A Spork in the Drawer

Legislator-In-Chief

Gail Collins picks up something I've been thinking about for a few days:

John McCain is not actually running for president. He’s running for Senate majority leader. All his passion is directed at defects in the legislative process. He’s been a military man or a senator for virtually all of his adult life, and listening to him talk, you get the definite impression that the two great threats of the 21st century are Islamic extremism and the appropriations committee.

McCain goes on and on about how when he's president he will reform Congress. But there's one small problem with this: The Bully Pulpit aside, the president has zero, and I mean zero, power to tell Congress how to conduct its business. It's called "Separation of Powers."

Then again, maybe we're back to the whole "Unitary Executive" thing.

Perhaps somebody in the "news" media should ask him about this, yes?

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One Last Chance

God save us:

Interviews with the two pastors [Palin] has been most closely associated with here in her hometown — she now attends the Wasilla Bible Church, though she keeps in touch with Mr. Riley and recently spoke at an event at his former church — and with friends and acquaintances who have worshipped with her point to a firm conclusion: her foundation and source of guidance is the Bible, and with it has come a conviction to be God’s servant.

How about following the Constitution, Sarah? The actual Constitution, I mean, not the fantasy one that establishes the United States as a Christian Nation.

Haven't we had enough of this shit?

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Huh

It would appear that maybe St. John isn't a "natural-born citizen" and thus is illegible for the Presidency.

That said:

Several legal experts said that Professor Chin’s analysis was careful and plausible. But they added that nothing was very likely to follow from it.

“No court will get close to it, and everyone else is on board, so there’s a constitutional consensus, the merits of arguments such as this one aside,” said Peter J. Spiro, an authority on the law of citizenship at Temple University.

When, exactly, did the basic mechanics of the Constitution become optional?

And is the 22nd Amendment now optional? Because that would, y'know, be bad.

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Honestly...

In reference to the absurd Baker-Christopher recommendations on just who gets to declare war in this country the criminally addlepated David Broder asks:

The Founders left a ton of confusion about a pretty important question: Who has the authority to make war?

Ok, again, Article I Section 8:

The Congress shall have power to to declare war

Got that? Again:

The Congress shall have power to to declare war

Now in fairness, Broder, like Baker and Christopher, gets confused when you put this up against the whole "The President shall be commander in chief of the Army and Navy of the United States" thing but that doesn't say anything about the president having the power to declare war.

So just who does have that power?

The Congress shall have power to to declare war

One more time for those in the back rows:

The Congress shall have power to to declare war

Apparently, spending time at Georgetown cocktail parties rots the brain. Maybe it's the canapés. Somebody should check.

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It's Official

The Fourth Amendment is effectively repealed.

See: Greenwald and Lessig.

Obama voted Yay, Clinton voted Nay (am I feeling a bit of buyer's remorse? You betcha...but it was a safe vote for Hillary), McCain, as usual, didn't bother to show up.

While drinking heavily seems a good idea I'd probably just turn violent so...

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The Powerful And Clueless

Former Secs. of State Warren Christopher and Bush Family Conigliere James Baker have an idea:

The report calls for the passage of a new War Powers Consultation Act early in the next Congress. It would require the president to consult with a new joint congressional committee before deploying troops to a "significant armed conflict" -- defined as lasting longer than one week -- and would mandate regular consultation thereafter. Response to a terrorist attack and covert actions would be exempted from its requirements.

The bill would also require a congressional vote approving military action within 30 days of its inception. If approval was not given, any lawmaker could introduce a "disapproval" resolution that would have to be voted on within five days. If it passed, the president would have to comply or veto the measure. If lawmakers could not override a presidential veto, Congress's remaining option would be to deny funding.

Baker notes that the Constitution gives Congress alone the power to declare war.

That sounds like a viable "War Powers Act" to me.

Astoundingly, out of the hundreds of wars and significant military actions this nation has undertaken Congress has declared war only five times: 1812, Mexican, Spanish, WWI, and WWII.

Since presidents of all parties have ignored the Constitution in this matter - and Congress has refused to do anything about it - why would yet another War Powers Act change anything at all?

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The End Of The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Tomorrow some corrupt and/or cowardly Senate Democrats - including the leader of the party - are going to virtually eliminate the above section of the Constitution. It was nice while it lasted, huh? See Glenn and Jane for the details of this mind-boggling destruction of the Rule of Law.

