Constant's pations

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

Saturday, March 17, 2007

Premature To "Fix" US Attorney Appointment Process

The Constitution provides for Senate confirmation of US Attorneys.

I am concerned that current discussion and legislation to "solve" the President's and Attorney General abuses are premature.

We don't know the facts. We don't know all the abuses. We do not know to what extent the Patriot Act has been the means by which other abuses have occurred.

It is premature to solve something which has not been understood. Most important, Congress should not be in the business of "restoring" something that was never lawfully changed in the Constitution.

* * *

Our Constitution can only be changed by the government using an amendment. This US government ignored the Constitutional requirements, and illegally amended the Constitution.

It is not lawful for the Congress to have amended the Attorney Appointment process, permit the Attorney General to directly appoint US Attorneys.

Proposals to permit "interim" appointments by the court are premature. We do not know what has been abused.

Let's get the facts:

___ Which specific language in the Patriot Act was illegal;

___ How has the Constitution been illegally abrogated;

___ Why is the Congress "agreeing" to "let" the Constitution return to its original state requiring Senate confirmation;

___ What will be done with the Members of Congress who have illegally passed an act which defies the Constitution and lets the US Attorney directly appoint US Attorneys

___ Is Congress going to punish Members of Congress who implemented this procedure

___ What evidence shows the Executive Branch was firing people to thwart the Constitution, and put into place people the Senate would have rejected.

* * *

We the People need to take a wide view of this US Attorney firing process. Congress had a role in the mechanism. It illegally passed legislation that abrogated the Constitution, and "allowed" the Attorney General and courts to make a direct appointment without Senate review.

To be understood is to what extent Congressional, White House, and DoJ Staff counsel jointly implemented an unconstitutional process, unlawfully enforced that act, and achieved an unconstitutional result.

It is a smokescreen for Congress to "restore" the Constitutional requirement. This impermissibly puts the President and Congress in the position of "Debating" and "Making subject to their discretion" whether the explicit requirements in the Constitution are or are not fully followed.

This is not something the Congress can debate; or the President can threaten to not cooperate. It is the Supreme Law.

* * *

WE the People have a job to do. It is to oversee this government; compel Congress to explain fully why it is "letting" the Constitution be restored; and support the remaining US Attorneys who dare to show they are going to fully assert their oath regardless whether it is against Members of Congress, judicial branch employees, or DOJ Staff counsel.

Before we discuss "solutions" to the US Attorney problem, perhaps we need to take a wider view of the problem:

___ How is having the US Attorneys under the President a problem;

___ To what extent is the President and Attorney General able to shut down investigations by DOJ OPR

___ What happens when Members of Congress illegally abrogate the Constitution:

___ What happens if there is a special counsel required, but those subject to the investigation do not wish to initiate action?

These are questions which are at the heart of the problem: What happens when government officials do not agree to fully assert their oath, and independently assent to the supremacy of the US Constitution.

* * *

One option is to remove all prosecutions and investigation power form Congress and the President, and transferring this legal power to a fourth branch of government.

Another solution is to move the prosecution mechanism out of the Department of Justice, and require the enforcement of the law through prosecution be subject to an independent branch.

Or what could happen is the leadership of the Department of Justice could remain as it is-- a political appointment -- but the functions of prosecution be subject to independent oversight in a fourth branch.

Before the Case is rejected, brought to trial, or the investigation is stopped, a fourth branch would have the power to do audits, reviews, prosecutions, and investigations.

No longer would Members of Congress be able to hide or cooperate with an illegal rebellion.

Further, if the Fourth Branch had real power, then it would check Members of Congers who propose, fund, and implement unconstitutional acts such as the Patriot Act. It doesn't matte what Congress "agrees" to or "permits." Congress has no power to "permit" unconstitutional conduct.

* * *

I support oversight of the US government. I do not support hurried solutions to the wrong problem. There is much to be known about the US Attorney firings.

Most of all We the People have yet to have a fully accounting for what failed in this Congress, what will be done to prevent this above from happening, and a clear showing that the proposed solution solves the real problem. Real solutions may mean transforming the Constitution into something that does check and balance by requirement, as opposed to the current approach of voluntarily doing what is otherwise a requirement by oath: Preserve, protect, end defend the Constitution from domestic enemies.

* * *

Comments on Feinstein Quotes Ref

1. Illusory restoration of what was unconstitutionally changed

"The way to cure this abuse is to return to our nation's basic principle that checks and balances on power are necessary and desirable."

This comment incorrectly suggests that we have left. No, the US government has left; We the People in Our Constitution made it clear the requirement.

It is not appropriate for the Congress to suggest that "We" are going to return to something that this Congress and President illegally did.

2. Restoring what was not lawfully taken away

The Senate alone has the Constitutional requirement to be part of the appointment process. This Congress and President passed legislation thwarting that requirement. This is illegal.

