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Friday, February 10, 2006

Online Constitutional Convention: State defenses against unchecked factions

State defenses against unchecked factions

There are some issues which Congress and the Executive are unwilling to face: Their combined refusal to assert power to check a wayward executive.

This outlines a framework for a Constitutional Convention to explore some options to compel Congress to act, despite the unfavorable weather.

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[ For your convenience, there is an NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]

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Ideally, the Constitution is an electric keeping the government at bay. Lately, the government has sought fit to disconnect the power, wrap the cables around the public, and then tell the public they have to give the government more power. One way of looking at this situation is like a malfunctioning circuit breaker -- Something failed, but the power is still going where it shouldn’t go.

The issue is what do local citizens need to discuss when the system of checks and balances breaks. The Federal government refuses to do so. It takes time to assess how this happened, then formulate a plan to fix the damage, and then prevent this from happening again.

The problems have been brewing since 2000. Today, factions approach the Constitution as if it were debatable. Those who do not disagree with the other view are denied access to the debate, the remaining are forced to assent an absurd reality, excluded if they do not agree with the absurdity.

For example, we have the lessons of three situations – reluctance over the Patriot Act; nonsense data in Iran; and lies over WMD in Iraq. Ideally, this would be the end of the debate. Yet, Congress goes along with the planned attacks on Iran. Ideally, something should interrupt this and say, “Wait a minute, this is happening again. Time out.”

The recurring pattern is:

  • Despite no evidence, the nation commits war crimes

  • Despite abysmal results, the failed planning continues

  • Despite no resources, plans are executed at odds with prudence

  • Despite no fact, the leadership spews for propaganda despite the Smith Act.

    Yes, Congress has 535 members. But it’s not a lifeless place devoid of memory. The statutes are the reminders. Yes, despite this corporate history, it seems as if there is no catalyst to ensure people – Congress as a whole -- assert the Article 1 Section 8 powers to check the President. It’s as if there’s no mechanism, debate, or solution. Bluntly, there needs to be a mechanism – above and beyond statute and oaths – that compels the Congress to assert power. Clearly, legislative immunity and political parties have sent the wrong signal: That despite Executive violations, the Congress can enjoy its restful coma.

    The Congress needs to beat the Executive branch back where it belongs – on the other side of Article 1 Section 8, and out of the business of Congress. Despite these self-evident encroachments, Congress has assented to these violations. The issue going forward is: Why does Congress assent; what is a remedy; and how are we doing to ensure this nipped in the bud; and what is to be done now to fix this.

    The State proclamations on impeachment may awaken Congress. Perhaps there will be a debate to explore what is getting in the way; and why Congress is reluctant to check the executive; and how will this Congressional check be asserted, maintained, and strengthened. What the Constitution says doesn’t ebb and flow with the political tide. The States are there to assert power when Congress fails.

    It remains to be understood how the Congressional organization, committees, and annual budgeting cycle interfere with this needed Congressional focus on the Executive; and where the Congressional lawyers are to assert, maintain, and apply the lessons of 2000 to 2006.

    The law should be there as a guide to provide clarity, guidance, and lessons learned. It is unclear why this body of knowledge is not asserted; or what is to be done when congress faces a mobilized Executive, uninterested in compliance.

    It remains to be understood why these Congressional lessons – the public statutes – are not asserted and enforced; why the violations are not challenged; and how Congressional authority and assertiveness will get support when the Executive and the entourage choose to defy the law.

    Congress makes rules on captures, facilities, and US people; so it remains unclear why innocent people are held in violation of the law, and rendered to Eastern Europe.

    There should be a mechanism to not simply investigate, but ensure these Executive encroachments face swift rebuke and sanction. This Congress has the power, authority, and statutes to assert and enforce, but chooses not to. The states need to understand what this Congressional inaction does to undermine the system promised under Article IV Section 4.

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    Congressman Hinchey at Cornell: Click [ No Checks, No Balances, No Problems: President Bush's Assault on the U.S. Constitution Click ]

    What is to be done when a lawful inquiry yields no Executive response? [ Click; Exclusive Conyers memo, follow-up to Hinchey-Waxman-Conyers Nov 2005 memo: Click ]

    Why should Congress feel "obligated to cooperate with the Executive on up or down votes" as long as the Executive refuses to respond to Congress? [ Click ]

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    What seems odd is the assertion – and Congressional acceptance – that the statutes do not apply; and that the law is to be negotiated away as a defense lawyer might whittle away at a legal argument. But these aren’t subjects of debate: They are the framework of the society. This leadership asserts a private right to move above the law; then a public right to remain above oversight. This should be an offense against the Constitution, with a credible sanction for failing to apply the law and follow it.

