Thursday, May 25, 2006

A Constitutional showdown looms —but not the one we expected

At stake is a system of checks and balances established by the founders in 1787! Will it fall victim to the Bushco train wreck? For the first time in American history, armed federal agents of the executive branch of the government executed a raid on Congress and spent hours "rifling through papers" and removing materials that they alone deemed necessary to an investigation.

This time even Republicans are alarmed. House speaker Dennis Hastert —no friend of the Constitution —denounced the assault on the checks and balances; House Majority Leader John Boehner, R-Ohio predicted the issue would be decided by the Supreme Court.

The target of their investigation is Rep. William Jefferson, D-La, himself little defended by either party. The condemnation of the raid, however, comes from both sides of the aisle. Rarely have the GOP so boldly defended the Constitution as when Hastert reportedly told George W. Bush that the raid violated the U.S. Constitution, the separation of powers, and the "Speech and Debate" clause specifically.
"[Senators and Representatives] shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place."

—Speech and Debate Clause

The raid smacks of Oliver Cromwell and his armed troops storming into the long parliament and dismissing them at the end of a long and thunderous harangue: "You have sat too long for any good you have been doing! Depart, I say, and let us have done with you. In the name of God, go!"

I will not defend the "target" just because he's a Democrat. If the allegations against him have substance, he must be investigated —but not at the expense of what little remains of the rule of law. The allegations against him must not become the pretext by which the last vestige of Constitutional law is jettisoned on Bush's watch.

I am also slow to applaud Hastert in the role of "good" Republican for denouncing the raid. Hastert himself is so compromised that FOX News made it a point to report that Hastert himself was NOT under investigation. It is a sign of immoral times when headlines trumpet that someone is not facing indictment. Surely, we are living in the end game —when Bush will either consolidate his dictatorial rule or he will fail and be removed precipitously.

Charles Dickens was prescient. Mr. Bumble, in David Copperfield, could very have been describing contemporary life in the United States: “If the law supposes that,” said Mr. Bumble,… “the law is a ass —a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience —by experience.”

Congress would be well-advised to begin its impeachment investigation of Bush now —while there is still a Congress. The downside risks are not insignificant. In a showdown —Rumsfeld will take his orders from Bush who would not hesitate to order the arrest and detentions of those members of Congress organizing to impeach and remove.

The harm Bush has done to the Constitution will outlive his administration but the GOP will not have to wait for retribution. A popular firestorm will sweep through Washington like a Kansas tornado through a trailer park. Republicans —Bush fanatics, in particular —have argued that Bush could be trusted with increased executive power. To their everlasting chagrin they have been proven wrong, and many —Hastert among them —are giving evidence that they regret having thrown in with a gang of crooks and usurpers.

The GOP must surely realize that saving Bush will be the end of the American republic —but also the end of the Republican party. Surely the GOP must realize that Bush "ain't" worth it. The alternatives to Congressional action are simply too terrible to contemplate —the end of the Constitution, the end of the republic, the end of the rule of law, the end of the separation of powers, the end of due process of law, the end of the United States.

Some updates: A Register-Guard Editorial asks some tought questions of a Congress that has too often just rolled over for the would-be emperor:
Where, pray tell, was Congress' outrage and determination to defend the Constitution when the Bush administration:

• Assumed unilateral executive authority over any and all questions of war and peace, and brazenly manipulated intelligence reports to justify its prior decision to invade Iraq?

• Declared that the president has the power to ignore federal statutes and international treaties governing the treatment of enemy prisoners?

• Assumed the power to designate American citizens as "enemy combatants" and lock them up without charges or any semblance of due process for the duration of an amorphous "war on terror" that has no end in sight?

• Claimed that the president has the inherent power as commander in chief to order the secret surveillance of the international e-mail and telephone conversations of U.S. citizens - and to obtain their phone re- cords to create vast databanks?

• Issued more than 750 presidential signing statements, far more than any other chief executive in history, reserving the right to interpret new laws on his own terms? Examples include a congressional ban on torture of prisoners, a prohibition on the military keeping illegally gathered intelligence on American citizens, and a requirement that the Justice Department keep Congress informed on how the Patriot Act is being used to search the private homes of citizens.

Bush's Garroting of Democracy

By Robert Parry

May 24, 2006

The Bush administration’s steady garroting of American liberties – already strangling the right to a fair trial and protections against warrantless searches – is now tightening its chokehold around the First Amendment’s guarantee of a free press and respect for Congress as a co-equal branch of government.

