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Title: THE WASHINGTON TIMES: George W. Bush - "Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand"
Source:
The Washington Times
URL Source: http://washingtontimes.com/commentary/20051227-092503-6702r.htm
Published: Dec 31, 2005
Author: By Bruce Fein
Post Date: 2005-12-31 16:15:55 by Uncle Bill
Keywords: impeachable, usurpations, WASHINGTON
Views: 209
Comments: 17
The Washington Times President Bush secretly ordered the National Security Agency (NSA) to eavesdrop on the international communications of U.S. citizens in violation of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA) in the aftermath of the September 11, 2001, abominations. The eavesdropping continued for four years, long after fears of imminent September 11 repetitions had lapsed, before the disclosure by the New York Times this month. Mr. Bush has continued the NSA spying without congressional authorization or ratification of the earlier interceptions. (In sharp contrast, Abraham Lincoln obtained congressional ratification for the emergency measures taken in the wake of Fort Sumter, including suspending the writ of habeas corpus). Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator. Claims to inherent authority to break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II, for example, have not been ruled out if the commander in chief believes the measures would help defeat al Qaeda or sister terrorist threats. Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself." The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war: "The president is to be commander in chief of the Army and Navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to declaring war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature." President Bush's claim of inherent authority to flout congressional limitations in warring against international terrorism thus stumbles on the original meaning of the commander in chief provision in Article II, section 2. The claim is not established by the fact that many of Mr. Bush's predecessors have made comparable assertions. In Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court rejected President Truman's claim of inherent power to seize a steel mill to settle a labor dispute during the Korean War in reliance on previous seizures of private businesses by other presidents. Writing for a 6-3 majority, Justice Hugo Black amplified: "But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in the Constitution in the Government of the United States." Indeed, no unconstitutional usurpation is saved by longevity. For 50 years, Congress claimed power to thwart executive decisions through "legislative vetoes." The Supreme Court, nevertheless, held the practice void in Immigration and Naturalization Service v. Chadha (1983). Approximately 200 laws were set aside. Similarly, the high court declared in Erie Railroad v. Tompkins (1938) that federal courts for a century since Swift v. Tyson (1842) had unconstitutionally exceeded their adjudicative powers in fashioning a federal common law to decide disputes between citizens of different states. President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "[T]he president, through the attorney general, may authorize electronic surveillance without a court order... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress." A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution. As Youngstown Sheet & Tube instructs, the war powers of the president are at their nadir where, as with the NSA eavesdropping, he acts contrary to a federal statute. Further, that case invalidated a seizure of private property (with just compensation) a vastly less troublesome invasion of civil liberties than the NSA's indefinite interception of international conversations on Mr. Bush's say so alone. Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency. Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. "This nation sits at a crossroads. One direction points to the higher road of the rule of law. Sometimes hard, sometimes unpleasant, this path relies on truth, justice and the rigorous application of the principle that no man is above the law. Now, the other road is the path of least resistance. This is where we start making exceptions to our laws based on poll numbers and spin control. This is when we pitch the law completely overboard when the mood fits us, when we ignore the facts in order to cover up the truth. No man is above the law, and no man is below the law. That's the principle that we all hold very dear in this country." "I suggest impeachment is like beauty: apparently in the eye of the beholder. But I hold a different view. And it's not a vengeful one, it's not vindictive, and it's not craven. It's just a concern for the Constitution and a high respect for the rule of law. ... as a lawyer and a legislator for most of my very long life, I have a particular reverence for our legal system. It protects the innocent, it punishes the guilty, it defends the powerless, it guards freedom, it summons the noblest instincts of the human spirit. The rule of law protects you and it protects me from the midnight fire on our roof or the 3 a.m. knock on our door." "What is on trial here is the truth and the rule of law. Our failure to bring President Clinton to account for his lying under oath and preventing the courts from administering equal justice under law, will cause a cancer to be present in our society for generations. I want those parents who ask me the questions, to be able to tell their children that even if you are president of the United States, if you lie when sworn "to tell the truth, the whole truth and nothing but the truth," you will face the consequences of that action, even when you don't accept the responsibility for them." "There can be no shading of right and wrong. The complicated currents that have coursed through this impeachment process are many. But after stripping away the underbrush of legal technicalities and nuance, I find that the President abused his sacred power by lying and obstructing justice. How can parents instill values and morality in their children? How can educators teach our children? How can the rule of law for every American be applied equally if we have two standards of justice in America--one for the powerful and the other for the rest of us?" "I will have no part in the creation of a constitutional double-standard to benefit the President. He is not above the law. If an ordinary citizen committed these crimes, he would go to jail." "When someone is elected president, they receive the greatest gift possible from the American people, their trust. To violate that trust is to raise questions about fitness for office. My constituents often remind me that if anyone else in a position of authority -- for example, a business executive, a military officer of a professional educator -- had acted as the evidence indicates the president did, their career would be over. The rules under which President Nixon would have been tried for impeachment had he not resigned contain this statement: "The office of the president is such that it calls for a higher level of conduct than the average citizen in the United States."
. . . or outside the law?
By Bruce Fein
December 28, 2005
Tom Delay, Speaker of the House Rep.(R-TX)
Rep. Henry Hyde (R-Ill.)
Rep. James Sensebrenner (R-WI)
Senator Chuck Hagel (R-NE)
Bill Frist, Senate Majority Leader, (R-TN)
Rep. Lamar Smith (R-Texas)
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#1. To: OKCSubmariner, christine, robin, Zipporah, rowdee, JHoffa_, aristeides, Red Jones, BTP Holdings, Jethro Tull, mehitable, Itisa1mosttoolate, timetobuildaboat, Arator (#0)
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#2. To: Uncle Bill (#1)
Bush wishes for peace abroad, prosperity at home Peace and prosperity. It's a well-worn New Year's resolution, but that's what President George W. Bush is wishing for 2006. "The president's New Year's resolution is to continue to work tirelessly for peace abroad and prosperity at home," White House spokesman Trent Duffy said Saturday. Bush and his wife, Laura, and her mother, Jenna Welch, will be dining at the Bush ranch here, but it's unclear whether they'll stay up long enough to ring in 2006. (AP) (12.31.05, 22:35)
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