As explained in this letter:
(FISA) and the Constitution's separation of powers."
Fri Aug 3, 2007 20:14

(FISA) and the Constitution's separation of powers."

As explained in this letter:

In essence, there are three levels of Executive power. The greatest, as conservative, federalist society member [Robert] Levy points out (again, talking specifically about war powers ) are when the President acts pursuant to an act of Congress. The lowest is, of course, when the President acts in contravention of a direct act of Congers. The middle ground is when the President acts in the absence of any act of Congress. (It is here that items become "nebulous," and reasonable interpretations differ.)

For the Executive branch to act in direct contravention of Congress in the third category, it needs to have a compelling reason. The reason offered -- that the Constitution states that the President is Commander in Chief, and that, in essence, "the President thought that it was a good idea" (when we are talking about operational detail over United States citizens, that raises additional constitutional issues to boot, no less) -- is no different a reason than contending that the Constitution does not apply in war time.

To quote from Levy's Judiciary Subcommittee testimony; "The executive branch cannot, in the face of an express prohibition by Congress, unilaterally set the rules, execute the rules, and eliminate oversight by the other branches."

Under our Constitution, Congress has the duty and power to legislate, and the executive branch, the duty and power to execute and administer the law. Thus, for a reason to be sufficiently compelling, the law itself would have to be unconstitutional, or otherwise directly conflict with the President's capacity to operate as "Commander in Chief."

To argue, implicitly, that deciding to violate a law requiring a warrant to spy on American citizens somehow infringes upon that capacity, is equivalent to arguing that anything the President were to decide is somehow relevant to "fighting a war," would likewise infringe upon that capacity. If not, we'd be reduced to squabbling over what is and is not a good idea. And this is precisely what Congress is for. If the President could nevertheless override Congress on matters of Legislation, then the President by definition would have the power to determine "what is, and isn't," a good idea, bringing us back to the conclusion that, under this bizarre argument, the President would have absolute legislative authority with respect to anything that he deemed relevant. (This does not even consider the separate issue of acting clandestinely.)

Thus, in essence, not only would the President have executive authority (the authority and duty to "see that the laws be faithfully administered, under Article II, Section 3) but both legislative authority and the ability to ignore both existing and subsequent legislation. This would, as noted [herein], render the most fundamental purpose of the Constitution -- the separation of powers clause -- essentially null and void.

It is also repeatedly suggested that the AUMF resolution of 2001 supersedes FISA (this argument has been made repeatedly by Attorney General Gonzales, for example, and offered as one of “two” sides to the “controversy,” in most media accounts of the issue, MSNBC's visit with Nixon White Counsel John Dean not withstanding ).

First of all, this is illogical, solely based upon the fact, as noted, that the U.S. Patriot Act amended FISA, and came after the AUMF resolution (October 26, v. September 14, of 2001). But more pointedly, the argument that the AUMF, unlike any other piece of legislation in our 200 plus year history, somehow authorizes violations of other laws not in direct conflict without otherwise expressly or implicitly so stating, from a legal perspective, is, to put it bluntly, absurd. (Conservative commentator George Will made this point aptly, when he very sardonically suggested that perhaps in future legislation, Congress "might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.") Here's how conservative constitutional studies fellow [Robert Levy, cited above] put it in testimony before the Senate Judiciary Committee:

"A settled canon of statutory interpretation directs that specific provisions in a statute supersede general provisions -- lex specialis derogat legi generali. When FISA forbids 'electronic surveillance without a court order' while the AUMF permits 'necessary and appropriate force,' it is bizarre (emphasis added) to conclude that electronic surveillance without a court order is authorized."

Conservative George Will satirically mocked it as ridiculous. Conservative Levy called it "Bizarre." The more liberal New Republic labeled it "absurd."

Yet it is the exact Argument that Attorney General Alberto Gonzales has been repeatedly making to the Nation, and that the media has been duly repeating as if it is just one of two reasonable sides to the "debate."

Listening to the coverage of this rather critical issue in the media -- where, again, it is often merely simplified down to some version or another of, “one side said the Executive Branch was authorized, the other side says it was not” -- doesn’t exactly shed much light on the issue. Let alone one that's central to what our democracy is. But, of course, a democracy is only as strong as the quality of its mainstream information. And once again, the mainstream information has been poor. cites, and further analysis. direct media contact links


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