Over the past weekend, George W. Bush and his Justice Department signaled to the U.S. press corps and Congress that they are not beyond the reach of Bush’s “plenary” – or unlimited – powers as Commander in Chief or his authority as “unitary executive,” deciding what laws to enforce and how.

On May 21, Attorney General Alberto Gonzales told ABC’s “This Week” that news organizations like the New York Times could be prosecuted for publishing classified information about the “war on terror,” such as the disclosure of Bush’s secret program of warrantless wiretapping inside the United States.

The night before that TV interview, the FBI conducted an extraordinary raid on the Capitol Hill office of Democratic Rep. William J. Jefferson of Louisiana as part of a bribery investigation, raising bipartisan concerns about the Executive Branch trampling congressional rights and intimidating members of Congress.

“The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case,” House Speaker Dennis Hastert, R-Ill., said in a statement.

“Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night crossing this Separations of Powers line, in order to successfully prosecute corruption by members of Congress,” Hastert said. [Washington Post, May 23, 2006] ...

Bush orders FBI-Congress documents sealed

By LAURIE KELLMAN, Associated Press Writer

WASHINGTON - President Bush stepped into the Justice Department's constitutional confrontation with Congress on Thursday and ordered that documents seized in an FBI raid on a congressman's office be sealed for 45 days.

The president directed that no one involved in the investigation have access to the documents under seal and that they remain in the custody of the solicitor general. ...

Hastert lashes out at Justice Dept.

By LAURIE KELLMAN, Associated Press Writer

WASHINGTON - House Speaker Dennis Hastert accused the Justice Department Thursday of trying to intimidate him in retaliation for criticizing the
FBI's weekend raid on a congressman's office, escalating a searing battle between the executive and legislative branches of government.

"This is one of the leaks that come out to try to, you know, intimidate people," Hastert said on WGN radio Thursday morning. "We're just not going to be intimidated on it."
Additional resources:
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26 comments:

Doug Drenkow said...

The president deludes himself and a great many others into thinking that the state is most secure in his "capable" hands ... free from what the administration portrays as the meddlesome interference of perhaps well-meaning but ultimately misguided forces, as of the Congress, the courts, the media, our allies.

Cromwell, as Lord Protector, is indeed an apt analogy; and his fall from grace -- brought about by his attempting to force all others to share his puritanical world view and personal discipline -- is likewise instructive: two of every three of our citizens do not wish to be wards to this dangerous, demented pater communis.

The spine we seek is in the body politic at large. Individuals -- either in the legislature, whose hands are tied by minority status or procedural intrigues, or in the populace -- are powerless against those who rule with contempt for the rule of law; but individuals united -- behind the basic principles that united these states in the beginning and were apparent on the steps of Congress and street corners across the nation on September 11th -- have always prevailed.

The wrongheadedness of dictatorial leanings is rooted not simply in their immorality but also in their impracticality.

As so correctly stated in the Declaration of Independence, governments derive "their just powers from the consent of the governed."

Only a fool would try to undermine that sacred and pragmatic principle.

Doug Drenkow said...

By the way, these comments are also posted in BarryTalk.com, where the ol' Existentialist Cowboy is a valued guest blogger.

Len Hart said...

Doug, thanks for sharing your excellent analysis with the regulars here at the corral.

You wrote:

Cromwell, as Lord Protector, is indeed an apt analogy; and his fall from grace -- brought about by his attempting to force all others to share his puritanical world view and personal discipline -- is likewise instructive: two of every three of our citizens do not wish to be wards to this dangerous, demented pater communis.

You wrapped it all up nicely; and, I especially like the phrase "dangerous, demented pater communis". The pen is, indeed, mightier than the sword.

I agree that our "spine" is to be found only in the will of the people. Surely, the voice of the people has not been completely silenced. Just take a look at the blogosphere!

Let me take this opportunity, as well, to commend your work, your excellent essays and that of Barry Gordon on KCAA. You already know my favorite Casablanca line...so I will spare you and not repeat it now.

AngryMan said...

I don't see what the big deal is, they got a warrant. This doesn't interfere with separation of powers in any way at all.
Separation of powers is about the executive not making law and the legislature not enforcing the law. This is nothing like that at all.
All that happened here is the executive branch is carrying out an investigation. Just because he is a Congressman shouldn't keep his office from being searched like anyone else who is not in government. This is not a separation of powers issue at all.

Len Hart said...

