Just Above Sunset
Volume 5, Number 10
March 11, 2007

Constitutional Law

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

Lessons Not Learned

Maybe we should make high school students learn something about constitutional law - how things are supposed to work with the folks who run the country.  But "civics classes" have pretty much gone the way of the Great Auk (or the Dodo or Passenger Pigeon if you prefer).  It's that "No Child Left Behind" business - you prepare the kids for the standardized tests in math and reading, because if they don't do well you lose your funding.  Tough Love - prove yourself or perish - leaves no room for frills.  The idea that educators should be "running scared" is the current pedagogical tune everyone is happily humming.  "Accountability" is the chorus of that number.  Things narrow of course, but a greater good is reached, perhaps.  The ability to understand what you must read and having some basic math skills are important - both help at tax time.

Still, one wonders what is lost. Last week there were the appalled attorneys - the Pentagon official in charge of all our detainees in all our facilities around the world publicly attacking "lawyers who do pro bono work for terrorism suspects" got them all upset.  He was hoping corporations would boycott the big law firms that allowed their lawyers to provide legal representation, on their own and for free, to those everyone knew were the bad guys. There was a reason, after all, that we held these people for years and years, incommunicado and without charges, and certainly without legal representation. They were guilty as sin - except for the several hundred who weren't that we released without comment - and now, with court rulings forcing the administration to prove those who remained were guilty as sin, they were getting fancy-pants lawyers from first-rate firms. This had to be stopped. So the pressure was on.

But the right to counsel - even a half-assed and bumbling public defender - is something people understand, although probably from television shows and the movies, and not from any civics class in high school.  "You don't get a lawyer" sounds a tad nasty to almost anyone, and to the historically-minded fascist, and to the literary types positively Kafkaesque.  Clueless Cully had his over-the-top moment - "Deputy Assistant Secretary of Defense for Detainee Affairs Charles 'Cully' Stimson has made himself a household name virtually overnight with a comment that is beyond idiotic."

So he finally apologized - what he said "didn't reflect his core values."  At best, one now assumes the whole thing was only "wishful thinking" - it would be way cool if we could put pressure on everyone so no lawyer would take any case where we might be challenged. He pretty much said that was his hope - and why he made the public statements - but confessed that would, really, be wrong. He was just kidding around.

On the other hand, Attorney General Gonzales is now blaming defense lawyers for "delaying justice" for the detainees at Guantanamo Bay - they keep raising legal and procedural issues and that's not what the American people want.  We all want these guys to fry - or something, but not hanging, as recent hanging in Baghdad have given that method a bad rap.  A vigorous defense just slows things down, or so he says. He raises the issue here of whether having some lawyer provide a careful and detailed defense for someone accused of VERY BAD STUFF is really a good thing at all.  This is a curious position for the nation's top legal mind. One might say it's a new way of looking at things - quite untraditional.  But you would only know the tradition if you had that civics class, and managed to stay awake.

Ah, but he wasn't finished.  There's more. In a speech, as kind of a compliment to his first observation, he then said that judges in national security cases "should defer to the will of the president and Congress" - but mostly to the president.  He said they knew nothing of national security matters and geopolitics and all that. They were just plain unqualified to rule on any matters that touched on such issues. Just who did they think they were? One might say this too a new way of looking at things - also quite untraditional. Times change.

"Big Tent Democrat" - someone who apparently didn't sleep through civics class - argues that Alberto Gonzales Should Be Impeached.

He should? This fellow (and a whole lot of others), when Alberto Gonzales was nominated to become Attorney General of the United States, opposed his confirmation -

    As the prime legal architect for the policy of torture adopted by the Bush Administration, Gonzales's advice led directly to the abandonment of longstanding federal laws, the Geneva Conventions, and the United States Constitution itself.

    … In January 2002, Gonzales advised the President that the United States Constitution does not apply to his actions as Commander in Chief, and thus the President could declare the Geneva Conventions inoperative. Gonzales's endorsement of the August 2002 Bybee/Yoo Memorandum approved a definition of torture so vague and evasive as to declare it nonexistent. Most shockingly, he has embraced the unacceptable view that the President has the power to ignore the Constitution, laws duly enacted by Congress and International treaties duly ratified by the United States. He has called the Geneva Conventions "quaint."

