Constant's pations

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

Thursday, September 21, 2006

RNC Senator Violated Separation of Powers

Ref Senator Graham, despite his legal education, got a spanking.

Senator Graham's predicament is a reminder of the problems facing the President over the FISA-NSA issues and those self-reviews he says he was doing every 45 days. Just as a Member of Congress can't exercise Article III judicial powers, neither can the President.

Senator Graham's situation is also a lesson for the Attorney General and the NSA-FISA violations. The Attorney General has yet to comply with the Title 28 reporting requirement to discuss how the President violated the FISA requirements, and illegally failed to ensure the laws of war were enforced. [ Details ]

Opinion: Ref; Draft Indictment against Senator Graham: Ref

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They say in battle that your enemy can expose your weaknesses. If you're smart, you'll find someone to have a mock engagement with, and fix the problems before you face a real challenge. Not these Republicans. They hide their flaws, refuse to engage in oversight, and then blame the enemy for exploiting what the Republicans refused to fix.

The RNC lawyers can't get it right -- it's no wonder we don't have investigations into the President's war crimes.

The same goes with legal issues. The idea of Separation of powers is to force the branches to clash, and check the power of the others.

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We have another reminder of the importance of open courts. Secret trials aren't permissible, and they'll only allow the Republicans do more of what they've been doing: Violating the laws of war. The defendants in court, not the leadership in Congress, are making the Republicans do what they should.

Graham's predicament shows the danger of allowing Members of Congress to make opinions on the law -- they're blind to their own conflicts. Even the legal "experts" in the Republican Party get it wrong, just like the President has been, on matters of the law.

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Note carefully how this conclusion came about. A defendant at trial challenged Senator Graham's standing as a judicial officer. Ideally, the Senator should have long ago removed himself, or the system internally should have corrected the error. In practice, the open court system ensured that the defendant identified the problem, forced the government to respond, and there was public oversight to ensure the problem was addressed.

This situation is an important reminder. Legal counsel in both the Executive and Legislative branches cannot be trusted to interpret the law. This is an exclusive Article III power which belongs to the judiciary. Similarly, when Congress attempts to retroactively do something to thwart adjudication, the problem isn't simply the lack of accountability, but the expectation going forward that abusive conduct has a get out of jail free card. This is an incorrect message to send to any prospective war criminal.

The reason we have open courts isn't to make the Government's job difficult, it's to ensure the Government when it abuses power will be sanctioned. This Congress has assented to the initial abuses; stood silent while the courts were circumvented; did nothing to stop the abuses; then retroactively hoped to explain away violations which only the judiciary decide. That's why these precedents are important.

The rules are also there so that senior law enforcement managers get a signal that one of their crew isn't doing what they should. In theory, when a law enforcement officer says "they just know" that someone is guilty, but have no evidence, the law enforcement officer hasn't met their burden. Sadly, American law enforcement turns a blind eye to accusatory-justice, and tolerates NSA-JTTF launching investigations based on assertions, not evidence or probable cause provided to the court by securing a warrant.

Congress is complicit in failing to enforce the law, and not disciplining senior NSA and DoJ personnel for abusing power and circumventing Constitutional requirements; and for failing to require the Executive branch action be related to evidence, not simply Spanish Inquisition-like standards. Even through Congress has stated clearly what the NSA and DoJ are required to do, this Congress refuses to investigate violations of the legislative power tools -- Statutes.

Again, the resolution to these matters is not exclusively political. Whether Congress and the President do or do not self-check their power, comply, or enforce the law is meaningless. Rather, the courts will have the final say. The issue is whether Americans will interfere with American courts, or attempt to obstruct war crimes prosecutors. Either way, Congress and the Executive are powerless to thwart ultimate judicial review.

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The underlying rule: Members of Congress and the Executive Branch personnel are not above the law, and are not immune to judicial review. Senator Graham, as a Member of Congress, is not allowed at the same time to serve a judge, in the third branch of government.

Power is separated, and similarly the President is in no position, as with the FISA 45 day reviews, to independently review whether the NSA surveillance is or is not illegal.

No President and no Member of Congress has the power to create unconstitutional or illegal law, or undermine the Separation of Powers. Rather, they can be prosecuted for permitting, or not stopping what is illegal and a war crime.

With lawyers like this, its no wonder the Republican DoJ Staff Counsel have difficulty understanding the Geneva Conventions and Rule of Law. Even experts on the law are blind to Constitutional violations. It requires the independent courts to adequately oversee the legal issues, and clarify what confuses the Congress and Executive: The Rule of Law.

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The Rule of Law prevails. Without regard to time, WWII war crimes prosecutors continue their work in the 21st Century. It remains to be understood what other legal issues the Republican experts have either missed or buried, awaiting discovery.

Good prosecutors ensure justice is done to all, even their peers in the legal profession. War crimes prosecutors find satisfaction in convincing the courts to jail or, if more appropriate, execute convicted war criminals.

They wished this.