Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, March 20, 2006

New Constitution: Congress shall not validate unlawful conduct

The planning for and drafting of the New United States Constitution continues. We are fortunate to have many examples which mirror the defective Articles of Confederation.

We encourage others to note the similarities between today's problems with that of the Confederation.

Rather than look at the abuses as signs of problems, look at them as well placed gifts: Anecdotes to justify new language in the New Constitution.

[There is a New Constitution Archive: [ Click ]

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Today's Topic: Validation, Retroactive ratification fallacy in re FISA and NSA.

It's interesting to review the legal arguments Congress and the White House are using to justify inaction over Presidential crimes.

A careful analysis of their arguments helps formulate language for the New Constitution. The goal of the Constitution isn't to create legal loopholes to justify and permit the abuse of power; rather it is to close the loop and protect rights.

The Constitution is not the playfield of ghosts to find loose chains to rattle; the goal is to ensure the ghosts of tyranny remain exorcised.

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There are a couple of important points. First, we're not clear what the President has actually done; ratifying that conduct is premature.

Second, the scope of the abuses is larger. Ratification at this point will ratify many things, and not give Congress any option later. The White House will likely argue -- hypocritically -- "once Congress does something they can't change it." If only that argument were applied to the White House.

Third, you'll notice the standards the White House is using to say "it should or should not be held to a given standard" are at odds with all arguments they've given to not apply those same standards at Guantanamo. The President asserts he has the right to a fair trial using evidence; but denies this right to others afforded that right; the Congress asserts they have an oath to protect the Constitution, never mind their conduct is in rebellion against the same.

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Once case to keep in mind is 312 U.S. 100:
From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.

This is another way of saying in re NSA-FISA, the issue is whether:

A. Is there a power to do this: No, executive was not granted power to violate the law;

B. Is the power appropriate: Not if it abuses power, or violates rights;

C. Is the end permitted: Not if the end -- warrantless surveillance -- has been prohibited;

D. Does the conduct relate to a power or a ministerial act: NSA-FISA related to a ministerial act, and the issue of "power" is a red herring; and

E. Are the means lawful and consistent with the Constitution: In the NSA situation, no.

It doesn't matter what their intent was, or that they wanted to do something "good." Rather, we need only look at the law, and the result of their conduct: Did the conduct violate or not violate the law. Further, it is irrelevant what their reasons are, or how many people can be convinced to focus on other factors.

The issue is simple: The Federal Government is unwilling -- and incapable -- of ensuring that the White House and Congress do not do what they are doing: Self-delegating powers to ratify unconstitutional conduct.


What this means is that one cannot simply look at the outcome of the action in isolation to many other factors. Congress is not in the position -- nor has it been delegated the authority -- to inter alia:

1. Review a matter and pass laws; while at the same time
2. Review the legality of that law; then thirdly
3. Decide whether conduct is or is not in violation of that law.

The problem isn't that the NSA conduct did or didn't violate the law; rather Congress and the Executive have self-delegated powers they were not expressly delegated: The power of judicial review.

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Putting aside prudence, Congress has proposed saying the Presidents unlawful conduct shall not be prosecuted.

300 U.S. 297 is getting kicked around as an excuse to not impeach the President.

This is a flawed legal argument, and should be rejected. There are three broad indications of problems with the cited case, all supporting the conclusions that there is non-sense going on.

A. Wordplay Test It is a flaw to confuse the terms "not authorized" or "unauthorized" with "illegal." In the FISA situation Congress expressly stated that the conduct was illegal; this is far different than Congress failing to state whether the conduct was or was not authorized. There is a difference between invalidating an outcome; and finding conduct violated the law. Authorizing something that was not expressly prohibited, or beyond their power is not the same thing as validating something that is illegal. One is a stretch, the other is absurdity.

B. Relevance Test The case provides no supporting language for the Congress and White House assertion. It is a flaw to apply a rule from a case that is unrelated to the matter at hand. This is the recurring problem of the White House and Congress. All the more reason to have the case brought before the court; not a foundation to say the court should not have jurisdiction.

C. Separation of powers test This is the most important. Judicial review cannot be denied by Congressional ratification of unlawful conduct. This puts Congress in the role of asserting the power of all three branches: Passing the law [Legislative], vetoing the law [Executive], and finding the violation did or did not occur/striking down the law [Judicial].

Note the case above is just that -- a legal case before the court; Congress and the White House would have us believe they can exercise the judicial functions, in their agreement to assent to unlawful conduct. This is contrary to the separation of powers.

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The problem with relying on this case is that it actually undermines the Congress and President's proposed plan: Retroactively legalize what was illegal, or "ratify."

However, this is a simplistic conclusion: Ratification cannot spring from Congressional assent; rather, the ratification must be linked with something that is otherwise permissible. Look at the last three words in this quote from the cited case:
It is well settled that Congress may, by enactment not otherwise inappropriate, 'ratify * * * acts which it [300 U.S. 297 , 302] might have authorized

In the FISA-NSA situation, the cited case law actually contradicts the White House Congressional argument, namely FISA would not have authorized; in the FISA-NSA situation, Congress already said the conduct was not authorized.

Thus, relying on this case is merely a sign that the Congress and White House are relying on -- and agreeing to rely on -- non-sense.

The more troubling fact is that it's not challenged.

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The case is also flawed as legal foundation is that it has other language which complicates the Congressional defense of retroactive legalization of illegal activity:
The mere fact that the validation is retroactive in its operation is not enough, in the circumstances of this case, to render it ineffective.
Namely, Congressional validation is insufficient to render FISA ineffective in regulating what the President should have done. In other words, if the validation were permitted to stand, the validation would amount to Congress striking down a law without judicial review -- namely invoking a veto after the illegal conduct occurred.

Yes, if you think this is a mess you're right: Congress and the President are in rebellion against the Constitution.

The way forward is to call the Congress on its bluff and begin with all due speed drafting a new Constitution that explicitly imposes meaningful sanctions on Members of Congress for asserting this non-sense.

Namely, stripping them of their legislative immunity when they are in rebellion against the Constitution; and engage in conduct which asserts powers they were not delegated:
  • Validation of illegal activity;
  • judicial review;
  • statutory veto; or
  • strike down statutes at odds with desired enforcement.

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    The New Constitution needs to include three major themes:

  • 1. Language that puts persona liability on members of Congress when they attempt to validate Executive war crimes or other civil abuses;

  • 2. Expressly forbids validation of illegal activity

  • 3. Expressly forbids Congress from exercising judicial review; asserting any power to veto a statute; or strike down statutes for the purposes of not holding the Executive accountable for violations of his oath.

    * * *

    The New Constitution should include language to the effect:

  • A. Members of Congress shall be stripped of legislative immunity when they take action to validate Executive war crimes or other civil abuses;

  • B. Congress shall make no law that validates illegal activity;

  • C. Congress and Members of Congress may not exercise judicial review; assert any power to veto a statute; or strike down statutes for the purposes of not holding the Executive accountable for violations of his oath. Congressional efforts related to these objectives are not protected, are unconstitutional, and if asserted or attempted would strip the Member of Congress of legislative immunity.

  • D. Members of Congress who plan, discuss, or work with anyone else to engage in these activities -- listed at three [3] -- are in rebellion against the Constitution, The People, and the rule of law.

    * * *

    It is also a flaw to rely on non-legal arguments over issues that went the other way. Namely, it is curious but irrelevant that Madison may or may not have said something; or what basis a General may have "justified" action. The issue before us on the NSA-FISA issue is different: [a] What was the law; [b] what did the Constitution say about the ministerial v. power issue; and [c] what actually happened.

    Rather than find out [c], this Congress and White House are simply asserting that neither [a] or [b] apply. That's not an argument. That's legal bullshit. [ More legal irrelevancies are here Click]

    This line of argument would have us believe that any crimes the US commits on the battlefield -- so long as the US wins the war -- would legalize the war crimes. This misses the point: The purpose of law is to guide civilized behavior.

    This President and Congress have agreed to assent to uncivilized conduct; their ratification of that uncivilized behavior has no legal foundation, but is merely evidence they are uncivilized.

    That's called circular reasoning to justify war crimes and lawlessness. Same non-sense Hitler and his lawyers used when it came to the Holocaust. Yes, the Israelis were terrorists in the 1940s, but they came around; so lighten up on Hamas. The US likes to discuss in secret with the Taliban things it publicly denies.

