks are quite small in terms of dollars, especially in relation to budgets and appropriation bills. The issue with earmarks is that they are repugnant because they are so cynical. Revoltingly so.

The lobbying stuff I am not so concerned with as long as it is transparent. However the dead of night additions - which are an attempt to subvert the liberal democratic process - and anonymous holds will be good to be removed. A Senator placing a hold on a bill should be proud to do so if they are protecting minority rights.

Something had to be done after the US Republican Party behaved like children when they controlled the legislative. It was not pleasant. So I am not surprised that a law of this nature has passed the Senate.

One of the problems with the Rovian form of governance was the government existed for the party, not the nation. So we got a very cynical and lop-sided view of policy; it was essentially for executive aggrandisement and to make a natural party of government through controlling the branches of government.

It failed. The public is not stupid. But it informed government at levels other than the national level. I cannot say that county governance has been good where I am. Rovian style politics was conducted which had little care for separation of powers and constitutionality.

The state had a mixed record. The Governor, Mark Warner, provided good governance. But the legislature and most recent governor have not. The result is an unconstitutional law to raise monies through unjust punishments on drivers. Mark Warner campaigned to raise taxes to pay for the transport issues.

People in the area know something has to be done, and are willing to listen to a method to achieve it, even if it involves raising taxes. But the legislature and present government won't do it. It will just put the issue off into the future for someone else to deal with.

The Town I live in has provided good governance and has met its responsibilities without raising taxes in contrast to the county who has got drunk on increasing property taxes - in the same way states in Australia have over stamp duty.

Warner started a run for President but then opted out to spend time with his family (yeh right). I suspect he knew he couldn't raise enough money to win. The scuttlebutt was that he was going to run for Governor of Virginia again. Virginian Governors are not term limited but cannot serve consecutive terms. I think that is a bit silly, I would be more comfortable with consecutive terms but a maximum of two terms.

With the retirement of Republican Senator John Warner, the former Democrat Governor, Mark Warner is now running for the national Senate. He was a good executive, but will he make a good legislator?

The electoral system in the United States is heavily federal in character with the states controlling many of the machinations and procedures for the national elections. A common device used by the states to keep out unwanted candidates is the requirement for a certain number of signatures to be collected for someone to be on the ballot. In my opinion this is an onerous task which acts as barrier to compete for many candidates.

It also has some oddities, for instance today the Republican would-be challenger to Senator John Kerry was thirty short;

According to Secretary of State William F. Galvin's office, Ogonowski's campaign delivered just 9,970 certified voter signatures to its election division today just before the final deadline, 30 short of the 10,000 he needed.

It will most likely mean he is off the ballot short of legal re-instatement.

In the Boumediene vs Bush case [pdf] the US executive argued that the constitution was not a blanket document which inhibited the executive's operation. The constitution, it as argued, was limited in application by territoriality and citizenship.

The prisoners were placed in Guantanamo Bay, which is Cuban territory, in order to place the executive's action in a grey area of constitutionality. The one American citizen that was caught in Afghanistan was quickly given a civil trial; leaving non-citizens in Guantanamo. The Bush Administration argued that the constitution did not apply as it was non-American territory and non-citizens; consequently those detained had no political rights and the were no prohibitions on executive action.

To constitutional liberalism and republicanism this is a repugnant argument as it is the enunciation of a state of exception within a constitutional system. The US Supreme Court found that the Bush Administration's argument was repugnant to common law, past court decisions and existing constitutional practice.

The Government's sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo's political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government's view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba.

The Nation's basic charter cannot be contracted away like this.

The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is."

The US Supreme Court's ruling places the constitution as a restriction on any government action and that constitution is not bounded in its application by either territory or citizenship.

