Constant's pations

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

Monday, April 03, 2006

Clear power, clear responsibilites, clear solutions

Boyle offered some thought-provoking comments. I share them with you, and also some other views.

Boyle's piece is at the end for your reference.

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Boyle provides an interesting view on power. He appeals to ambiguity. Lost in his discussion is the purpose of the Constitution: To delegate powers. Our role is to recognize Congress and the Executive are in rebellion against our Constitution, and that many like Boyle appeal to ambiguity as the pre-text for inaction. We need not avoid what is clear: We need a New Constitution to compel the leadership to do what they know, but refuse to do.

Boyle's arguments are flawed. The problem with the current DoJ and NSA is that they say so little. In this nexus, we’re asked to believe we can trust them.

Let’s consider the broad pattern of conduct: The statutes provide for various exceptions. However, these exceptions have been ignored, self-written to defy the law, and used to consolidate power.

The problem we have is when we are told the current operations are terror-related. We judge his is an overstatement. DoD and the White House have openly admitted they use black propaganda against Americans; and the NSA as a combat tool is pointed right at Americans. It’s not a leap to believe that all illegal operations are sold to contractors as anti-terror support activates.

The DoJ AG can also create new rules and exceptions. He’s allowed to write laws and direct protective services to do things without warrants. The issue is why we have no information on the programs which remain unclassified.

The answer isn’t to keep our head in the sand, nor is it to find ambiguity then exploit it; rather, the way forward is to close the loop on the exceptions to the laws and find out why they have not been closed earlier.

It is not clear that illegal activities will continue, nor is there any credible basis to assert that the program is lawful or merely anti-terror related. The burden is on the government, but they’ve provided no assurances. NSA IG can get shut down. Activities can get self-described as an exception. We’ve already seen that.

The issue is the rule of law. Presidents do not have the authority to violate the law. One cannot argue it serves a “higher purpose” to bury our head in the sand.

It’s not correct to say the Constitution does a poor job of defining power. Rather, it explicitly defines powers for the legislature. The problem is this Congress is not willing to assert its powers when Article 1 section 8 powers are taken by the President.

There is no merit to argue that there is any twilight when it comes to the issue of FISA, the use of the NSA in war time, and what is to be done. The courts have a role. This President ignores the law.

We cannot credibly argue that this argument is unclear nor best left unresolved. Rather, if we do not assert the Congressional power – mandating that the rules be written by the legislature – interpreted by the Judiciary – and followed by the Executive, then we’re simply appealing to ignorance to justify an abuse of power.

It is untrue that power asserted by one is lost by another. This incorrectly states what the constitution is. There are only explicit powers. The explicit powers are uniquely delegated. Rather, the issue is whether the Executive has unlawfully exercised powers already delegated. Power is not destroyed; rather, it is incorrectly asserted by the wrong branch. This is called unconstitutional.

Where Congress has specifically stated how warrantless surveillance may be done – outside the Constitution—this expands Presidential power. FISA does that. One cannot argue the opposite that FISA destroys Presidential power; rather it simply impose on the Executive a ministerial duty to comply with the FISA in re broader exceptions. This executive ignored the exceptions. That is a violation of the statue and a matter of criminal law.

It is incorrect to assert that the power is one of give and take between one branch and the other. Rather, the broader issues is one of rights and power: If the Federal Government abuses power, then rights are violated. If the Federal government illegally asserts power exclusively delegated to another branch that is a breakdown of checks and balances: Not simply in the original abuse, but the failure by the other branches to prevent that abuse. The Supreme Court has to do more than simply promise to watch as the Constitution is ignored.

The issue is not whether the Federal Government wins or loses – or what may or may not happen between the branches. The broader issues – and more compelling one – is what happens when power is abused, and the People are forced to restructure the Constitution. Clearly, the People gain. It doesn’t matter what a politician may or may not want. His duty is not to the voters: His oath is to the Constitution. The passing winds of what the voters may or may not want does not mean that the Constitution goes unenforced, especially when the voters have been convinced to believe that all violations of the law are explained away by big scary things that do not exist.

What Lincoln may or may not have done in the Civil War is curious, but today’s rebellion is not led by the states – but by the President. There needs to be rules which permit the States to reciprocate. Just as the writ can be lawfully suspended to prevent insurrection, so to must there be a similar restriction on abused Presidential power. The President may be suspended, but the Congress assent to this rebellion. There is a solution.

That the Congress and Executive have a “precedent” for ignoring the court is by no means something that needs to stand unchallenged. We can create a New Constitution that makes it far easier to find the Members of Congress and Employees in the Executive branch in rebellion when they appropriate and spend money in contravention to the laws of war and laws of the land.