Now Gonzales is saying "that the Judiciary should not enforce the Constitution and the laws of the land when the President chooses to ignore his responsibility to faithfully execute the laws and the Constitution of the United States."

Really?  Well, the man did say something like that -

    Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases. In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who "apply an activist philosophy that stretches the law to suit policy preferences."

And there were those confirmation hearings -

    SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law?

    MR. GONZALES: Senator, again, you're asking me where the - hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here, very, very complicated. Sometimes the answers are not so clear. The president's position on this is that ultimately the judges, the courts will make the decision as to whether or not we've drawn the right balance here. And in certain circumstance the courts have agreed with the administration positions; in certain circumstances, the courts have disagreed. And we will respect those decisions.

    SEN. DURBIN: Fifty-two years ago, a president named Harry Truman decided to test that premise - Youngstown Sheet and Tube versus the Supreme Court - or in the Supreme Court - versus Sawyer in the Supreme Court. The Supreme Court said, as you know, "President Truman, you're wrong. You don't have the authority to decide what's constitutional, what laws you like and don't like." I'm troubled that you would think, as our incoming attorney general, that a president can pick or choose the laws that he thinks are unconstitutional and ultimately wait for that test in court to decide whether or not he's going to comply with the law.

    MR. GONZALES: Senator, you asked me whether or not it was theoretically possible that the Congress could pass a law that we would view as unconstitutional. My response was - is that obviously we would take that very, very seriously, look at that very carefully. But I suppose it is theoretically possible that that would happen. Let me just add one final point. We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.

And now he doesn't agree with that.

"Big Tent Democrat" is not happy -

    In his speech today, Attorney General Gonzales utterly repudiates the view he expressed under oath to the Senate. He now states that it is his view that a state of war is in fact a blank check for the President, that there are no limits to Presidential wartime power and that he no longer recognizes the role of the courts in our system of government regarding national security issues.

    Alberto Gonzales should never have been confirmed as Attorney General. His conduct in office confirms our judgment at the time. His speech today makes clear that he must be removed from office. He will not respect the Constitution and the laws of the United States. These views are simply unacceptable in the Nation's chief law enforcement officer. He must go.

He must? "Big Tent Democrat" was one of those nerds who actually listened eagerly back in civics class, when they had such classes.  One suspects Gonzales knows quite well no one else did. He's sure of that. He knows this nation's knowledge of these "who makes the rules" matters is hazy, at best.  This will work these days.

But then, to keep the "civics class nerds" off balance, Wednesday, January 17, Attorney General Gonzales surprised them.

Dan Eggen in the Washington Post - Secret Court to Govern Wiretapping Plan -  "The Justice Department announced today that the National Security Agency's controversial warrantless surveillance program has been placed under the authority of a secret surveillance court, marking an abrupt change in approach by the Bush administration after more than a year of heated debate."

James Vicini of Reuters - Bush won't reauthorize eavesdropping  -  "President Bush has decided not to renew a program of domestic spying on terrorism suspects, Attorney General Alberto Gonzales said on Wednesday, ending an law-enforcement tactic criticized for infringing on civil liberties."

What's up with this?

Mark Levin in the National Review is appalled -

    Is there no principle subject to negotiation?  Is there no course subject to reversal?  For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements.  This goes to the heart of the White House's credibility.  How can it cast away such a fundamental position of principle and law like this?

Who knows? The Post item has this -

    In the spring of 2005...the Administration began exploring options seeking such FISA court approval.... These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge on the FISC to consider and approve these orders.

And mildly cynical Kevin Drum at the Washington Monthly suggests what is really going on -

    First, I just have to ask: does anybody really believe that the Bush administration has been studiously beavering away on this for two years, and it's just a coincidence that they finally made this concession a mere few days after Democrats took control of Congress? Any takers on that?

    Of course, if Gonzales is telling the truth, that's even worse for Bush because it's a clear sign that the previous program was patently illegal. In fact, so illegal that it took two solid years to finally develop an alternative that a judge deemed acceptable. If the program merely needed a few tweaks here and there, it would have taken a month for a judge to approve it, not two years.

The noted attorney and author Glenn Greenwald smells a rat -

    (1) Why couldn't the new rules simply have been instituted years ago, as part of a newly amended FISA (which the administration requested and obtained from Congress in 2001 and which Congress repeatedly asked to do multiple times both prior and subsequent to revelation of the President's lawbreaking)?