It's not as simple as that. The Fourth Amendment reads:

".... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

—U.S. Constitution, Bill of Rights, Fourth Amendment


The eyewitness descriptions of the raid describe a fishing expedition that may very well be unconstitutional apart from the unprecedented nature of the raid and legitimate questions by Constitutional scholars with regard to the separation of powers. That it was the first such raid in American history is sufficient to raise eyebrows and questions. Moreover:

An unusual FBI raid of a Democratic congressman's office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government.

—Washington Post

damien said...

Hastert and his finances are discussed in detail at disclosedenny. The author Lukery also has a great posting on the current Congress imbroglio re Hastert. He makes several excellent points:

Larissa from Raw Story doesn't believe Hastert will be running against John Laesch in November (too many skeletons getting up and running around, plus he has pissed off Duncan Hunter.)

There was a bribe that Denny allegedly took from Abrahamoff in relation to an Indian casino. Abramoff reportedly has provided details of his dealings with Hastert as part of his plea agreement with the government which Hastert has denied. But where are these allegations going? Lukery quotes emptywheel:

"If my logic serves me and the sources are all telling the truth, it would suggest federal investigators [DOJ] know about the bribe Denny took, but they're not investigating it."

The question is why not? What's happened to the investigation against Hastert?

There is also the background of the Vanity Fair article in Sep 2005 that alleged payments or bribes were made by some Turkish lobby groups to get Hastert to defeat a congressional resolution which would have recognized the Armenian genocide. This was deep stuff, tangentially related to a whole bunch of neocon connections through Turkey and illegal arms trafficking.

Lukery goes on to revisit an excerpt from his interview with 911 whistleblower and former FBI translator Sibel Edmonds:

“…what happened was, FBI had this information since 1997. In 1999, the Clinton Administration actually asked the Department of Justice to appoint a Special Prosecutor to investigate Hastert, and certain other elected officials that were not named in this (VF) article, to be investigated formally. And the Department of Justice actually went about appointing this prosecutor, but after the Administration changed they quashed that investigation and they closed it despite the fact they had all sorts of evidence, again I’m talking about wiretaps, documents- paper documents- that was highly explosive and could have been easily used to indict the Speaker of the House Dennis Hastert. That investigation was closed in 2001, and this was around the time I started reporting my cases to the Congress.”

So the wheels of justice drive incredibly slow for people at the top.

Let's see: impeach Bush, Cheney, Hastert...who's next in line?...Ted Stevens and then Condi Rice. You never know, Condi might not even have to get elected to be President.

Len Hart said...

As usual, damien, you post raises interesting issues and is very well researched.

We're headed for truly historic times.

I think Bush will be impeached but I would hope Cheney is indicted and impeached first. That takes him out of the line of succession.

It will be helpful if felony charges are brought against Hastert even as the articles of impeachment are brought against Bush.

I am confident that Condosleazy will be shown to have been culpable in the conspiracy to lie about Iraq. Stevens is not out of the woods. A real investigation of his "Bridge to Nowhere" and other instances of GOP pork just might disqualify him from holding any federal post.

Under the GOP, the United States has become the ENRON of world governments.

damien said...

I don't know anything about Stevens. Condi lied about Iraq, for sure, and also before Congress about aspects of 9/11. I'm not really in a position to assess her performance as Sec.State but I don't think it's been that flash. Perhaps they should impeach her just for having an oil tanker named after her?

Len Hart said...

As National Security advisor, Condo most certainly participated in the policy making that lead to the war of aggression against the people of Iraq. She's a war criminal.

AngryMan said...

Nothing here seems out of line with the fourth amendment.
The police had evidence of wrongdoing and searched a probable location where additonal evidence would be.
The only issue would be if there was no cause to believe that there was evidence of the bribes and other things in his office, but I am confident that the judge issuing the warrant would have looked closely at that given the nature of the search and seizure.
I'm sure that the warrant allowed them to search everything in the office that could be used to hide evidence in.
Had this been someone's office other than a Congressman, no one would be complaining. He should not get any special treatment because he is a Congressman.
I think that you and I just see it differently.
I don't get the complaints. A Congressman is not above the law and that is what the people trying to stop the search of a Congressman's office, who was clearly engaged in illegal activity, are effectively stating.

Anonymous said...

There are two conflicting rights here: the police to conduct legally authorised searches based on probable cause, and the legislature to be free from possible interference by the executive (think McKinney). Obviously, there's a need to establish agreed procedures that will respect both rights. Not sure how you do that.

Len Hart said...

The issue is credibility and the Bush administration's war on the Fourth Amendment.

