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Bio Weapons Labs: Scapegoating the Media Misconstruing the Constitution The Democrats and Harry Taylor The Bush Administration Environmental Record The Bush Administration Obsession with Secrecy The 2004 Election Vote Controversy
Sheep Following the Herd
The Real Story
of 2004
Immigration Backwardness
Nature; its Power, and our Effect
Upon it To Preserve, Protect, and Defend the Constitution Missed Opportunities in the War on Terror The Standard Line on the Economy Press Coverage of Leaks and Wiretaps Irresponsibility on Defining the War The Right Questions in the War on Terror
Bio Weapons Labs: Scapegoating the Media Misconstruing the Constitution
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ARLEN SPECTER AND THE U.S. CONSTITUTION: SIGN OF THE TIMES
(June 17, 2006) (Part I of II) The
underlying story has not been sufficiently highlighted,
or clarified, in the media. But
Senator Arlen Specter (R-PA) has been playing a pivotal role in the
NSA surveillance case, for better or for worse.
In late April, Specter,
asked
"where is
the outrage." As noted
at
that time, he asked this:
Not necessarily because the program unambiguously
violated the
Foreign Intelligence
Surveillance Act (FISA), not necessarily because the program
unambiguously
violates the Constitution,
and not necessarily because the program was clandestinely authorized (and had to
be discovered via leaks, which the administration now also condemns and
ostensibly wants to imprison journalists for), but because, on top of all this,
the administration
has
not even been
forthcoming
about
the
program itself.
Developments since have rendered the story even more consequential. And last week, according to CNN News, Specter finally warned of a "constitutional confrontation" with the Bush administration over it.
He reportedly had enough votes on the
Judiciary Committee to press the administration into at least answering
questions about the NSA programs, but apparently, some last minute
behind the scenes lobbying by Vice President Dick Cheney, unbeknownst to
Specter, altered the
outlook.
I am taking this unusual step in
writing to you to establish a public record. It is neither pleasant nor easy to
raise these issues with the Administration of my own party (emphasis
added), but I do so because of their importance.
Specter's letter continues:
The Administration's
obligation to provide sufficient information to the Judiciary Committee to allow
the Committee to perform its constitutional oversight is not satisfied by the
briefings to the Congressional Intelligence Committees. On that subject, it
should be noted that this Administration, as well as previous Administrations,
has failed to comply with the requirements of the National Security Act of 1947
to keep the House and Senate Intelligence Committees fully informed.
(emphasis added). In condemning past administrations as well, Specter leaves out that prior administrations did not expressly violate and in effect wholly repudiate sweeping national statutes, such as FISA, in the process.
The letter to the Vice President went on to address the telephone call database
issue, and Cheney's behind
the Scenes lobbying (which apparently left Specter none too happy):
When there were public disclosures
about the telephone companies turning over millions of customer records
involving allegedly billions of telephone calls, the Judiciary Committee
scheduled a hearing of the chief executive officers of the four telephone
companies involved. When some of the companies requested subpoenas so they would
not be volunteers, we responded that we would honor that request. Later, the
companies indicated that if the hearing were closed to the public, they would
not need subpoenas.
It's classified, but yet the telephone companies have the information as well?
It has been my hope that there could be an accommodation between Congress's
Article I authority on oversight and the President's constitutional authority
under Article II. There is no doubt that the NSA program violates the
Foreign Intelligence
Surveillance Act which sets forth the exclusive procedure for domestic
wiretaps which requires the approval of the FISA Court. It may be that the
President has inherent authority under Article II to trump that statute but the
President does not have a blank check and the determination on whether the
President has such Article II power calls for a balancing test which requires
knowing what the surveillance program constitutes. His analysis here stops well short of being correct. Article I authority on oversight, for example, is far deeper than the Senator implies, and extremely specific. Section 1 therein, states, in full, "All legislative Powers (emphasis added) herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." The President has no such authority under our Constitution to merely set aside laws in their entire application (in effect substituting for the Legislature under Article I), and has never, in our entire history. (This is also in stark contrast with opposition to the application of a particular law in a case specific, isolated instance, in very specific circumstances, for specific reasons -- and with a record for oversight and review -- as, for example, in the most extreme of circumstances, Lincoln did after the South had succeeded from the Nation, and as Clinton did to eventually search the residence of CIA agent Aldrich Ames, who was subsequently convicted of spying for the Soviet Union.) The implicit argument that the administration nevertheless does have such authority -- reducing Congress to an ultimate body of advisement, in essence turns the Constitution upside down on its head. Again, this is aptly illustrated in the link above, and in this December 17 piece by Glenn Greenwald, written the day after the NY Times officially broke the clandestine wiretap story. An article appearing the same day in the NY Times, nevertheless, put forth a veritable litany of circular logic in support of the program: "The President wants to use his 'full authority,'" the President has "authority under the "Executive Powers clause of Article II as 'Commander in Chief,'" "Congress authorized the action in its resolution of September 14, 2001, when it directed the use of all 'necessary and appropriate' force." These arguments are gone over in detail in the above links, and illustrate the degree to which by using vague terminology and rhetorical logic, almost anything can be argued and made to sound reasonable. The phrase "well, the President is just using his Presidential authority," for instance, can in effect become a catch all for the reality that "The executive branch can expressly violate the Constitution, and in effect do whatever it wants -- and keep it secret so there is never any basis for review with respect to what was actually done and for what purpose -- so long as it says that it was done in the interests of 'national security.'"