    There is something puzzling with legislative immunity and how its relates to the oath of office. It seems some in Congress look at their oath as a “best effort” as if it were subject to the business judgment rule; but self-evident abuses – and Congressional inaction – leave one to question their judgment. Putting aside the legislative immunity doctrine, hen Congress fails to assert its power, can the inaction be subject to some sort of rebuke above and beyond possibly losing office.

    What if there were rotating justices who oversaw the Congressional and Executive policy making – acting as a referee during the incubation, not well after the Frankenstinian army has decimated the nation’s budget and rule of law.

    It’s the job of Congress to check executive power. It’s troubling when the Congressional research service is targeted for saying what is self-evident; Congress fails to check the President. That is not partisan attack, but a defect of the executive.

    There needs to be a discussion on how to

  • bolster Congress,
  • reduce the deference to the Executive,
  • assert the Congressional powers,
  • force the executive to comply,
  • refuse to back down to the Executive non-sense,
  • ensure the existing statutes and Constitution are asserted, not explained away, and
  • ignore the Executive’s phony “precedents.”

    The way forward is to ensure Congress has the entrenched tools needed to assert its duties and obligations; and check Executive power:

  • Tools to challenge the Executive non-sense
  • Methods to sift through the Executive fabrications
  • Methods to get other views
  • Disregard arbitrary timelines
  • Slow down the process during fabricated timelines
  • Sift through the bogus-information-overload as we got with Iraq WMD.

    What seems unusual is that despite clear statutes – the hear where lessons learned are archived – Congress doesn’t rely on these statutes, nor recognize their weaknesses in charting a way forward. Rather, the executive asserts his agenda without regard to whether Congress is or is not doing what must be done to oversee that process.

    Let’s consider the general imbalance in terms of personnel. The President has about 13 major cabinet positions, and millions of people working for him. The Congress has 535 positions, and a far smaller staff. Why the imbalance; and how the staffing disparity might be remedied to ensure that the relative power balance between the congress and Executive is better balanced, not assumed.

    It’s troubling when the Executive officers threaten the Congress – if the laws are enforced there is a threat of retaliation. That should be discussed and called what it is: A threat to dissuade congress from asserting Article 1 Section 8 powers. That should be unconstitutional. It is curious the Executive branch threatens Congress if the laws are enforced – supposedly the executive is there to enforce the law, not act like a mobster to get others to do the opposite.

    The issue is how to tip the balance so that the Congress no longer defers to the executive, and when there are issues of war crimes and abuses, this misconduct is looked at carefully, not given a rubber stamp or hidden behind many layers of lawyers.

    It’s curious that despite the laws, this nation elects representatives who assent to this tyranny. The states need to understand what options exist or should be created so that should this happen again there are tools ready to protect the state, not bind the state to assent to greater levels of barbarism.

    The issue is what is to be done to discipline the wayward executive, compliant employees, and Congress that assents to the lawlessness.

    What is to be done when the nation is mobilized on the basis of non-sense information, and continues to violate the laws of war? How will this be tamed? The US is telling the world – in the absence of self-restraint – the only forum Americans will resolve an issue is the battlefield.

    The media is neutral – or should be, yet what is to be done when it is a tool of the faction, and becomes a mouth piece of those asserting the right and power to violate the law. The government asserts it has the right and power to spew forth domestic propaganda in violation of the Smith Act; but where is Congress – speaking with a single voice, as it should be, without deference to the Executive’s faction -- in challenging the Executive with a campaign for the constitution?

    Congress should have an ability to combine itself when it faces what is self-evident – a tyrant. To check tyranny, Congress must be afforded the power to act in a tyrannical manner toward that tyrant. There should be a system by which the court recognizes the Executive will not be tamed, and the Congress is no longer obligated to act as two divided powers. When the tyrant is tamed, then the Congress should retreat to their separate Houses.

    It is unclear what is getting in the way of lawful enforcement of the rules against war crimes, abuses, and lies to congress. There are clear laws. There’s nothing stopping an investigation. But the misconduct continues. Statutes are there to be enforced, regardless the political party. This conduct is not acceptable: The retaliation against those who speak the truth. The issue is how to get the states involved, discussing the issue, and weighing in on the debate which Congress refuses to have.

    What is to be done when the DoJ and US Attorneys are part of the President’s rebellion against the Constitution? Whose job is it to review, collect evidence when the Executive and Congress assent to this long list of abuse. Perhaps it is the job of the people to step in and force the Congress to do its job – even when the abuses and targets of that abuse are still unknown. There does not have to be a victim – there only has to be a pattern of conduct by the Congress and Executive that they refuse to assent to and enforce the law.