Michael Hayden and Alberto Gonzales are already trying to rewrite the Fourth Amendment. Both are trying to establish "resonableness" rather than "probable cause" as a standard.

The question is: was the so-called warrant issued based upon the the constitutional standard or Bush's bogus one. Given his credibility, it is reasonable to distrust Bush who has said that if he orders it, it's legal. The break in is not only unprecedented in American History, it smacks of a fishing expedition. I seriously doubt that anyone in this administration took the time to comply with the following language:

...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

—Fourth Amendment


Moreover...

Probable Cause .--The concept of ''probable cause'' is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define ''probable cause;'' the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. ''In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . .for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.''

—Annotations, Fourth Amendment, Findlaw

Fuzzflash said...

Great discussion. Dunno enough about Constitutional Law to contribute but am enjoying the education.
Damien, emptywheel is one of my favourite pol. writers and a formidable researcher to boot. I don't reckon the remarkable Ms. Condi will get the nod post multiple impeachments or in 2008 for two main reasons: the entrenched racism of a majority of GOP powerbrokers, and the fact that Condi wants it as bad as Smeagol coveted "my precious" and everyone can see it. Transparant grasping is a turn-off to folk who can't understand the words to well but sure know a phoney when they see one on TV.

damien said...

Fuzzflash, I don't support Condi for prez and don't see her getting there anytime. I was being facetious with my remark about the oil tanker. Les got it right: she's a war criminal. Hopefully she'll get swept away with the rest of them.

Karen McL said...

This one is bit tricky...and The News Hour had a good *debate* between two Law Profs over the *Speech and Debate* clause.

While Child-In-Chief running rough shod over the separation of Powers and torturing of our Constitution is undeniable -- this particular instance of a search and seizure (even in the Congressman's office) is not so clear cut for two reasons:

The "Speech and Debate" clause -- as you posted says "except in caes of Felony" -- and this is a Felony. And the second part states they are priviledged from "going and in and out of their respective houses" and "shall not be questioned in any other place"...but ONLY related to issues of a "Speech or a Debate" (which this is not.)

So time (again) for some good Judicial interpretation from our *interpreters* - The COURTs.

This seems like the proverbial bad facts that would be making bad laws...IF this is what Congress is finally gonna use to as their Alamo against the Bush Constitutional Shredding going since 2000.

Blech!

AngryMan said...

Well, again, I just don't see the big deal. I mean, there is evidence of the guy taking bribes and they found the 90K in his house. If that ain't probable cause, I don't know what is.
Also, the judge reviewed the police's findings and I seriously doubt that he would have issued it had there not been probable cause.
You and I just don't see it the same way. I think that the only issue will be if there was probable cause to believe that there was any evidence of his office, but that should be met because of his previous dealings through his office and the use of his office to further his very blatant corruption.

glenda said...

Thanks for the education, time well spent reading all this.
It seems there is some gray area to be found in this deabate, and yet, not; as the nature of our constitutional rights are so fragile, that once eroded, we find ourselves indanger of losing all. We should be ever vigilant in safeguarding them. Even to the point of drawing the line into the gray.

Addressing an early comment about Americans' spines being evident in the numbers of bloggers speaking up now, I agree, more are "Waking UP", but there is a difference between writing about a problem and doing something about it. Do not know how many vote or actively work for change. Thanks.

Dante lee said...

If I was Hastert - God save me from it! - i would hide in some undisclosed location instead of screaming strangely in the defense of a quite proven corrupted democratic congressman.

Wait and see when the FBI, so annoyed by Hastert's show before the cameras, decides to check a bit closer at Hastert's many trips on private jets paid with taxpayer's money.

And that's the only crime I can come up with for the moment.

Dante lee said...

from anonimous: "Not sure how you do that"

Well, it's not rocket science, the spirit of the amendment that should be written in order to polish and reconcile these laws must be sprang from something really fundamental: No one, including the politics are above the law.

An idea so clear and simple: Get to work, judge Robert!

Dante lee said...

Len hart:

The harm Bush has done to the Constitution...

I beg to differ, Len: Bush had not harmed the Constitution in any ways... Since he does not even use it!

Bush doesn't have the wit and the intelligence to even come up with an amendment that would wound the Constitution in any ways.

This is, however, one very useful amendment that I would add to our constitution:

Instead of having the next president swearing to defend the constitution, have him or her swearing in the front of this nation, during his or her inauguration: "I swear to lead this Nation by abiding strickly within the frame of the Constitution. I swear to actively defend the constitution and promote its spirit to the American people."