Consider the last and most substantive argument put forth above, as an example of the type of assertions that have been
offered in support:
"Congress authorized the action in its resolution of September 14, 2001, when it
directed the use of all 'necessary and appropriate' force." This argument has
been made repeatedly by the administration, and apart from some Op eds here and
there, has been put forth by the media as seemingly reasonable, even though it is
among the most basic of legal principles (if not outright common sense) that a
general provision, unless expressly so stating, does not authorize the violation
of specific prohibitions. In other words, a law that says "get this done,"
does not ever mean "by breaking preexisting law." As conservative
commentator George Will aptly
put it:
The next time a president asks Congress to pass
something akin to what Congress passed on Sept. 14, 2001 -- the Authorization
for Use of Military Force (AUMF) -- the resulting legislation might be longer
than Proust's "Remembrance of Things Past." Congress, remembering what is
happening today, might stipulate all the statutes and constitutional
understandings that it does not (emphasis in the original) intend the act
to repeal or supersede.
As if that wasn't enough, the administration has made this
claim -- and the media has again repeatedly and duly reported it as reasonable
-- that
the AUMF authorized this blanket disregard for the law as set forth under
FISA even though, again as noted, the
USA Patriot act, which
amended FISA, was passed (and signed into law by the President) after
the
AUMF, and which as amended
after the AUMF was passed and signed into law by the President expressly forbids the precise
activity which the administration nevertheless clandestinely authorized.
The notion that one of the three branches of our Government can claim power
unchecked by the [other two] branches is precisely what the Founders sought, first
and foremost, to preclude. And the fear that a U.S. President would attempt to
seize power unchecked by the law or by the other branches – i.e., that
the Executive would seize the powers of the British King – was the driving force
behind the clear and numerous constitutional limitations placed on Executive
power. It is these very limitations which the Bush Administration is claiming
that it has the power to disregard because the need for enhanced national
security in time of war vests the President with unchecked power. Yet that is exactly what the administration has done, and which Specter has been strangely ambivalent on, even while most of the rest of the rather far right wing current Congress has been relatively silent given the gravity of the Constitutional issue. At the same time, much of the mainstream media continually applauds attempts at "compromise" even though on the most basic principles of democracy, the term is virtually a non sequitur: Think of as akin to the right to vote. Say that the executive branch decided that anybody who disagreed with the Administration's policies was not allowed to vote, because this might help vote out of office those who would "correctly apply the Constitution to fully protect us and our national security." The media would report the issues this way: "The administration asserts this authority under the U.S. Constitution, meanwhile, some civil liberties groups and a few outspoken democrats and republicans, argue otherwise, and while their intent seems to be valid, they won't even compromise on the issue." The analogy seems extreme, but it is exact. The discretion to do "one thing" in the interest of "national security" is no more constitutionally valid, if it violates the separation of powers clauses of the Constitution, because it seems "reasonable" to some people, than the discretion to do "another thing" which seems (as in the above analogy) to be patently unreasonable on its face. The principles are identical. Yet the media somehow views the idea of checks and balances upon which our government was founded, as suddenly, in essence, a "flexible principle," and one that seeks "compromise." There is only one possible resolution. Either we have a system of checks and balances, or we don't. The executive branch either has the power to do what it wants with respect to protecting "national security" (similar to the powers of a monarch) or it doesn't, and must operate within the constraints set by the people of the United States through their elected officials, namely, Congress, and under the Constitution itself, including the Bill of Rights therein. Following Specter's letter, which was largely reported to have denoted a larger break with the administration than it actually did, the record, as Specter seemingly flip flops on the peripheral issues once again, becomes even more dangerously ambiguous. At the same time, leading media coverage on the issue continues to be poor. (Part II of this piece to follow).
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