That Jefferson may have done something outside the law is not a precedent for us to assent to that abused power. Perhaps the abused power in re Louisiana is sufficient basis to say in 2006, “We really failed in New Orleans, time to give it back to the French. Maybe they can do a better job at protecting the people who used to count on the Federal Government.”

That Congress may or may not have ratified unlawful conduct does not mean that Congress has the recognized power to assent to abused powers in 2006. Treaties are one thing – creatures of government; the Bill of Rights is something else – the creature of the People, and cannot be ignored

Whether there is a habit of ignoring issues is irrelevant. FISA is clear. What the Executive may or may not view – as a matter of Constitutionality – is of no meaning. The courts have the power of judgement on the law, not the Executive. That some have avoided a needed lawful confrontation before the courts is not precedent. The states can force the Federal Government before the court. If the Federal Government avoids the law, the People may avoid the Federal Government and craft a New Constitution.

Indeed, the way forward is to force the Supreme Court – one that rather enjoys baseball games, eating hot dogs, not acting as an umpire – to face this issue. That can be done. It has already started.

Constituently clarity might make us face what is rather clear: We have a Congress and President in rebellion. The issue isn’t that power is or is not clear or drawn in the parchment. There are only explicit powers. They are explicit. They are in writing.

The issue is that the power is both abused and not asserted. This means our rights are violated.

We do not get any benefit by letting the Executive and Legislature dance in the Twilight. They can either do what is clear, or they can be clearly told they have a no choice with a New Constitution.

The Constitution is clear. They took an oath to the document. What is not clear is why they believe they can continue this dance without any lawful threat of an improvement, and better method to compel them to do what they promise.

The issue isn’t that power is or isn’t defined. The issue is that it is abused.

What may or may not be the gain or loss had other President done or not done things is of little interest. Jefferson did not have the FISA; nor did the FISA explicitly state anything about treaties. Rather, it is clear what this Executive can and cannot do. This Executive ignored the law.

We are asked to believe that illegal acts are required to protect the nation. But the evidence before us suggest the opposite: Nothing is stopping the President from using expansive powers to engage in warrantless surveillance: The FISA court allows him to do this. He must show that the exceptions to the warrants are lawful. He cannot. The answer is to ensure he follows the law, more so when he invents new exceptions to the Constitution. That is not an issue of ambiguity, it is one of impeachment.

There is no merit to the argument that because of what may or may not have been violated in yesteryear – and the speculative gain or loss had that illegal action not occurred – has any bearing on what the law is today. The law is as it is, not as we might wish it to be, or hope it is not.

We do not need to be bothered with whether we are or are not happy on matters of the law. The issue is whether we are happy in matters of our rights.

Simply because someone chooses to do something that ignores the law, doesn’t mean we have to accept those violations as inevitable.

Flexibility is an issue when it comes to matters of judgment--ideally, built upon and within the law. This Executive chooses to assert the power to write law, pass judgment, and ignore the law. That is neither idea, nor prudent. It is illegal.

The flexibility of the law is not a green light to be flexibility on whether we do or do not have our rights protected. That is not negotiable. Rather, the issue is what will compel the power be lawfully asserted, and used as clearly delegated. The role of the court – not the President – is to interpret the Construction.

That we may or may not have enjoyed benefits because of what mayor may not have happened in the past, is not reason to compromise on what benefits we have: The right to be free from the abuse of power. That is not something we should be flexible on. Rather, it is our right. It is the responsibility of government to ensure that right is not simply protected, but it is preserved. This Federal Government has failed.

It is absurd to suggest that sunlight or spotlights will do harm. It will simply identify the problem and be the catalyst to create something that better protects rights and prevents the abuse of power.

The answer is not to accept that this Government is t be trusted; or that the confusion is one in the Constitution. The problem is the unwillingness to assert power, and the failure to comply with the law. This President has been given clear requirements, and many exceptions to engage in the warrantless surveillance. Yet, he has abused power and our trust. The way forward is for the Senate to shine a spotlight on his conduct and lawfully remove this Executive. He is unfit to be trusted. There is no harm in the truth. There is great harm in pretending we should not know or face the truth.

Flexibility is the illusory compromise. The real compromise should be whether this Congress will freely do its job – and assert power to protect rights – or whether we shall force the Congress to do what it refuses. Being flexible means we let Congress choose how to achieve the outcome. The outcome is clear: Protect rights and prevent the abuse of power. We cannot credibly be asked to be flexible on what are inalienable rights.

We do not have the time to be flexible when the Federal government chooses to abuse power and violate the law. It is our desire to “get along” that has been abused. It is time for the Congress and Executive to decide: Which Constitution are they loyal to – this one, or the Next One which gives them no option but to do what they already have been clearly told must be done: Obey the law, enforce the law, and ensure rights are protected, not abused by reckless power.