Glenn:

To initiate and fund our new campaign, we have teamed with the individual who was behind the innovative and extraordinarily successful Ron Paul "money bombs" -- Trevor Lyman, along with Rick Williams and Break the Matrix -- to plan an "Accountability Money Bomb" for August 8. That is the day in 1974 when Richard Nixon was forced to resign from office for his lawbreaking and surveillance abuses. That day illustrates how far we have fallen in this country in less than 35 years, as we now not only permit rampant presidential lawbreaking and a limitless surveillance state, but have a bipartisan political class that endorses it and even retroactively protects the lawbreakers.

If you wish to join the coalition click here and if you have a blog post a logo from here - I have. You can also donate here.

In addition, today's print edition of the Washington Post features this ad in the A-section:

(Hi-res .pdf (suitable for printing) can be downloaded here.)

It's only the Constitution that's being killed.

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If It's Election Season...

...it's time for the Republicans to play the bigot card.

The proposed Amendment XXVIII to the Constitution:

Section 1. This article may be cited as the `Marriage Protection Amendment'.

Section 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

While it's not going to even get out of Congress it's worth mentioning because of two co-sponsors: "Diaper Dave" Vitter and Larry "Wide Stance" Craig.

GOP hypocrisy knows no bounds.

Meanwhile in a likely effort to help St. John's flailing campaign the great state of Arizona is putting a ballot initiative up for a vote that would ban marriage amongst Teh Gaiz. This would be the same initiative that was voted down in '06. Try, try again, I suppose.

See, if the Republican Party had a platform that most people could support they wouldn't need to engage in such silliness.

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We Have Yo Destroy The Constitution To Save It

Sen. Lindsey Graham (R-Closet) has an idea:

Graham said he'd explore the possibility of drafting a constitutional amendment "to blunt the effect of this decision."

[...]

Graham's talk of a constitutional amendment indicated how little room the Supreme Court has left him, Sen. John McCain — the presumptive Republican presidential nominee — and Bush in their long-standing effort to create a separate trial system outside the federal courts for alleged terrorists.

While amending the Constitution to get rid of that pesty Habeas Corpus perhaps Lindsey could eliminate annoyances like the First, Fourth, Fifth, and Sixth Amendments. And regular elections. I mean, how can any Great Leader get anything done if he has to submit to the will of the people now and then?

And Graham belches out this howler:

"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said.

Really? Here's just one example:

Those German and Italian POWs held in over 500 camps across the U.S. were sent out to harvest and process crops, build roads and waterways, fell trees, roof barns, etc. In the process, they formed significant, often decades long friendships with “the enemy” and under went considerable changes as individuals and as a group—thus fundamentally influencing post-war German values and institutions, as well as American-German relations. Many even emigrated to the U.S. after the war.

Are there any lies too egregious for a Republican to spread?

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A Surprise

By a 5-4 decision the Supremes get one right:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court's liberal justices were in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Expect to hear the phrase "the Constitution is not a suicide pact" a lot over the next few days. Indeed, we have Fat Tony:

Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."

Yes, if we just do away with that pesty Constitution all would be fine.

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"I Would Prefer Not To"

Torture Yoo gets all passive-aggressive:

The House Judiciary Committee has asked John Yoo, a former OLC deputy who wrote many of the counterterrorism memos at issue, to testify at a hearing next month. Yoo, now a law professor at the University of California at Berkeley, has indicated he would prefer not to appear.

Who does he think he is, Bartleby the Scrivener?

Meanwhile, AG Michael Mukasey tries to reassure Sen. Dianne Feinstein:

Under sharp questioning from Sen. Dianne Feinstein (D-Calif.) at an Appropriations Committee hearing, Mukasey said that the "Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime," even though the memo by the department's Office of Legal Counsel had concluded otherwise.

Experience dictates that one should assume that Mukasey is lying. It's what the whole rotten lot of them do.

And, yes, it's ironic that Feinstein was doing the questioning.

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Redacting The Constitution

Austin Cline:

We don't have a Congress that is quite craven enough to pass a law giving Bush dictatorial powers, but we have a president arrogant and authoritarian enough to ignore the parts of the laws he doesn't like, to amend them to his liking, and to interpret them in whatever manner is most consistent with his desire to act without checks, balances, or oversight. How so? According to a footnote in a John Yoo memo, his office had concluded that "the Fourth Amendment had no application to domestic military operations."

