Friday, August 18, 2006

NSA case exposes blatant GOP hypocrisy

The American right wing has said repeatedly, loudly, and belligerently that they favored strict constructionist judges, strict constructionist interpretations of the Constitution. Now that they've got a decision that is as strictly drawn upon the Constitution as any decision in recent memory, the right wing responds by trashing the judge —Judge Anna Diggs Taylor! They claim she was once married to a Democrat and she was appointed by Jimmy Carter! The Bush administration attacks on another front, lamely resorting to the 911 argument i.e., he's a "war President" and, presumably, the Constitution no longer applies. But even before 911, Bush had quipped:
This would be a whole lot easier if this was a dictatorship...heh heh heh just as long as I'm the dictator.

—George W. Bush

The spirit of the decision is summed up in a single quotation from the decision:
There are no hereditary Kings in America and no powers not created by the Constitution.

—Judge Anna Diggs Taylor

This is a strict constructionist interpretation if there ever was one. Right wing commentary that it is a victory for the far left is wrong and wrong headed! It is, rather, a victory for what's left of American democracy. Simply, the strict interpretation of the Constitution is best summed up in those very words, words worth repeating:
There are no hereditary Kings in America and no powers not created by the Constitution,
The decision continues:
It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d]...into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers....When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
The right wing, in fact, are only part-time strict constructionists. Endemically hypocritical, the right wing can be counted on to oppose the strict interpretation of the Constitution when it applies to those portions of the Constitution about which they are prejudiced and irrationally inconsistent. This is another instance in which the right wing is seen never to live up to its own standards, its own flawed and often incoherent rhetoric. The right, for example, often plays fast and loose with the Constitution if it is seen to be in the interests of corporations or the executive. Clearly —it is liberty, freedom, and the rights of individuals which suffer from this often loose and reckless interpretation of the Constitution. More from the decision:
The wiretapping program here in litigation...has undisputedly been implemented without regard to FISA violation of the Fourth Amendment.

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well....In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

The ACLU and the Center for Constitutional Rights published this statement in a news release issued today:
The President lied about the existence of the NSA Program for four years. Today's opinion proves that he was also lying when he insisted that the program was legal."
Other writers have said that this decision may provide the legal basis for the impeachment and removal of George W. Bush who has assumed powers not granted to him by the Constitution. Indeed, the decision confirms that there are " powers not created by the Constitution".

If we had wanted a monarchy, we had one! It didn't work out! Moreover, the one we had —King George III —was better than the cretinous would be King that arrogates unto himself powers he doesn't have and doesn't deserve. King George III was wrong and mad, but George Jr is merely ludicrous and slow witted.

Besides —not even Kings were above the law, as Bush claims to be. The example most relevant to us, being inheritors of the English Common Law, is that of King Charles I whom the British beheaded when he assumed powers that had not been granted him by the people and their Parliament. That is a cautionary tale.

Some important resources:

The Existentialist Cowboy


Anonymous said...

"…it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it."

James Madison, 1785

"What a life! True life is elsewhere. We are not in the world"

Arthur Rimbaud

What!!??? Bush lied? Say it ain't so. mean Saddam Hussein DIDN'T have anything to do with 9-11? Seriously, the sad thing is that there will remain a core of true believers who will keep the faith; who will remain true to that simple, good, misunderstood man who is the president. Also, there will remain a group of cynical, soulless people who like Bush where he is, because he acts as a conduit for the achievement of their goals.

The former will never believe anything bad of the president, not really. The latter never cared whether he was a liar or not.

I've read there is every chance Madame Justice Taylor's decision will be overturned on appeal, as the Sixth Circuit Court is notorious for such reversals. And that's potentially the best thing that could happen - because it will then land square in the lap of the Supreme Court. If the court agrees to hear it: aye, there's the rub - Bush could well find his scrawny presidential Texas ass in jail. Sort of skip past the impeachment, you might say.

If I were in his shoes, I'd be shaking in them plenty. Mind you, he's probably too stupid to see a reversal on appeal as anything but a victory. Nothing hurts as bad as the punch in the face you never see coming.

Anonymous said...

And does Chertoff remember why we fought England to begin with....... we do NOT need laws like Britian... it is why WE LEFT AND ESTABLISHED AMERICA

Anonymous said...

Hi Len! You wrote "...their owed flawed and often incoherent rhetoric." Surely you must have meant "own", unless I am mistaken. :)

Anonymous said...

Mark, the Supreme Court might well refuse to take it up - after all, it is largely owned by the GOP...

Anonymous said...