With the Bush Administration coming to a close what are we to make of foreign policy during that period? It is commonly supposed that a cabal of neo-conservatives hijacked the normal state policy apparatus and enforced radical policies on America. Certainly PNAC and neo-conservatism were discovered after the rush to invade Iraq was pushed through the mass media. But both those groups based their policy around American global hegemony and the maintenance of the hegemon. That is not really that radical, it is how super-powers have acted since the beginning of time.

White House from photogeneric's photostream.

Probably the best idea we have of neo-conservative foreign policy is from an article by Irving Kristol. Where he almost bmusedly discusses the neo-conservative approach to foreign policy. Again, it is not really that radical. It is based upon national patriotism, distaste for world government (UN etc), the friend-enemy distinction in international relations and finally that American interests are global, not national;

Finally, for a great power, the "national interest" is not a geographical term, except for fairly prosaic matters like trade and environmental regulation. A smaller nation might appropriately feel that its national interest begins and ends at its borders, so that its foreign policy is almost always in a defensive mode.

A larger nation has more extensive interests. And large nations, whose identity is ideological, like the Soviet Union of yesteryear and the United States of today, inevitably have ideological interests in addition to more material concerns.

This can be construed as an idealogical justification for the defence of democratic Israel from the monarchies, oligarchies and dictatorships of the Middle East. In conjunction with the friend-enemy distinction it can possibly be seen to aim at Saddam Hussein as well.

But what of American interests being global? Neo-conservatism, like conservatives from the 19thC see the collapse of the nation that ensures the freedom of the seas - formerly Britain, now America - as an essential role in the global order .

Consequently the maintenance of American hegemony becomes an altruistic and necessary policy. Currently the US maintains it position at the top of the international pile through its industry and culture which are massive consumers of finite energy resources. In addition, a one party state in China is now challenging the US for these resources.

The Carter Doctrine has been around since the 1970s and states that the US will go to war to ensure the security of its energy supplies. This is not a new thing and it is possible many decades of US policy makers have become used to the idea of some kind of US military intervention in the Middle East would happen.

After the attacks on New York on September 11th a US national security document included the doctrine of pre-emption, which can be called the Bush Doctrine. This enabled the US to strike another country based on the assumption of terror threats:

We will disrupt and destroy terrorist organizations by: ... defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders.While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country;

By 2002 there were the doctrines in place to strike into the heart of the Middle East with US military power. The political sell of it was a different matter. The Bush Administration went quickly from freedom and democracy, to nuclear weapons, to mushroom clouds, and so forth. In the end they settled on the Schmittian policy of vilifying their political opponents.

So how radical was the Bush foreign policy? The main incident the Bush Administration will be remembered for will be the invasion of Iraq. Here the cassus belli was tenuous at best and an outright fabrication at worst. The complete schmozzle of policies after the invasion immediately discredited what good will remained for America.

Where did the policy for the invasion of Iraq come from? The Bush Doctrine allows for the pre-emptive strike against nations based on terror threats, but Iraq did not satisfy this. Neo-conservative foriegn policy allows for the friend-enemy distinction which Hussein obviously fell on the wrong side of. But not enough to invade a country and place American military power at risk.

Bush often talks in speeches of freedom and democracy and how America is bringing it to Iraq. There was also the hope that it could shake up the region and democracy could flower across the Middle East. The opposite has happened with Iran becoming more powerful for having an American neighbour in Iraq. The freedom and democracy reason is weak as it was one of the constantly shifting political sells during the run up to the war. I don't doubt Bush and others hope for it, but it is not enough to justify an invasion policy and its consequent cost.

The only other alternative was that it was strategic in an attempt to secure American energy supply with the establishment of a geographical stake in the Middle East along with a political, economic and militaristic one. In this area the Bush Administration was not radical as it followed on from a doctrine that dated back to the 1970s. It can also be construed that this process was to ensure American pre-eminence economically and in global affairs.