See, it's not enough to be sworn to defend the "God damn piece of paper", a president must be the impressario of the constitution, its promoter, its pimp.

Len Hart said...

dante lee, I agree. It's most certainly not rocket science but it might as well be for Bushies. It gets down to: who do you trust?

I don't trust Bush even on matters of black and white. For example, his appointment to head the CIA (Hayden) misquoted the Fourth Amendment and insisted he was right when it was correctly quoted to him. So, I most certainly do not trust a Bushy call on the Fourth Amendment at a time when this administration has clearly waged war on the Fourth.

I suspect the timing of the raid. Does Bush hope to get a cheap victory in SCOTUS? What if this issue goes to Bush's supreme court as one Republican predicted it would? And what if Bush gets his cheap victory because he's already packed the court? Such a decision could forever determine how the Fourth is to be interpreted. That would be tragic —especially now when the Constitution is already hanging by a thread and Gonzales is trying to "spin" probable cause into oblivion.

That's why it's a big deal.

A raid on congress is not a "big deal" if you think the executive can routinely raid an independent and equal branch of government. A raid on congress is not a "big deal" IF one buys the Bush/Gonazales re-write. It IS a "big deal", if you don't.

I don't buy Bush rewrite and I deny that he, Gonzales and Hayden have the authority to rewrite the Bill of Rights. The standard is "probable cause" NOT "reasonableness".

I wonder if it would be a big deal if the Speaker of the House ordered Bush/Cheney to turn over Dick Cheney's notes of his meetings with Enron and the other big energy companies. These papers are, in fact, duly supoenaed already. Cheney, as I recall, threw the process servers out and threatened them with arrest if they persisted. Secondly, the subpoenas meet the standard required by the Fourth Amendment: "...particularly describing the place to be searched, and the persons or things to be seized."

Bush, Gonzales, and Hayden have reduced a blatant misquote of the Fourth to a talking point. Does Bush get the benefit of the doubt? No! And most certainly not now when so much is at stake.

Len Hart said...

dante, I would support "tightening up" the Oath of Office". But, alas, it would not restrain a President of Bush's ilk. The mentality of this administration can be traced to Henry Kissenger who said:

It's not a matter of what is true that counts but a matter of what is perceived to be true.

—Henry Kissinger

Len Hart said...

Re: Karen McL who wrote: So time (again) for some good Judicial interpretation from our *interpreters* - The COURTs.

That's one of the things that bothers me. Bush has thrown down the gauntlet with regard to his ursurpation of Congress' sole authority to wage war, wide spread domestic surveillance which he both defends and denies (how is that possible?), the issue of torture called "rendition" in our Orwellian world, and his "signing statements" —his way of telling Congress and the nation that the law is what Bush says it is.

Bush seems to be spoiling for a judicial showdown. I fear that a fix is in! My memories of Bush v Gore are too vivid to desire a resolution of this issue in a court that I no longer trust to rule upon the Constitution but, upon a Bush/Scalia/Gonazales perversion of it. Certainly, the GOP seems eager to get this to SCOTUS. Too eager!

There is little downside risk for Bush. The worst that could happen is that SCOTUS will slap his wrist and tell him to make nice-nice with Congress.

On the other hand, Bush could come away with a novel interpretation of the Fourth Amendment that only Alberto Gonzales and Michael Hayden could love.

The two words —probable cause —seem more precious than ever when they are so ominously threatened. A favorable ruling for Bush could all but consolidate a dictatorship. Just two words —probable cause —stand between us and tyranny.

I highly recommend your comments at your blog: Peripetia

Above, I listed several crucial areas in which Congress has apparently rolled over for Bush. Primarily, the war making power which the Constitution gives exclusively to Congress. A reminder is timely:

The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature. —James Madison, Father of the Constitution

Rurikid said...

Ah, but if the Democrats retake both houses in November, the next in line after Dubya and Dick would then be a Democrat!

Len Hart said...

And that explains why FOX news wants the Democrats to agree NOT to impeach Bush. They suspect that Dick Cheney will be indicted. It also explains why Nancy Pelosi is being coy.

Lori Witzel said...

Found y'all through KarenMcL.

Alas, I have not the wit to contribute much meaningful here, except I'm glad to see people asking good questions and digging deeper.

However, something I saw outside a small Texas town today gave me a chortle and I thought it apt for your discussion. There's a certain special truthiness to it...

http://chatoyance.blogspot.com/2006/05/
fast-food-truthiness.html