    (2) If, as Attorney General Gonzales claims, they were seeking to develop new rules as early as the Spring of 2005 to enable eavesdropping under FISA, why didn't they say so when the controversy arose over their lawbreaking?

    (3) For those who claimed that our national security was jeopardized and that The Terrorists were given our state secrets when The New York Times revealed that the President was eavesdropping without warrants, didn't Alberto Gonazles just "give the terrorists our playbook" by telling them how we are eavesdropping, i.e., that we are doing so with warrants?

    (4a) Could they possible think that this "concession" (what we call "obeying the law") is going to forestall or preclude Congressional investigations into all of the eavesdropping they have been doing over the last five years without anyone watching?

    (4b) And relatedly, is this magnanimous assent to comply with the law supposed to relieve them of the consequence from their lawbreaking?

    (4c) And related further, are they now going to tell the Sixth Circuit that there is no reason to bother with figuring out if Judge Diggs Taylor was correct when she ruled that the President violated both the Constitution and the law by eavesdropping on U.S. citizens without the warrants required by law?

Good questions all.  And we are reminded that in January, 2006, current CIA Director and former NSA director Michael Hayden warned that even discussing eavesdropping issues at all helps our enemies - well, he really did. And he said the process of obtaining warrants was just too slow and cumbersome.  And now it isn't?

Greenwald -

    If you were a Bush follower, and you were told (and, of course, by definition, believed) that the President's violations of FISA were not just legal but critical to our Survival and Ability to Defeat The Terrorists, and then suddenly one day, the administration, once Democrats took over Congress, announced that they could, after all, comply with FISA, wouldn't you feel betrayed, too, as though everything the administration was telling you all along about what is vital for our security was… completely false and insincerely expressed?

    For Bush followers who kept insisting that (a) The New York Times "blew the cover" on a vital national security program and (b) our ability to stop The Terrorists would be impeded by compliance with FISA, where does this leave them?

    … For those people (as opposed to the Bush followers who support anything the administration does no matter what and cheer on any expansion of power), this is going to be a hard pill to swallow and then digest. There is simply no way to reconcile (at least honorably) the administration's prior insistence that our security depended upon eavesdropping outside of FISA with their sudden willingness to comply with it (now that the Democrats control Congress).

It's all very odd, but nothing to celebrate -

    We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law - i.e., committing felonies - for the past five years in how they have been eavesdropping on us.

    I know that everyone except for the shrill, partisan hysterics has all implicitly agreed that it's impolite and overheated to talk about the criminality involved here - "hey, whatever the President did, he had a good faith basis for doing (after all, there are lawyers who say so!) and, anyway, he just did it to protect us" - but the President has been breaking the criminal law on purpose and systematically because he wanted to.

    The fact that he might have decided he should stop - now that his loyal servants no longer control the Congress, a federal judge already ruled he violated the Constitution and the criminal law, an appellate court was about to hold arguments about that decision, and there might actually be consequences now springing from his behavior - does not excuse his lawbreaking in the slightest and must not be allowed to shield him or anyone else from accountability.

    There is no repentance here, nor (more importantly) is there any rescission of their claimed powers of lawbreaking. Quite the contrary. Gonazles' letter affirms, as one would expect, their belief that they were legally entitled to violate this law. That means (a) that they can violate it again at any future point when they want to, (b) they can violate other laws under the same theories, and (c) whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

    This "reversal" merely proves what we already knew - that there was never any legitimate reason to violate FISA in the first place, and that all of the claims about how they had to in order to stop The Terrorists were complete fiction (claims which, just incidentally, they tried to use to win the last election; if you wanted to make them comply with FISA, it meant that you loved the Terrorists).

    But this is the same President and the same administration wielding their same theories of lawbreaking and oozing disregard for any limitations on their power. This seems designed to placate anger and to make everyone believe that our crisis is over. In our gratitude that the President relented, we're all supposed to forgive and forget.

And we probably will.  That civics class stuff is boring.  The Democrats, now in power, can hold their hearing on all this. Everyone will be watching the Super Bowl while the "civics class nerds" watch that on C-Span.

This item posted - in its final version - January 21, 2007

[Constitutional Law]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik