It’s only Congress

January 18, 2006

The ultra-conservative Washington Times ran an interesting item today on legal scholars’ take on Bush’s warrantless-search program. The piece, not surprisingly, gave pretty significant attention to the president’s defense, but did a pretty fair job highlighting GW’s Jonathan Turley’s perspective, including his belief that the controversy “is one of the most serious constitutional crises that we’ve ever faced in the country.”

But the Times included one law professor’s point of view that I had to read three times just to make sure I wasn’t seeing things.

But John C. Eastman, a law professor at Chapman University in California and director of the Claremont Institute Center for Constitutional Jurisprudence, said the covert program does not violate federal law.

“Even if Congress didn’t authorize wiretapping, and even if Congress specifically prohibited it, the fact that this is the exercising of the commander in chief’s executive power to thwart an attack on the United States makes it not just within the president’s constitutional authority, but … his constitutional responsibility,” he said. (emphasis added)

I realize that the Claremont Institute is a leading far-right think tank, so it’s inclined to support the White House line, but the director of its constitutional law program apparently believes that the president can take actions expressly prohibited by Congress. In fact, the president has to ignore specific prohibitions.

Remember in junior-high civics class when you learned that Congress writes the law and the president executes the law? That’s pre-9/11 thinking that helps the terrorists.

Fortunately, there are still some conservatives who refuse to go along with such a nonsensical approach.

Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President’s authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).

Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.

Of course, it’s worth remembering that they’re not the only conservatives with concerns. The Claremont Institute’s lawyers may see no limits on presidential power, but they’ve hardly convinced all of their colleagues on the right.

My, my…Grover Norquist of all people is “concerned”?

Norquist and these others were the architects and enablers of this administration. They were insiders (arguably, overlords). Everything that transpired to date was according to their design.

The only explanation I can think of for this sudden turnaround is not libertarian principle (let alone conscience) but political self-interest. They must recognize now that the GOP is in critical condition and that to take the next step toward authoritarian government would be to risk putting all that power into the hands of a Democrat who likely would have a few scores to settle with those who cozied too closely with the Republicans–a reckoning that might be extraordinarily brutal if Presidents in fact are above the law. And so now they slam on the brakes.

They wouldn’t be doing this if they felt comfortable with their political situation. I guarantee that their stance would shift 180 degrees if they thought their party had a lock on power.

  • You know, for a bunch of people who are so hell-bent on quoting the “Framer’s original intent”….I find it odd that they are able to read so much into the Constitution. Here’s what it says about being Commander in Chief in Article II, Section 2:

    “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;…”

    That’s it. Now, if someone could please point out to me where it says anything about the President’s ability to pick and choose which laws he will follow during wartime??

  • “…but the director of its constitutional law program apparently believes that the president can take actions expressly prohibited by Congress. In fact, the president has to ignore specific prohibitions.”

    Even worse, he seems to indicate the President can take these actions even if expressly prohibited elsewhere by the Constitution and its Amendments, as if the Commander in Chief power trumps everything. Man, had I known I could get a gravy job just making shit up…

  • Maybe we should start calling Bush “Caligula” after the mad Roman
    emperor of the lst century AD. He hasn’t named his horse conusul yet
    or had temples built in which to offer incense to his image but he’s
    getting close. Bush seems to think that HE knows best even when
    it comes to interpreting the US Constitution. He has all but made himself
    a king (or emperor) with his abuses of power and outrageous actions.
    He is using the military for his own nefarious reasons while at the same
    time nickel and diming ordinary soldiers, who are paying the real price
    for the war in Iraq.
    Some of the smarter Republicans are starting to wake up to what a
    disaster this new “Little Boots” is becoming. The Medicare Part D
    debacle may just be the thing to drive a wedge between the GOP
    and American voters. Even that little rodent Grover Norquist is
    sensing the ship is sinking and it is time for the rats to disembark
    before it goes under the waves. (How else to describe his “disloyal”
    stance?)
    The original Caligula came to a bad end ( at the hands of his own
    soldiers among whom he had once been their darling). Our current
    Caligula is moving closer to the edge of complete destruction every day.
    If I were him I’d watch out for his own GOP leaders who might decide
    it’s time for a change of leadership and hasten his departure from the
    throne. But will they give us a Claudius or a Nero?

  • Totally agree, Mr. Flibble. Grover Norquist’s only motivation for this is a desperate attempt to lower the temperature of the people coming after him in the Abramoff case by any means possible. May he be strung up by his thumbs and mocked without mercy in the public square.

    And Tony C., I would say that Dubya has already appointed so many horse’s rear-ends to so many positions in government that he makes Caligula look like a rank amateur. 😉 And with so much of the military turning against him at last, he may wind up with a similar if somewhat less bloody end. We can only hope.

  • Nice to see, on PRCB’s web page, this statement:

    “The Patriot Act in its current form grants the government many unbridled powers at the expense of some of Americans’ most fundamental freedoms, especially their Fourth Amendment right to privacy.”

    Catch that? “Right to privacy.” They found it after all, right where the liberals always said it was.

  • I’d be pissed if I was paying tuition to Chapman University and I (or my kid) was learning this crap.

    Re: Grover- this just makes me laugh. Are you kidding me? He’s worried that he won’t be able to scurry his fat doughy ass to the lifeboat in time before the Bush Titanic goes down. And maybe he’s even a little worried about what the NSA has picked up on him….. (And, o if there is a God in heaven, please let JackOff be wearing a wire, and take them all down!)

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