    American once used terrorism at the Tea Party, now it does so again using the NSA. Then it was for freedom, now it is for tyranny.

    * * *

    The general principle is simple. What is going on is rather simple: Rather than focus on the specifics of the NSA conduct, the detractors-enablers are arguing that the general principles of power permit good intentions, regardless the outcomes, or statutes barring specific ministerial acts.

    In plain English: This means they're using red herrings -- getting you to focus on whether or not the "objective and intent" of the President was for a noble cause, and pretending he has the "power" to do things, all the while ignoring the facts: [a] we have no facts over what was or was not going on; and [b] issues of power are not the same as ministerial acts; and [c] it doesn't matter what excuse the President gives to "justify" what he was doing, the law specifically prohibited him from engaging in this type of behavior.

    The Congress has failed to justify confidence in the "no action" decision; rather, the Congressional decision to take no action has no legal foundation and is illegitimate assertion of non-delegated authority.

    Unless the Congress removes itself from this rebellion, the only way forward is to craft a new Constitution that expressly criminalizes what Congress is unlawfully doing: Asserting power it has not been delegated to assert.

    * * *

    Your turn

    Take a random blog and look for the legal arguments being used to justify inaction. Your goal is to create some summary rules which will bar this conduct; and compel Congress to act to protect the Constitution and prevent the abuses.

    Consider this: Click and consider the following questions:

  • If you were drafting a New Constitution, which explicit clauses in a new Constitution would you include that make it clear what Congress was or was not allowed to do;

  • Given our goal is to prevent the abuse of power and protect rights, which Congressional powers must be stripped to ensure they are not abused.

  • Which legal theories in these arguments -- however creative -- must be rejected as contrary to civilized society.

  • What type of legal arguments should members of Congress be barred from using to justify inaction in the face of conduct that violates the supreme law of the land?

  • What level of abuse, misconduct, and assent to volitions of their oaths -- as measured by policy and appropriations made on the basis of these legal arguments -- should a member of Congress know is not constitutional -- and would subject them to personal liability -- because they were explicitly told they did not have that power?

  • Given the sited case law, which powers is Congress asserting that were not delegated?

  • Is Congress creating new powers for itself -- and which explicit language must be included in the New Constitution to expressly bar this assent to abuse of power, violation of rights, and failure to assert their oath?

  • What meaningful sanctions should be included in the Constitution when Members of Congress assent to unlawful violation of rights, abuse of power, or other Executive conduct that is unconstitutional?

  • What types of reviews should Congress engage in -- on matters of constitutionality, consistency with the intent of the New Congress -- in advance of approving legislation; and how should Members of Congress be held personally liable for if they fail to review and pass legislation that supports war crimes, violations of rights, permits abusive power to broaden, or sanctions unlawful warfare?

  • What reporting responsibilities should Members of Congress have when they are aware of bills, statutes, appropriations, and conduct that is unlawful, permits unlawful conduct, or supports abuse of power and violation of rights; how should the state legislators be involved with these required reporting; to what extent can members of Congress be held liable for violations of their reporting requirements when they remain silent on matters which violate the Constitution, undermine rights, abuse power, or unlawfully assert powers not delegated?

    * * *


    The New Constitution needs to build on the legal nonsense we have today, call it what it is, and expressly tell Congress what personal liability they will face when they embrace this type of legal baloney.

    The cited cases and language are at odds with the stated objective of the article; and the legal objectives of the White House and Congress. It appears someone has been given a "really neat idea" on the premise that it is "a neat legal theory," but has actually been duped into embracing legal non-sense.

    If you want to use the link, use it as an example of the non-sense the RNC is spewing out and getting the world to embrace. The cited information at this link engages in tortured world play, and shows a poor understanding of the statues. [Click; another one is here Click ]

    It appears the legal non-sense of John Yoo is spreading. Remember, the troops already know their leaders are incompetent.

    Americans must rise to the challenge and assert a New Constitution that prohibits explicitly what this Congress and Executive actively support: Unlawful violations of the law.

    We will continue, and shall be relentless in asserting the rule of law on the lazy Congress and the defective American legal community. They have failed America. It remains to be seen who will commit honor, oaths, and lives to a New Constitution.