    The issue is simple: What happens – what should the remedy be – when there is no action on that abuse and a congress fails to sanction DoJ and the personnel who assent to that lawlessness and abuse. The crime isn’t simply the abuse, but the knowledge of that crime and failing to report that information to the other branches. The statutes are clear – the willingness to assent to those statutes is in question.

    Congressional ethics appear to be rules of discretion, not of performance or expectation. If there are ethics standards that should apply to ensure Congress enforces the law and sanctions the Executive – then so be it; but if legislative immunity means that these standards of conduct are never enforced, then call it what it is: A sham oversight system within Congress that provides no assurances to prevent in the future what we have today: Fascism.

    What’s needed is a review of the conduct between 2000 and 2006. The conduct and abuse isn’t isolated to the NSA. Rather, it’s a system of failed oversight we saw in Iraq and the WMD issues; the Eastern European rendition issues; and the war crimes in Guantanamo and Iraq.

    The issue is what is to be done to shut off this blind deference to the executive by both the Judiciary and Congress.

    How do we get Congress to assert Article 1 Section 8 powers against the President?

    Should legislative immunity be limited when it can be shown Congress has failed to check the president; or the Congressional delegation has not asserted their duties to oversee and check the President.

    If there is immunity to sanction, then there is no credible mechanism to ensure that the Congress does or does not assert its powers against the Executive.

    The Constitution already addresses the imbalances. The issue is what will make Congress do what must be done, without leaving it up to the voters to figure it out. Congress needs to be held to standards of performance that apply regardless the weather, party, or crisis – real or imagined.

    Congress has half-heartedly reviewed the American war crimes in Iraq – the original invasion is devoid of any imminent threat. Some in Congress attempted to stop the war; yet where is the follow up to find out if there has been fraud committed on the court.

    When there is an illegal war, how do we get Congress to shut off funding? Just because Congress is doing something it doesn’t make it legal; just because there has been no decision to stop funding doesn’t mean that the Congress assents to the conduct, nor is the Conduct permissible. We’ve had an illegal war in Iraq since 2002 – and four years later, the money still flows. On the surface of it, Congress points to legislative immunity; but where is the accountability for funding operations that are unlawful. Again, if there is immunity for supporting war crimes, them what real check is there on the Executive or congress when we have what we have: War crimes, and funding for that crime activity?

    What’s needed is a carefully review of the events between 2000 and 2006 to understand what failed, what was permitted, and what changes are needed. It is curious that calls for Congressional reforms, or methods to assert Congressional power against the President are seen as Partisan. These are merely issues of the Constitutional powers. The imbalance is between the Executive and Congress, not between parties. It may be debatable whether there is leadership to resolve this problem; but it is not debatable that the imbalance is not one either the Congress or Executive are willing to wrestle with on their own.

    There are a few anecdotes that warrant review and understanding:

  • The patriot act was written and NSA was engaged in unlawful monitoring before 9-11

  • There is non-sense information from the Executive about WMD

  • We’ve seen violations of the law, insufficient information, rubber stamping, and rules mandating action without sufficient review of factual evidence.

  • We need a better method to investigation and sanction misconduct

    How do we make consequences if the laws and powers are not asserted, or the statutes are not enforced? The idea of committees is to assign experts to oversight, not rubber stamps.

    It is a shame America has to know the statutes, laws, facts, and issues better than leadership – to know when the laws are ignored. There should be a way to quickly translate that awareness into a better electric fence to keep the executive at bay, not provide the Executive with a cattle prod to keep the oversight away.

    It is clear Congress is not working as it should. The way forward is to discuss the self-evident problem and create a system within congress that will compel it to do what must be done, even when it is inconvenient, or the majority party enjoys ignoring the laws of war and the Constitution.

    Factions were not intended to destroy the constitution. They were designed to compete as a check on power, while leaving the Constitution well protected behind a well locked gate. This crew has opened the gate, misused the power, and failed to preserve, protect, and defend the document.

    They’ve failed in their oaths-- there are in sufficient mechanisms and sanctions for having failed; and great rewards for having celebrated the violations of the law. Those mechanisms need to be repaired and strengthened; and the rewards removed and neutralized. Any other debate is simply a diversion from the self-evident problems the face state: Unchecked factions which put their party and self-interests before the rule of law and the safety and security of the states.

    There is a collective security doctrine for the states. It is called a constitutional convention. When the Congress and Executive agree to jointly ignore the Constitution, the states can meet to remedy what is a clear and present danger. It is time to formulate an agenda for such a Constitutional Convention. The Congress and Executive needs to know that the states view the situation as serious, and one that commands attention not acquiescence.

    It remains to be understood what remedies there might be, but given the clear problem it should be welcome news to the world that the needed debates we never had in the wake of 9-11 and on the eve of the Iraq invasion are now occurring, even if Congress and the president choose to not participate or pretend the problem does not exist.

