PresstheNews.ComPresstheNews.ComPresstheNews.ComPresstheNews.ComPresstheNews.ComPresstheNews
Misconstruing the Constitution?
IN THE open forum event on April 6, 2006 in Charlotte, in response to a comment that touched upon the NSA wiretap question, President Bush stated:
"We ought to use tools necessary within the Constitution, on a very limited basis, a program that's reviewed constantly, to protect us."
"Reviewed constantly, to
protect us"?
FISA was specifically set up to assure that
there was (a) an objective review done in such instances, and (b) an effective
record and basis for such review (neither of which exist under the
current administration's clandestine program). So with no record, what is
this basis of this review? More importantly, how is it reviewed, and by whom?
How is there any way to ascertain that the program
is or will be used
only for its intended purposes?
"Within the Constitution"?
No check upon what
the Executive Branch is doing except by the Executive Branch itself raises
constitutional questions. The
issue of who is doing the reviewing, and more importantly, upon what basis that
review is conducted also raises
constitutional questions. And the unilateral action by the
Executive Branch to ignore broad federal law in order to authorize the
program, also raises
extremely serious constitutional questions.
In essence,The issue is not anywhere near as ambiguous as it has been made out to be by the media, which often simply summarizes the arguments of both sides, without adequate analysis of the relevant underlying facts.
To claim that the Executive Branch has the Power in war time to not only legislate in the absence of preexisting law, but pick and choose which laws already in existence are valid and which are not, and then clandestinely engage in any programs of its own choosing without regard to those laws already in existence, undermines our Constitution's most fundamental purpose -- to establish a government of limited, checked, powers, with a clear delineation of authority between its three branches. The Executive Branch's actions -- by arguing that it deems this specific law necessary or that specific law unnecessary (Congress's express role under the Constitution) -- also usurps the specific authority of Congress under the Constitution, and nullifies the separation of powers clauses therein, arguably its most fundamental set of provisions.
To recap, the President stated that we are doing something within the constitution, on a limited basis, with constant review, when in fact there is no way to know what that basis and review are, no substantial record for there to be an adequate review. This renders the action potentially outside of the limits of the Constitution. On top of that, the program was clandestinely authorized by a broad based program with potential application to every American, in direct contravention of existing law that specifically prohibited it, thereby violating the separation of powers clauses of the Constitution, as well as the President's duty under Article II to "take care that the laws be faithfully executed." (The same article II that has the trick "Commander in Chief" clause that under the administration's argument magically causes the separation of powers clause to no longer apply during war time.)
The basis for any review process begins with the Constitution. It's called; "Congress writes the laws, and the Executive branch sees that they are faithfully executed." As noted in the link above, it is the very foundation of our Constitution. And Congress did set up the specific law for review, known as FISA, which calls for a warrant (whether that warrant, which can be issued before or even after the covert action, so that there is a clear record of what the government does, and on what "basis," to use the President's own word).
Under our founding documents -- and brilliantly one could argue -- our government derives its sole power from the consent of the governed. If there is no reasonable check upon the government, or upon its decisions and actions, including specifically those against the rights of the governed, such consent can not be willfully granted,
[The next set of specific checks, FISA aside, is also, ironically, Constitutional in nature, but unclear (which is why Congress wrote FISA, for the exact precision, clarity and lack of ambiguity which the contorted arguments being given equal shrift in the media seek to undermine. They are the right to free speech with an expectation of privacy from a snooping government (1st Amendment), the right to due process (5th Amendment), and the requirement of a warrant for searches of papers (read, emails) and effects (written prior to the existence of telephones)(4th Amendment).]
The President’s sworn duty is not to protect the people of the United States, but to uphold the Constitution. Yet the President invoked the very Constitutional limits that his program shattered. While it is admirable to want to protect us, the Constitution was set up to protect us from the unchecked decisions of those whom we elect to represent us.
Additionally, a program that is “reviewed constantly,” by those who instituted it, despite the President’s soothing words, does not constitute a review.
Here is what no less than James Sensenbrenner, an extremely conservative House republican, stated with respect to this “review” process, during Attorney General Gonzales’s testimony to the House Judiciary Committee (which Sensenbrenner Chairs).
“I think that saying that how the review was done and who did the review is classified is stonewalling.” “And if we’re properly to determine whether or not the program was legal and funded – because that’s Congress’s responsibility – we need to have answers, and we’re not getting them.”
The review process, under our Constitution, is by the people of America, with a record to go on. Hence the requirement of a warrant under FISA, with the clear delineation by that same Constitution that Congress shall write the laws, and the Executive branch shall “take care that they be faithfully executed.” Not by an administration that decides not only who to spy on, for what purpose, with no record, and on top of that one that provides its own review, and then is not even forthcoming about that review process.
It’s as simple as that. But the mainstream media has to start adequately reporting on the underlying facts, for this clarity to emerge.
Obfuscation and rhetoric used in place of fact can take down great civilizations. It takes time, it’s usually not intentional, but over the history of mankind, it has always been this way. We are not the greatest Nation on earth by accident. And the vision of our founding fathers, and our Constitutional processes, played no small role.