The two US Presidential candidates are established and both have announced their Vice Presidential [VP] co-runners. Where once the VP was whoever came second in the electoral college, now it is an essential political positioning for any candidate. Obama used Joe Biden to plug any holes he had in his foreign policy legitimacy, while McCain chose a left of field candidate which no-one is really sure why.

Portrait of a Candidate from Time

Obama is leading in the polls and electoral college currently but much is up in the air. He is a more natural politician than McCain and a better rhetorician. Additionally his campaign has been more disciplined which in the day and age of gotcha journalism allows for fewer off-message sound bites to escape.

McCain is not the same man that ran in 2000. He lived to his maverick self but was beaten by the electoral sensitivities of Bush and Rove; who are very skilled at getting elected but absolutely woeful at governance.

The McCain campaign of 2008, once becoming the front-runner, is now preaching to the evangelical base and espousing a Jacksonian foreign policy populism.

I personally think there will be another electoral blood-letting in 2008 the same as their was in 2006 with Republicans in the house and senate toppling like dominoes. I expect Obama will win in an electoral-college landslide as well even though the polls don't point to it yet.

The counter-weight is that identity politics still count. Palin is being touted as 'one of us' by evangelical conservatives who weigh in more on character identity than resumes, competency or merit. It may be that identity to McCain's evangelical message, populist foreign policy, republican party identity and maybe even latent or passive racism against a black president will get McCain across the line.

I don't see it though. I expect the Republicans to lose the Senate as well and Obama to walk in as President. The Bush Administration; through bad governance, political abuse and sheer incompetence; has, in my opinion completely broken the republican brand for at least ten years.

We shall see.

It was probably naivety on my part but I can recall being surprised when I learnt that the Republican Party in DC would manage meetings that met weekly which would hash over the media messages of the next week. I can understand Karl Rove doing it in the White House, but this meeting included the media - as opposed to political operatives. Producers from TV, radio and the researchers for op-ed writers would be present at the meeting. This was how the Republican Party managed media discipline and had Americans hearing the same thing over and over no matter what their preferred media for information.

So we have political pundits, or opinion makers, who are little more than performers. I do not know how they can just surrender their conscience in such a manner and say completely opposite things to what they may feel or believe. I don't have the personality to do that kind of thing. I have great difficulty not being me.

So I have issues understanding how political performers like in these videos can just do what they do.

First was the open mic video where Chuck Todd, Mike Murphy and Peggy Noonan gave their non-performed opinions. It was honest enough that Noonan decided she had to make a rebuttal to herself and that she didn't really mean what she said when the cameras and mics were supposedly off.

Then there is this video of Republican mouthpieces happily contradicting themselves over a period of time. The Daily Show first made this piece of breathless hypocrisy visible when they did the debate between Governor Bush and President Bush. I suspect to sleep straight in bed at night these people would either need to be amoral or treat it as a performance - and not real. Then again maybe they can surrender their ego, morality and conscience to a group dynamic where consistency and honesty no longer matter.

Naked Capitalism cynically argues that to maintain the pretense of the United States being free market a bank must be allowed to fail - and soon. This will offset the lending window the Federal Reserve established and the using of approximately five trillion of US taxpayer money to capitalise Fannie Mae and Freddie Mac since they were on the brink of insolvency.

After Freddie and Fannie, Paulson cannot be perceived to be rescuing another firm, particularly a private company that plays no special role (as far as most people are concerned) in things they care about, like housing. Unlike Bear, Lehman is not a big credit default swaps protection writer. That was the exposure that led the powers that be to worry about a systemic failure. Even though Bear and Lehman are similar in size, their business mix differs in ways that makes Lehman dispensable. In fact, Paulson almost needs to let a financial player fail to prove that he is not a toady of the industry.

So Lehman is the most likely candidate for being allowed to fail. The free marketers in the media and administration can point to Lehman and say, "See, the market works, banks can and do fail. We don't bail them out." Except of course when they do. I suspect Yves Smith will be correct about the politics surrounding the free market pretense.