A very conservative, strict constructionist is blasting Bush (Wash Times)

[kpete]

. . . or outside the law?
By Bruce Fein
December 28, 2005


President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "he president, through the attorney general, may authorize electronic surveillance without a court order... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."

A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution.

As Youngstown Sheet & Tube instructs, the war powers of the president are at their nadir where, as with the NSA eavesdropping, he acts contrary to a federal statute. Further, that case invalidated a seizure of private property (with just compensation) a vastly less troublesome invasion of civil liberties than the NSA's indefinite interception of international conversations on Mr. Bush's say so alone.

Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

http://washingtontimes.com/commentary/20051227-092503-6702r.htm#

[tsuki]

1. Could the Reverend Moon be afraid of who is tapping him?

[formercia]

12. Probably not right now, but when a Democratic

President is sitting in the White House...Think Hillary, a freeper's worse nightmare.

[pinto]

2. Interesting comments from a conservative, constitutional lawyer. More:

<snip>

Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator. Claims to inherent authority to break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II, for example, have not been ruled out if the commander in chief believes the measures would help defeat al Qaeda or sister terrorist threats.

Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."

The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war: "The president is to be commander in chief of the Army and Navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to declaring war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature."

President Bush's claim of inherent authority to flout congressional limitations in warring against international terrorism thus stumbles on the original meaning of the commander in chief provision in Article II, section 2.

<end snip>

http://washingtontimes.com/commentary/20051227-092503-6702r.htm#

[MN ChimpH8R]

3. Fein is a hard core right winger

for him to be saying this is most interesting.

[politicaholic]

4. What a joke, he still gives Bush an out...

"Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment."

That's like saying:

The serial killer should cease in killing people until murder becomes legal or face imprisonment.

Laughably velvet whipped. Scolding into inaction.

[pinto]

5. Agree with you somewhat. His political message waffles compared to his

legal stand. And he may have an astute political point - take it to Congress for legislation (which Bush might well win with some bruises) or face possible impeachment (which Bush might well win but shred the Repubs in the process).

Of course as you point out, he seamlessly overlooks impeachable acts already committed by the Administration.

Politically, the past gets forgotten routinely. Legally, though, the past is subject to a statute of limitations, and in this case, impeachment is an option as long as Mr. Bush holds office. We ought to remember this.

Thanks for your post.

[Gabi Hayes]

6. this is probably exactly what they want:

the 2006 version of the Nazi Enabling Act of 1934, IIRC

all the polls show massive support by the sheeple for domestic spying

for them to have this codified would be the natural, final solution to that pesky bill of rights

[pinto]

7. And if they choose to go the Congressional route under the cover of

"9/11, security, terror, 9/11" we're apt to have a formidable PR battle on our hands. It's one I feel we need to win, hands down. And we ought to include this author's own thesis, among all the rest...the long term Constitutional argument has to trump the short term political argument.

You make a good point. When spying on Americans is posed as protecting Americans the lines get blurred. :crazy:

[SammyWinstonJack]

9. Posing is all they are doing, in reality this "administration" hasn't

really done anything that would protect us from another terror attack, have they? They haven't protected our borders, they haven't protected our harbors and on and on and on. What they have managed to do is convince a portion of Americans that since there hasn't been an attack since 9/11, that they have in fact "protected" us. In their case, words speak louder than actions apparently. :crazy:

[pinto]

10. Check out this earlier GD thread, DHS fails to meet 33 stated goals:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5701651

I'd be fired right about now, if I had this performance record.

(ed for spell)

[SammyWinstonJack]

11. Pretty much what I figured. Actually I thought it might be worse.

I guess Pinhead** really can fool most of the people, most of the time and HE might not "get fooled again" but some of us will. :banghead: Well as we all know, lying about consensual sex is a far worse threat to our nation security than actually NOT doing anything to protect us, while raping the US Treasury, to pay for doing nothing. :sarcasm:

[greiner3]

8. So if a rag like the times;

Is against b***, then what's the hold up of impeachment?