Feinstein's statement "I have proposed legislation to restore the process" incorrectly pretends that the process was lawfully changed, it was not. The Congress cannot delegate power to the President or others to appoint US Attorneys because the Constitution expressly only allows that delegation for other officials, not US Attorneys.

3. Continuing the process which was abused

Absent a full accounting for what went wrong, it is premature to suggest:

"This legislation would allow the attorney general to appoint an interim US Attorney for 120 days when vacancies occur."

No, the appropriate way forward is to wait until we understand what informal process is in place to make vacancies occur. If the US Attorney General has the power to make "interim" appointments, but the firings continue, then the Senate is likely to fall into the trap of rubber stamping the direct appointment because "this is the best person around."

4. Avoiding the issue

This is not acceptable:

"If, after that time [of 120 days], the president has not sent a nominee to the Senate and had that nominee confirmed, the authority to appoint an interim US Attorney would fall to a local district court."

The error is to pretend that a failure of the Senate and President to act means the Judicial Branch should have oversight. No, this is a violation of the CO-Equal branch principle.

The framers intended for only the Senate and President to have a role in the appointment process. The Judiciary cannot have a role in what is an Executive Function. This impermissibly permits US Attorneys to be appointed by the appointed. This is contrary to the Framers intent in the appointment process.

* * *

One thing worse than a GOP rubber stamp is a GOP plan to hide that they've delegated their rubber stamp to another branch of government.

Judicial Branch Involvement Impermissibly Avoids Needed Clash of Factions

I do not care whether this Process has or has not been in place. It is illegal. The framers did not intent for the Judiciary to act as a circuit breaker. When there is a logger head, and the Senate and President refuse to agree, then there is not agreement.

The proposed solution -- that of relying on the Judicial branch to bail out the Congress and President -- is outside what the Framers intended: For factions to clash.

The judicial branch involvement in the "refusal to agree" and "bailout the factions" has, arguably, been one of the reasons behind the current problem: Because Congress and the President under the GOP were not forced to clash, and the Judiciary solved the problem, then Congress was never held to account for its inaction; and the President as not held to account for poor nominations.

The Constitution is designed to compel factions to clash; but this Congress and President have written rules designed to circumvent this clash, and allows the unconstitutional alternatives to spiral into the mess this President and Attorney General have created with the US Attorneys.

The Judicial involvement in the nomination process needs to be revisited. The solution is to follow the Constitution, and for the President and Congress to understand that their failure to solve a problem means they have failed, and they cannot rely on a third branch to bail them out.

When the US government will not agree on judges or US Attorneys, surely prisoners should be released. Failed convictions is a problem for the American leadership to resolve, not to explain away, or hide with "speedy" solutions which avoid the fundamental requirement: The clash of factions.

It is fitting that the falling criminal convictions and prisoner release is a problem the President must confront; and one for the GOP Congress to accept responsibility: They did not ensure there was a process in place to manage the caseloads. The burden for Congressional-Executive incompetence in educating qualified attorneys means Prisoners are denied timely justice.

The court backlogs are a symptom of his US government’s failure to take legal training seriously. If the US government and President jointly agreed that legal education was important – and start that legal training early in school – then the American legal community might not have this problem: The recklessness the ABA and DOJ Staff have shown toward peer reviews, protecting the Constitution, and ensuring the legal minds in American fully assert their oath against all domestic enemies.

The error is for Congress and the President to pretend that their disaster and leadership problem in the legal community should be rewarded by unconstitutional solutions. No we the People can reasonably raise the education standards for all Americans, inspire in the heart of Americans the simple notion of what is at the heart of the legal system – the rules of logic – and compel the Congress and President to stop relying on the Judicial branch to bail them out, or avoid the needed confrontation.

It is the ‘Interim” appointment process and Judicial Office involvement which has allowed the Congress and President to not clash on the US Attorneys and legal system; and has helped enable to the American government to believe that the education system in America is fine. It is not. There is no reason that any American should be fooled into believing the US legal community is competent when Americans are fed this kind of non-sense about the laws of war, Geneva Conventions, and US Constitution from reckless DOJ Staff counsel who have one thin on their mind: Abuse of power to support illegal rebellion.

This Congress needs to awaken to the education problem in the American legal community, and accept that the President and Congress have jointly failed to enforce the law and compel legal leaders to lead the legal community.

We the People are prepared to provide this leadership. The answer is in the Constitution:

___ No judicial involvement in the appointment-nomination process

___ Force the factions to clash

___ Compel the legal community to take responsibility for their reckless defiance of their oath and failure to conduct competent peer reviews on DoJ and White House counsel

___ A failure of this Congress and President to outline a plan to fully assert their oath and ensure the statues, acts, and laws of the land are consistent with the Constitution

___ Compel leadership in the Department of Justice to show they have credible plans in place to oversee, supervise, and help all US Attorney succeed regardless their political background

___ Impose timely consequences on the legal community for their assent to illegal warfare, prisoner abuse, FISA violations, 42 USC 1983 misconduct, and unconstitutional assertion of non-delegated power.