[...]

Would it be inappropriate to point out that Adolf Hitler at least had the decency to obtain explicit legislative approval before his Machtergreifung? In comparison, George W. Bush has moved in a manner that depends more on legal sophistry than the mechanisms of real government. Then again, Hitler had Carl Schmitt whose arguments on behalf of authoritarian government were at least based on serious legal reasoning and political philosophy — that's part of what made his writings so dangerous. Bush only had John Yoo, whose arguments on behalf of authoritarian government can't be described as even remotely serious.

Unfortunately, I have little confidence that either Barack Obama or Hillary Clinton will voluntarily give up these powers. And St. John...forget it.

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Pumping Gas In The Imperial Valley

Pierce on "Torture" Yoo:

He stands -- behind a podium at a respected law school -- revealed as the almost perfect apparatchik, a guy who would have found a way to make the trains to the internment camps run on time...He should be kept away from the law for the same reason we keep Charlie Manson out of the cutlery drawer. He should have been the story but, of course, Barack Obama went bowling.

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Brutal

La Belle Dahlia on on the Democrats and PAA:

The cliche holds that we are always fighting the last war. I disagree. For the last seven years, congressional Democrats have been fighting the next one: the war perennially set to erupt if they don't deliver whatever the president asks of them immediately. Time and again, they've been rendered so terrified by White House threats about imminent terrorist attacks that they have caved on issues ranging from detainee rights to secret surveillance to torture. And every time they've caved, it's under the threat that if they withhold from the president extra powers (ones that he's often already seized in secret), terrorists will mass against us instantaneously, and they will be blamed.

I've no doubt that when the 15-day "snooze" expires Harry and Nancy and the rest of the invertebrates of Congress will give George and Dick everything they want - including immunity for crimes committed by the Telcos.

Future historians are going to look on this period with awe and disgust.

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Article 6, Section 3

[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.

Shorter Tim Russert: I'm now going to administer a religious test.

I'm rapidly approaching the point where I start buying cheap gin by the case so I can stay well and truly pickled until the elections are over.

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17 September, 1787

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Disgraceful

A clearly angry EJ Dionne has ferreted out the details of the Democrats' shameful surrender last weekend:

Several members from swing districts -- including Reps. Heath Shuler of North Carolina and Patrick J. Murphy of Pennsylvania -- expressed openness to having Congress stay in town to fight if important constitutional issues were at stake.

But the moment passed. Even some very liberal Democrats worried about the political costs of blocking action before the summer recess. That Saturday night, the House sent the president a bill that, as a disgusted Rep. David Wu (D-Ore.) put it, with just a touch of exaggeration, "makes Alberto Gonzalez the sheriff, the judge and the jury."

Most Democrats opposed the bill, but 41 (including Shuler) voted yes, allowing it to pass. (Murphy remained passionately opposed.) The one Democratic victory: The legislation expires in six months, meaning the debate will resume this fall. But Rep. John F. Tierney (D-Mass.) warned his colleagues that "when you give up your rights under the Constitution, it is not likely you are going to regain them."

Tierney is absolutely correct. Does anybody actually believe that in six months - that would be six months closer to the elections - the political pressure to "be tough" will be any less? And it should go without saying that the only way the Democrats can avoid being called "soft on terrorism" is to completely disband as a political party. Nancy Pelosi and Harry Reid could personally go to Pakistan and kill bin Laden and the Republicans and their shills in the "news" media would find a way to accuse the Dems of being weak.

Continuing:

The episode was the culmination of a shameful era in which serious issues related to national security and civil liberties were debated in a climate of fear and intimidation, saturated by political calculation and the quest for short-term electoral advantage.

Politically, Republicans won this round in two ways. They got the president the bill he wanted and, as a result, they created absolute fury in the Democratic base. Pelosi has received more than 200,000 e-mails of protest, according to an aide, for letting the bill go forward.

It would be one thing if the Republicans won a hard-fought battle but in this situation the Dems didn't even show up for the fight.

Dionne concludes:

The entire display was disgraceful because an issue of such import should not be debated in a political pressure cooker. It's not even clear that new legislation was required; Holt, for one, believes many of the problems with handling interceptions involving foreign nationals are administrative in nature and that beefing up and reorganizing the staff around the FISA court might solve the outstanding problems.

