Monday, August 28, 2006

Keep Your Goddamn Religion Out of My Government

"If you are not electing Christians, tried and true, under public scrutiny and pressure, if you're not electing Christians then in essence you are going to legislate sin."

-- Florida Representative and current Senate candidate Katherine Harris. Full article here.

Sunday, August 27, 2006

ABA Task Force Slams Presidential Signing Statements

The American Bar Association is the largest association of lawyers in the nation, responsible for everything from law school accreditation to model legal codes, and on July 24, they released a report unrelentingly attacking the use of Presidential “signing statements” to distort the law. At the national meeting on August 8, the ABA officially adopted the report as policy. That’s right: the body of lawyers responsible for setting professional standards across the nation officially discredited the administration’s legal theories.

The signing statement, now notorious thanks to more than 800 uses by Bush II in the course of his five and a half years as President, is a more versatile version of the line-item veto, a practice held by the Supreme Court in 1998 to be an unconstitutional invasion of Congressional lawmaking power. The President is now claiming the power to decline to enforce portions of laws which he deems unconstitutional.

The use of signing statements in this way makes the President a legislative agent, capable of amending laws after they have already passed Congress and been signed into law by the President himself. Minor civics review: making law is Congress’ job, not the President’s. The President gets to sign or veto the bill, and once it becomes law he’s in charge making sure that the law is carried out. Now, though, Bush is claiming that he doesn’t have to carry out unconstitutional laws, even if he just finished signing them with his own hand!

By signing laws and then refusing to enforce them, Bush is not only derelict in his constitutional duty to enforce the law but also stealing the power of Congress, which is responsible for deciding what laws should and shouldn’t be made. What happens if the rest of us, including the entire Congress and the Supreme Court, think he’s wrong in his interpretation? Not jack.

That’s right, the President is not only changing the law passed by Congress, he’s claiming full-fledged and independent authority to declare duly enacted laws to be unconstitutional, completely bypassing the Supreme Court. The President claims the authority to unilaterally suspend enforcement of laws he deems unconstitutional, without any judicial review. Further, he asserts that because these determinations are part of his Constitutional role as President, the Court cannot review them. No wonder he’s only had to use his veto once since he was elected!

The principle that the executive, legislative, and judicial functions should remain separate is one of the cornerstones of American government. In the earliest days of the nation, James Madison said that the accumulation of all three in the hands of a single individual was “the very definition of tyranny.” The President, by using signing statements in this way, has appropriated to the executive branch portions of both Congress’ legislative power and the Supreme Court’s judicial power.

The theory of Presidential power backing the use of signing statements has such far-reaching implications it has been used as the administration’s defense in everything from the Abu Ghraib torture scandal to the current wave of NSA Wiregate trials, but the Task Force is very careful to emphasize that this is not a crusade against George W. Bush. Though he is the worst abuser, Clinton, Bush I, and Reagan all used signing statements in this way.

Several of the Justices on the Supreme Court, including both of Bush’s recent appointees, have been quite willing to give away Congressional power to the executive. Their authoritarian stances may falter, however, when the time comes to support the President at the expense of their own power. This stance will be challenged, likely as part of the Wiregate trials, and with its own neck on the line, the Court might just do the right thing.

Tuesday, August 22, 2006

Thursday’s Wiregate Ruling Will Matter Only in the Arena of Public Opinion

The first wave of lower court rulings in the Wiregate scandals has just begun to break against the steadily eroding edifice of the Bush presidency. Last Thursday, a Federal judge in the Eastern District of Michigan ruled the President’s constitutional authority insufficient to support one of the illegal NSA wiretapping programs. The case, ACLU v. NSA, concerns unsanctioned government monitoring of phone calls between people in the United States and those outside if one party is “reasonably suspected” to be affiliated with Al Qaeda in any way. No authorization of any kind is required or even sought from anyone other than the President himself. There is no review of the program’s legitimacy or effectiveness by anyone other than the President himself.

The President’s lawyers at the Office of Legal Counsel have argued in this case and others like it that the Executive has independent constitutional authority to do pretty much whatever the hell he wants when acting as Commander-in-Chief. Use of surveillance is an incident of war, they say, and since we are in the midst of a War on Terror® declared by Congress via the Authorization for the Use of Military Force in the wake of 9/11, the government is free to surveil. The White House is also asserting the state secrets privilege in this case, which would bar the matter from judicial scrutiny altogether. Bush is not only arguing that he doesn’t have to stop, he’s arguing that the courts can’t even say whether it’s legal!

John Yoo, an influential legal scholar and one of the primary architects of this framework, argued in public less than a year ago not only that the President has the power to order a suspect watch his or her child being tortured (including crushing his testicles) in order to make the suspect talk, but also that this power is so deeply rooted in the constitution that Congress cannot pass a law forbidding it. This kind of dictatorial barbarism is ludicrous, but even the President’s own lawyers concede that it is the logical extension of the very same theory of executive power they advance in defense of simple surveillance powers.

The array of laws violated by the program is rather impressive; the judge held the scheme to be contrary to the First and Fourth Amendments, statutory wiretapping laws like FISA, and the “Separation of Powers principle” which states that Congress makes the law and the President carries it out. The judge felt that nearly all of the claims could be supported on the basis of information already made public but, interestingly, sustained the national security objection with regard to the count of datamining.

Judge Taylor’s opinion is grandiose and palpably annoyed with this abuse of Presidential power, but the effect of her words will probably be quite small. The fact is that this case is headed for the Supreme Court, and Taylor’s oratory will have little effect there. Indeed, the case itself is not even the most important one of its kind trickling through the courts.

The real bombshell in this line of cases is going to be Hepting v. AT&T, which was filed by an irate customer with the backing of the Electronic Frontier Foundation. Not long after The New York Times broke the story about international calls being tapped, an AT&T employee by the name of Mark Klein came forward with testimony about datamining equipment being installed in AT&T facilities by NSA personnel. The EFF is accusing the Bush administration of tracking every phone call that crosses U.S. communications lines, including personal calls between citizens of America not even suspected of illicit activity.

This case is going forward also, but slowly. Most recently, the judge in the case ordered a public trial, rejecting the government’s requests for a secret trial on the basis of (you guessed it) national security. The wisdom of the courts has thus far held, but the ultimate decision of an increasingly executive-friendly Supreme Court is the only one that matters. The lower court decisions serve merely to keep the public aware of the controversy and foster discussion about what an unrepentant autocrat we elected.