The Controversy over the Bush Administration's Ports Deal:
An Illustration of the Resilience of American Democracy, In Which Even Non-Issues May Lead to Needed Political Corrections

By EDWARD LAZARUS

Thursday, Mar. 02, 2006

The recent furor over the Bush Administration's agreement to permit a Dubai-owned company to take over management operations at six major American seaports has political analysts asking whether the country's political balance has reached some kind of "tipping point."

Is this the point, some ask, when congressional Republicans permanently unlink themselves from an increasingly unpopular Administration? Or is this the point when the public starts to trust Democrats as much as, or more than, Republicans on issues of national security? Or is this the point at which Administration bungling finally gives Democrats a realistic hope of recapturing the House or Senate in 2006?

One or all of these may be the case (or perhaps none). But I marvel at the brouhaha for a very different reason. To me, it reflects the astonishing resilience of our democracy, which -- despite healthy doses of opportunism, hypocrisy, incompetence, corruption and malfeasance -- somehow manages to hold together and re-balance itself over time.

With Port Security Already Dismal, the Ports Deal Is Not the Real Issue

It is hard to imagine an issue blown more out of proportion than the ports deal. To be sure, we have a colossal problem with port security. Every year, millions of closed containers enter American ports and we have no effective system in place for checking their contents. Troubling, too, is the fear that an explosion even at a port itself, before a container is checked, could be disastrous.

The 9/11 Commission put this problem front and center. Security experts of every stripe have been raising the roof with cries of urgency and suggested improvements. Yet by common account, since the time of the Commission's report, the Administration has done little to marshal the resources necessary to close this gaping security gap.

But from the public information available, it does not seem that the ports deal, if even it had sailed through, would have significantly changed this already dismal security situation.

Neutral reports suggest that the company in question is pretty darn good at managing seaports - a task it performs all over the world. And although the United Arab Emirates, which has a fair amount to answer for, is an owner of the company, the company is run, apparently without interference, by Aussies, Brits, and others whose states of origin carry no stigma.

In sum, while we ought to be desperately worried about port security, the reasons for this have little to do with the Dubai deal. And for this reason, one really has to marvel at how opportunism and political calculation can combine to produce truly beneficial political effects.

We Have Much More Serious Problems than the Ports Deal Right Now

Just think about what's been going on in this country for the last few years. Irrespective of congressionally imposed limits or the norms of international law, the President has claimed for himself a right to imprison and to torture, and a right to broadly wiretap without warrants in the name of national security. With this nod from the top, our armed forces and law enforcement agencies have indeed tortured detainees, wrongly imprisoned detainees without legal process, and broadly wiretapped - and they have done so with minimal resistance from the American public or other governmental institutions. One might have thought that, at least, the indefinite detention of American citizens without charge in military prisons would have sparked massive protest - but it did not.

Along the way, Republicans have sought to entrench their power on a near-permanent basis by manipulating election districts, monopolizing corporate campaign contributions (sometimes unlawfully), and paying off journalists - all while, at the same time, building a media apparatus that will parrot the party line.

Within government, the Administration has built an echo chamber that shuts out the potentially discordant views of civil servants, in favor of the self-serving views of political appointees -- many of whom are either unqualified cronies or impervious to rethinking dogmatic views in the face of contrary evidence. Dissenters are smeared; whistleblowers investigated and prosecuted; political opponents subjected to trumped-up audits and whispering campaigns.

The "independent" judiciary is packed with loyalists long groomed to inject right-wing policy into the law.

Big business helps shape government policy in secret meetings with top Administration officials, while gorging on delicious new tax credits and sweetheart contracts for rebuilding Iraq.

Meanwhile, the average family watches its standard of living inch lower, as the pay gap between ordinary workers and top executive takes on Grand Canyon-like proportions. Health care remains unattainable for 48 million and counting, and children attend public schools that literally crumble around their heads.

Oh yes, I almost forgot: The President took us to into a war that has resulted in thousands of American deaths, based on a description of Iraqi capabilities that he either knew or should have known to be false.

The Resilience of Our System in the Face of Serious Governmental Misconduct

And yet the Republic muddles through. Street protests, to the extent that take place at all, are tame affairs. The idea of suicide bombers or insurrection or radical protest of any kind feels, well, downright un-American -- in the literal sense of not being in the range of contemplated behavior in this country.

No doubt our insulation from the horrors of serious civil strife arises from a complex set of historical and economic forces. Our history has its own set of tragedies. American hegemony over the continent came at the moral price of a brutal conquest of aboriginal peoples. We rid ourselves of slavery only through a ferociously destructive civil war.

But for many generations, we have been blessed with little of the sort of religious and ethnic conflict that still rips apart nations all over the globe, as well as a level of economic prosperity that helps quell the fires of discord.

No less important, we live in a society that has from its inception enjoyed a talismanic belief in the "rule of law." Whatever the origins of that commitment, however much we may dispute what that "rule" requires, the concept itself seems to exert a centripetal force that keeps an enormously diverse and sometimes disharmonious society from flying into pieces.

How the Rule of Law and the Separation of Powers Keep Our Democracy on Track

Our governmental institutions, however flawed, still reflect this. The Supreme Court still tells the President that his authority over enemy combatants is not unbounded. Federal prosecutors within the Executive Branch still indict high-ranking White House aides and Administration-friendly lobbyists.

And now, in a reaction triggered by the revelations of the NSA warrantless wiretapping program and the Dubai ports deal, a previously supine Congress has begun to re-assert itself as a co-equal branch of government - one with important responsibilities with respect to overseeing how the Executive Branch is carrying out and following the nation's laws. Capitol Hill is suddenly alive with meaningful hearings and potential investigations that are welcome, if long overdue.

It is, of course, deeply ironic that a non-issue like the ports, by changing the political fortunes of the leadership, can be the catalyst for partially restoring a balance of powers within the federal government that has been profoundly off-kilter. But that seems to be the American way: Third-rate Watergate burglaries, freak hunting accidents, and other incidental events may turn the ship of state more dramatically than incessant, high-volume debates over policy.

That this is so, must either be a matter of dumb luck, or a testament to the resilience of our social fabric and institutions.

Not All Democracies Are Fated to Be As Lawful, or as Lucky, as America's Has Been

There is a cautionary tale in all this. Domestically, there is of course the problem of our being inclined to take too much for granted and, thus, to pay too little attention to genuine threats to the rule of law we so cherish. Though the ports deal may be a non-issue, NSA wiretapping surely is not. Yet many Americans seem to be evaluating wiretapping as if it were merely a policy proposal - not a fait accompli that required a blatant bypass of Congress.

But even more urgently, it is a stark reminder of why democratic governance is not easily birthed in places like Iraq that do not have the luxury of dumb luck -- nor of a deeply engrained legal and democratic tradition with which to resist destructive forces immeasurably greater than those we face here.

In other words, that we can find ourselves embroiled in heated debates over phony issues is a measure of our enormous good fortune, within an often tragic and freedom-killing world.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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