Too true, Vierotchka; however, Constitution-watchers were encouraged by the "Hamdan v Rumsfeld" decision, and the main sticking-point seems to be whether the Supreme Court will take it up (although that by no means guarantees a win, merely a fair fighting chance). It's true the Court is now heavy with GOP appointees, but they all owe their judicial effectiveness to a continuation of Republican rule. If their enablers are driven from office, various stumbling-blocks can be put in their way to limit their over-conservative zeal. I'm not aware of any legal instrument to actually displace a sitting judge, but I don't think any exists.

Anyway, the point of that is, fury engendered by super-controversial decisions that do not appear to balance the will of the public with the will of the executive can only be taken out on one body - the executive. The public is well aware of its limited power to affect the composition of the Supreme Court.

You're right, though, the biggest danger (if the decision is reversed on appeal, which might not happen) is that the Supreme Court will come out with some codswallop about conflict of interest, and refuse to hear it. I'm sure the possibility of receiving the case is foremost in the minds of all the Supremes, but none more than Samuel Alito and John Roberts. In fact, here's a happy thought - they may discreetly influence the Circuit Court not to overturn the decision, thereby avoiding personal involvement.

Meanwhile -

- couldn't you just feel this coming? Nothing is so predictable as dead certainty.

Unknown said...

As I've written earlier, Mark, Bush seems to be spoiling for a Constitutional showdown. Is the fix already in?

The tragedy for the nation would be a 5-3 decision that strikes down Taylor's decision.


Anonymous said...

It is for precisely that reason that I believe the Supreme Court is hoping it will be somehow settled before it ever reaches that high. I daresay the majority feels as you do, and the Supreme Court likes to be seen as having dispensed justice rather than toadied to the president's will. Bush's unpopularity being assumed a constant between now and then, I don't think the Supreme Court wants to be regarded as rendering a decision diametrically opposed to public will.

I know an appointment to a judgeship is not a popularity contest, but much of the Supreme Court's power rests in its ability to render decisions absent the influence of political pressure, and based on what is just and correct within the limits of what they know about the issue.

A Supreme Court perceived to be steered by the president will be thought, and perhaps publicly ridiculed, as merely the judicial arm of the White House.

I believe those premises are the reason the president and his cronies are trying to do an end-run around the court on Iraq, by rewriting the law so they can't be later prosecuted for war crimes. It's a different issue, but I believe it illustrates Bush's uncertainty about his ability to manipulate the court overall.

I think "Hamdan v Rumsfeld" was a rude shock. Mind you, Roberts recused himself from that issue. He could still cast the deciding vote here. However, as I suggested, I don't believe he wants a lifetime of unpopularity and scorn as Bush's creature - he's a young man, and has many years ahead as Chief Justice, under a variety of administrations.

Unknown said...

I believe those premises are the reason the president and his cronies are trying to do an end-run around the court on Iraq, by rewriting the law so they can't be later prosecuted for war crimes.

Bushco will be remembered for its various ex post facto rationalizations justifying the attack and invasion that had already begun but upon a different, an earlier rationale. Likewise, they have sought to change laws that would exonerate them after the crime had already been committed.

I think it is here that they are in for their greatest disappointment. The Constitution dispatches Bushco logic in a single line:

No bill of attainder or ex post facto Law shall be passed.

There are no significant arguments about the language here. Unlike the "Second", there are no modifying clauses; no ifs, ands, or buts. This line states precisely what it means.

Examples that come to mind are laws passed by tyrannical regimes to prosecute people for acts that were not crimes at the time but, rather, "outlawed" ex post facto. The reverse is also true. It is simply absurd to exonerate —as a matter of law —someone for acts that were clearly illegal at the time of their commission. Pardons or amnesty is another matter altogether and is not analogous. What Bush seeks to do is nothing less than the institutionalization of utter lawlessness. He wants to break any law he wants at any time and simply make it legal after the fact.

This is the height of absurdity and betrays his criminal intent. Spread the word.

Anonymous said...

Last night I had a wonderful dream. My wife was in it, I think mostly to forestall the de rigueur 40 virgins. We drove around in a new red Lexus coupe, and the tan leather seats were soft as butter. Every restaurant had my favourite foods on special, but I don't remember paying for anything anyway. We practically swam in Demererra rum.

On our way back through town to catch a jazz concert, featuring musicians I was pretty sure were dead, I noticed there was something big going on at the courthouse, so we stopped for a moment to check it out.

George Bush was being tried for war crimes, with Jack Murtha as prosecutor.

And he was acting in his own defense.