Time for the American legal community to get a clear wakeup call: WE the People know you have failed; that you are reckless; and that your leadership is worthless. You have clear standards of conduct and you failed to assert them; you have no oversight of your attorneys that is worth talking about; and the results we have – war crimes, unconstitutional conduct, abuse of power, illegal warfare, and violations of the bill of rights – lands on your shoulders: You were the experts, you failed, and you have let this Constitution be treated in an inferior manner.

This is a problem the American legal community and the ABA need to confront, outline a solution, and present that proposal to We the People:

___ What is your plan to prevent this from happening again;

___ How will the American legal community ensure all attorneys rise above their party loyalty and fully assert their oath

___ When there is illegal warfare, constitutional violations, and grave breaches of the Supreme law, what does the legal community plan to do to forcefully assert the rule of law and end this illegal rebellion?

The American legal community has no plan. We the People have on the table a New Constitution which will put the American government and legal community it is place: It remains subject to audit, disbarment, and review by war crimes tribunal. Time for the American legal community to step up to the plate, get involved with the Constitution, and provide some leadership. Without their input, We the People are inclined to move to something else that marginally protects the US Constitution better than the lazy, reckless idiots parading themselves as if they are God’s gift to mankind.

Lawyers were the ones in the American government who illegally assented to this above of power. They ailed. They did not do their job. And the legal community has let this abuse of power continue too long. Time for We the People to compel the American legal community to come to the table.

A New Constitution exists. The American legal community is denied any power to have input to this new document.

The error is to hide the evidence of symptoms -- delayed prisoner processing -- to hide the real problem: A failure of the factions to clash and confront real problems: The leadership problem in the American legal community, and inadequate education for all Americans to give them the basic understanding of what a legal problem is, how to screen attorneys, and how to recognize when they are being given non-sense from the American legal community.

There is no excuse for this American government to have spewed forth this non-sense since 9-11, and miss the basic principle of the law: It is based on logic. All the Iraq WMD issues are related to questions that were never asked or answered. The intelligence community relies on the same rules of logic which this President and Vice President claimed didn't apply. The Department of Defense contractors involved have spewed forth non-sense about cost savings and this American government has bought it hook line and sinker. This government chose to not do audits on contractors had did not oversee the recklessness at Guantanamo.

One answer: Logic problems are related to the legal community's leadership problem. It's not more complicated than that. This problem seeps into the absurdity about solutions, debates, and issues related to warfare and Geneva. When leaders defy logic they violate the law, and then they expect others to roll over.

When American factions refuse to clash, there are other factions abroad willing to fill this power vacuum. Imprudence is challenged in battle; there are no secrets; and the flawed logic is defeated. The Iraqi insurgency, Taliban, and AlQueda are a product of the American government's reckless disregard for logic: The flawed attempt to abuse power and expect the world to roll over, accept it, and cooperate with their abuse.

We the People rejected this absurdity November 2006. This US Government does not comprehend the basic problem they have not addressed: Defective thinking in the American legal community. Either the US government gets on the ball and fully asserts its oath; or We the People may lawfully inject a New Constitution to compel the leadership to do this.

In the end it is going to happen. A solution is inevitable. The question is whether this Government is going to cooperate with the existing law; or through additional force from abroad by the Iraqi insurgency, make it painfully obvious what is at the heart of this abuse of power: Stupid people in Washington not embracing their legal requirements fully and assert their oath of office to stay within the law. Iraq is a symptom of this failure.

* * *

Back to the US Attorneys

The real solution is to look at what is required to make the US Attorneys want to stay and succeed. This is a leadership and oversight issue for the Congress to define, and mandate on the US Attorney.

____ What will be the rules by which the US Attorneys are evaluated;

____ What oversight requirements will the Congress impose on the Attorney General;

____ How will the Attorney General show Congress that they are competent;

____ What will be the reviews and audits of the AG oversight process to evaluate whether they are or are not adequately supervising the US Attorneys;

____ What will be done to monitor the AG-US Attorney interactions to evaluate whether the desired goals are being achieved; or whether there remains a supervision problem.

* * *

It can hardly be called a solution when legislation is proposed, but the real problem has not been discussed; nor has it been investigated.

It is appropriate to discuss the problem. What is not correct is to discuss a solution to the wrong problem; or pretend that Congress is not part of the illegal enabling force.

The solution requires a review of what was done in Congress to enable this abuse of power; and ensure the Members of Congress who have illegally abrogated the Constitution are held to account.

We the People do not need more smokescreens. The Constitution cannot be subject to discretionary enforcement. Congress and the President were denied the power to change the Constitution unilaterally. Before we discuss changes to the law, we need to discuss what needs to be remedied in the US Government; and what will be done to ensure these illegal Constitutional violations and rules are not allowed to ever be passed, much less enforced.