There is no reason to believe that the American President is or is not subject to any inconvenient forces. Rather, he is a creature of the Constitution, one that we can lawfully-politically destroy by crafting a New Constitution.

We get no benefit by assenting to any argument that compels us to be flexible on something we’ve clearly stated: This is the law, these are your powers, and do your job. This Federal Government chooses to rely on compromise when compromise is not longer an option: The Constitution is clear. What is unclear is whether this Congress will freely do what must be done – lawfully remove this executive from power – or be lawfully forced to do so with a New Constitution that denies them the discretion to engage in rebellion.

The spotlight needs to be shined more closely into the eyes of Congress and the Executive. They choose rebellion, but ask us to be flexible in whether we state the obvious. They need to be flexible on whether they can rely on non-sense. Those days need to end.

We cannot be flexible when this Federal government abuses our rights. Nor can we be flexible when abused power is unchecked. Flexibility has invited others to abuse power and violate rights. Flexibility has sent the message that one may be flexible on whether they do or do not assert their oath of office. We must be flexible on whether we apply the principle of flexibility, not the rule of law. We cannot be flexible when the rule of law is ignored, rights ignored, or power abused. Those who do not stand up for the rights will have those rights ignored, abused, and violated. Those who delegate power but do not ensure those clear rules are followed will have power abused.

We are the source of power. We are the ones whose rights are at issue. Whether the Federal government does or does not understand that is of no relevance. We may be flexible in whether we tolerate abuse, and we may also exercise discretion and lawfully revoke the powers that are abused. This Federal Government despite clear laws of man and lanes of power, has done the opposite. There’s no reason to be flexible. The way forward is to be free, and assert our power to compel them to honor their agreements. They have failed. We need more spotlights to discover what else is broken and fix it. Anything else will simply say we permit the abuse of power and violation of our rights. That is not acceptable. They know this, but ask us to be flexible.

Those days are over.

They wished this.

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Steven Boyle

Forum: It's broke, but let's not fix it
April 2, 2006

Washington Times

The Republicans on the Senate Intelligence Committee let President Bush off the hook recently on the matter of wiretapping American citizens without a warrant. Wisconsin Sen. Russell Feingold's motion to censure the president may make the Democrats feel a little better, but the fact is the president's domestic eavesdropping program will continue, albeit subject to a modest degree of congressional oversight.
The basic issue of presidential authority, or lack thereof, to conduct such surveillance has been successfully buried. In their rush to head off an issue that was damaging to an already struggling president, and unhelpful to their congressional colleagues in an election year, the Republicans' action may be seen as simply partisan. But might they, by default or by design, have been working for some higher purpose?
The United States' Constitution, for all its genius, does a poor job of defining the relative powers and responsibilities of the legislative and executive branches of government. The founders, in the words of Supreme Court Justice Robert Jackson, left a "zone of twilight" -- an area where the division of constitutional authority between the president and Congress is blurred. Arguments over this twilight zone have been a defining feature of American politics ever since, but some arguments are better perpetuated than resolved. The appropriation of power by one branch of government inevitably results in the loss of authority by another, the last thing any politician wants. The fact is that, in many cases, neither side can afford to lose.
When Abraham Lincoln suspended habeas corpus during the Civil War, the Supreme Court told him flatly that he lacked the necessary constitutional authority to do so. He, and Congress, ignored the Court. Thomas Jefferson negotiated and concluded the Louisiana Purchase against all of his anti-federalist principles and, in all probability, acted beyond the powers vested in him by the Constitution. Congress rode on the unconstitutional coattails of the president and ratified the treaty with France anyway.
On a more contemporary note, Congress and the president continually skirt the issue of who has the power to make and sustain war. In December, Vice President Dick Cheney reminded us that presidents from Richard Nixon to George W. Bush have regarded Congress' 1973 War Powers Resolution as an unconstitutional interference with the prerogatives of the president. Yet both Congress and successive presidents have steadfastly avoided any moves to resolve this constitutionally sensitive issue before the Supreme Court.
What is wrong with a little constitutional clarity? At first blush you might think that a clear and precise demarcation of executive and legislative authority would make for better government.
But maybe Justice Jackson's twilight zone has its uses. Would we be better off if Thomas Jefferson hadn't seized the moment to secure the Louisiana Purchase? Undoubtedly not. Would we be better off if Lincoln had adhered to the ancient principle of habeas corpus and allowed Washington D.C. to fall to the Confederacy? I don't think so. Would we be happier if President Bush had used the available legal channels to secure warrants for his domestic eavesdropping? Probably.
But here is the rub. Flexibility in the interpretation and application of the United States Constitution has brought us some considerable benefits. Shining a spotlight into the twilight zone may do us more harm than good.

Stephen Boyle is writing his Ph.D. dissertation, which focuses upon the American presidency, at the University of Florida.