August 18, 2006

Does Congress Have The Will?

Judge Anna Diggs Taylor and President George W. Bush

On Thursday, Federal District Court Judge Anna Diggs Taylor dealt the Bush Administration a significant blow in a suit brought by the American Civil Liberties Union (ACLU) and a group of journalists to have the president’s National Security Agency (NSA)-administered warrantless surveillance program declared illegal and unconstitutional. Judge Taylor’s forcefully written opinion left little doubt that she believes that President Bush has repeatedly violated the law by circumventing the FISA Court, through which he is legally required to obtain warrants for covert surveillance. (See Quis Custodiet Ipsos Custodes: Who Watches the Watchmen?) More importantly however, Judge Taylor declared that the program was unconstitutional, stating that the government has “violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers Doctrine.”

Although the White House and Congressional Republicans have attempted to link the NSA program to success in prosecuting the “War on Terror,” to date, there has been no evidence that the initiative has led to the capture of terrorists or the prevention of terrorism, including the recently-revealed British liquid explosives plot. Regardless, however, of the program's effectiveness or lack thereof, the heart of the ACLU’s legal challenge has nothing to do with whether that organization or anyone else believes that terrorists should be caught, or whether the government should do everything in its power to catch them. Rather, it is an attempt to return clarity to the definition of the very power the government wields in the face of repeated statements that illegal acts are legal. It is an act of faith in our system of government, and a refusal to be cowed by either foreign enemies or fear mongering from within our own borders.

There has been ample declaration that “September 11th changed everything,” and widespread implication that those who cherish the Constitution and the civil liberties so dearly won by our forefathers are no longer relevant for exhibiting a “pre-9/11 mindset.” Attorney General Gonzales and others have asserted that the President has “inherent” power to guide the country as he sees fit, without encumbrance from oversight. Judge Taylor’s opinion reminds us succinctly that the “Constitution of the United States is a law for rulers and people, equally in war and in peace,” and that “no emergency can create power.” Judge Taylor also firmly contradicts nascent theories of unrestrained presidential power, pointedly noting, “We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution.”

While the egregious legislation that Senator Arlen Specter is working to advance would provide some measure of legal cover for the Bush Administration (See The Senate's Neville Chamberlain of the Constitution), there is at least hope that that bill will be stillborn, given Judge Taylor’s focus on the underlying constitutionality of attempts to circumvent the Separation of Powers Doctrine. That potential success aside, the battle is far from over. The White House is already appealing Taylor’s decision, and the warrantless spying program rumbles on, unscathed until that appeal is heard and a ruling made.

While some legal scholars have said that Taylor's opinion is not thoroughly or rigorously reasoned (See Ongoing Misperceptions of Judge Taylor's Opinion at Glenn Greenwald's Unclaimed Territory and don't miss Lawrence Tribe's outstanding eMail to The New York Times at Balkinization), there is a strong chance that a good portion of it will stand. It is a reasonable supposition therefore, to believe that the defendants in this case – the Bush White House and the NSA – will remain guilty of some degree of law-breaking, some degree of violating the Constitution, or both.

What then?

Does Congress have the will to impeach the president, as would clearly be demanded by such an eventuality? Given the Republican-controlled Congress’ appalling abandonment of its oversight role (See Abject Failure in the Parliament of Whores), the answer is more than likely no. But, if impeachment of a president who has broken the law, violated the Constitution or both MUST take place to restore the rule of law, what can be done?

The answer lies at the ballot box.

Congress is the the key to pursuing justice against any president who breaks the law or violates the Constitution, and because of midterm elections, the fastest source of relief. If those elected to serve and protect the Constitution do not have the will or ability to carry out their duty, it is time to find others who do.


Causal said...

If there were a ballot box, we might be able to rely upon it.

Impeach Bush yourself! No Joke.
This is much more than just a petition.

There's a little known and rarely used clause of the "Jefferson Manual" in the rules for the House of Representatives which sets forth the various ways in which a president can be impeached. Only the House Judiciary Committee puts together the Articles of Impeachment, but before that happens, someone has to initiate the process.

That's where we come in. In addition to the State-by-State method, one of the ways to get impeachment going is for individual citizens like you and me to submit a memorial. has created a new memorial based on one which was successful in impeaching a federal official in the past. You can find it on their website as a PDF.

You can initiate the impeachment process yourself by downloading the memorial, filling in the relevant information in the blanks (your name, state, etc.), and sending it in.

More information on the precedent for submitting an impeachment
memorial, and the House Rules on this procedure, can also be found at
the above address.

If you have any doubts that Bush has committed crimes warranting
impeachment, read this page:

If you're concerned that impeachment might not be the best strategy
at this point, read the bottom of this page:

"I just want you to know that, when we talk about war, we're really talking about peace."
Bush, June 18, 2002

"War is Peace."
Big Brother in George Orwell's 1984

PBI said...

"Only the House Judiciary Committee puts together the Articles of Impeachment..."


I think this may be the over-riding phrase in your post.

The citizenry can submit all manner of things, but as long as we are dependent on any kind of committee, legislative house or the entirety of Congress, we must have people in those institutions who are willing to do what needs to be done. In this case, unless there is control of the House Judiciary Committee by members of Congress willing to proceed, impeachment will die. Further, unless the House leadership actually brings articles of impeachment to the floor for debate and a vote, making it out of committee will still be insufficient.

There is definitely something to be said however, for grassroots involvement in this issue. I just believe that submission of the memorial on a widespread basis will serve only as a measure of public sentiment, rather than the actual spark that ignites impeachment proceedings.