    There should be a discussion at the Constitutional Convention of what to do when a President and Congress have joined in rebellion against the Constitution. What is to be done when other states keep electing threats to the Constitution and vote to violate the laws, not sanction abuse, or do anything to ensure Congress asserts its power against he Executive? Yes, voters have the ultimate choice: But they cannot choose to defy the Constitution. The problem is the voters have been convinced to support the Congress and President in their unlawful rebellion against the Constitution.

    The issue before us is what is to be done and what remedies are needed that can lawfully be imposed to tip the balance when neither congress nor the Executive are willing to do that. Perhaps the states should have a mechanism to go before the courts and bring this dispute to mandate that the court oversee the imbalance, and compel the Congress to do something. Yet, the law as written provides immunity for Congress. There must be a way to get the Congress to do what must be done, as opposed to waiting every two years for them to get annoyed by the alarm clock, only to snooze off as the Executive continues to burn the Constitution.

    The states need to have a method to find out whether Congress has to competence or inclinations to do what is should; and whether the committee assignments are going to non-experts. The states should be able to do something when the Congress refuses to assert power, and the Congress fails to stop the President from violating the law or waging unlawful war.

    This is not their money. This is the money of the people. This Congress and Executive have squandered the nations’ resources, failed to gather facts, rubber stamped legislation, and have done so despite repeated notifications that the war is not lawful. One cannot look at this issue simply as whether you are for or against the troops. Rather, it is whether you are for or against prudent policy at its inception. The States need to discuss this issue and formulate a plan; then report any roadblocks or “friendly advice” they are given to dissuade them from meeting at a lawful Constitutional Convention.

    Congress has failed. And the Executive shows no inclination to exercise self-restraint. The courts simply wait for someone to show up with the facts. But this Congress and Executive are not interested in facts.

    The states need to explore their options and devise a credible system to contain and restrain this power. Congress is unwilling, and the Executive has no interest. It is up to the States to do what Congress and the Executive have sworn an oath to do, but have self evidently failed to achieve – Preserve, protect, and defend this Constitution from the domestic enemies in Congress and the Executive Branch.

    Begin your discussions on the agenda for this Constitutional Convention, and outline the questions and issues you are wrestling with. At this juncture, we’re not looking for definitive problem statements, merely a view of what the nature of this problem is; how it can be best summarized; and then we’ll go from there. We may have no notion of what the lawful solutions should be at this point. The point is to simply engage in a debate and discussion on matters this Congress and Executive refuse to address. The way forward starts with where we are. Congress and the Executive appear incapable of doing simply that.

    Not to worry, this can be done. Just be willing to admit you’re not sure. Someone else may have an idea or suggestion. We can figure this out. Good luck and don’t hold back. Call this what it is: A Constitutional Convention, but in the blogosphere.

    Possible memes:
    Online Constitutional Convention

    Suggested Reading

    The problems the States need to address: Congressional failure, Executive Tyranny [ Click ]

    What is getting in the way of Congress asserting its oath [ Click ]

    How many anecdotes do we need to say what is self-evident: There are oaths, and there a loafs [ Click ]

    Presidential rebellions: How can they cite inherent authority from a document they do not recognize? [ Click ]

    Congressional oversight: The Senate had the chance to debate, so why is it afraid of doing what must be done? [ Click ]

    A Constitutional Convention: The voters know there is a problem -- it's with the Federal Government [ Click ]

    Identifying the problem: What checks and balances is and isn't; and how do we stand relative to that criteria [ Click ]

    Even when it goes really bad, the Congress accepts the absurd excuses [ Click ]

    How upside down things get when Congress fails to tame an Executive [ Click ]

    Some thoughts one what a solution would encompass [ Click ]

    Executive Wake Up Calls: Magna Carta and The Constitution; how about a third one. [ Cick ]

    War crimes: Where were the circuit breakers? [ Click ]

    Calling the system what it really isn't: Not what we though we were fighting for in Iraq [ Click ]

    America: We have a constitution, but why does it seem like lawlessness? [ Click ]

    Unlawful domestic surveillance programs: Well entrenched, where was the oversight? [ Click ]

    Decision maker information problems [ Click ]

    Factions go after the truth Sayers: Case Study of Senator Durbin [ Click ]

    Committee assignment problems: What can be done to get factions to focus on their constitutional duties [ Click ]

    Congress has a staff of inspectors: What needs to be done to credibly assert Congressional power and oversee the Executive Branch [ Click ]

    If a faction is too powerful, should Congress be blamed for inaction and reformed; or should the faction be outlawed to avoid Congress having to admit it cannot assert power? [ Click ]