But if legislation was needed, there were many ways to grant necessary authority while preserving real oversight. The Democrats got trapped, and they punted. The Republicans have never met a national security issue they're not willing to politicize. This is no way to run a superpower.

If someone asks me why they should vote for the Democrats the best I would be able to come up with is the alternative is worse.

But I wouldn't say it with much conviction.

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But Let Me Say This

My understanding is that Alberto Gonzales spent the day perjuring his smarmy little head off.

You know what?

I. DON'T. CARE.

When the Democrats grow a pair and open impeachment hearings rather than sending more Sternly Worded Letters™ then I'll start to care.

Until then screw the Democrats.

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We're Dying

If this is allowed to stand our Constitution is meaningless:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

[...]

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

[...]

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "What this statement is saying is the president's claim of executive privilege trumps all."

Benjamin Franklin was asked, "Do we have a Republic or a monarchy?"

Franklin replied: "A Republic, if you can keep it."

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More Habeas Corpus

WaPo editorial:

Armed Services Committee Chairman Ike Skelton (D-Mo.) says he favors the reform. At a hearing on Guantanamo last month he said he thought Congress acted unconstitutionally in denying prisoners habeas. But Mr. Skelton didn't include the amendment in the draft bill he circulated to his committee. His staff says he concluded that the measure should be contained in a stand-alone piece of legislation, which he is said to be preparing. That strategy is at odds both with recent legislative history and with the judgment of most congressional observers: Mr. Bush, they point out, won't hesitate to veto a bill on habeas corpus but might be induced to accept the reform if it were attached to one of the annual defense bills. That is how Congress managed to force the reform of prisoner treatment known as the McCain amendment two years ago.

Other congressional sources cite another reason Mr. Skelton is holding back: He and other Democratic leaders do not want to risk complicating the passage of the defense bill on the House floor. Worries about such political scrapes didn't stop those leaders from passing a defense spending bill last month containing a polarizing attempt to micromanage troops in Iraq. Nor have House Democrats hesitated to pick fights with the administration over such issues as whether the hiring and firing of U.S. attorneys was properly managed, or whether Karl Rove and Condoleezza Rice can be compelled to testify about their actions as presidential advisers. Why not fight for the right of habeas corpus? Maybe because it's not really a priority for the Democrats, after all.

Greenwald:

But none of that even matters. The right to be free of arbitrary executive imprisonment is -- and, since the founding of America, always has been -- a defining and distinguishing attribute of our country (notwithstanding shameful instances in our past where that right has been denied). All citizens -- including, actually especially, those sent to represent the people in Congress -- have an obligation to protect that right from government officials who seek to abolish it.

Having disgracefully abdicated that responsibility back in September because they wanted to win the midterm elections, Democrats -- now that they have won -- can cleanse their historic sin only by committing themselves, not symbolically but in actuality, to the restoration of habeas corpus. Whether they are willing to do so will speak volumes about their true character and about whether their November victory will result in anything other than some televised hearings. If Democrats are too afraid even to take a stand against the Bush administration in defense of this centuries-old core American liberty, it is impossible to imagine any even minimally risky stands they are willing to take.

This issue is as important as it gets. The right to not be arbitrarily seized off the street and imprisoned without recourse might be the oldest right - and it is a right despite what Abu Gonzales says - dates to 1215. And now, suddenly, it is a right we can't afford? Nonsense. Getting rid of Habeas is nothing more than a power-grab by the authoritarians and a fearful response by the bed-wetters.

If we can't defend this one issue then we might as well give up the whole Constitution.

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Habeas Corpus

NYT editorial:

President Bush turned habeas corpus into a partisan issue by declaring that the prisoners in Guantánamo Bay, even innocent ones, do not deserve a hearing. Lawmakers who objected were painted as friends of terrorists.

But let’s be clear. There is nothing “conservative” or “tough on terrorism” in selectively stripping people of their rights. Suspending habeas corpus is an extreme notion on the radical fringes of democratic philosophy. As four retired military chief prosecutors — from the Navy, the Marines and the Army — pointed out to Congress, holding prisoners without access to courts merely feeds Al Qaeda’s propaganda machine, increases the risk to the American military and sets a precedent by which other governments could justify detaining American civilians without charges or appeal.

[...]

We hope habeas will be added to the bill by the committee, or that other sponsors of measures to restore the ancient right, including Representatives John Conyers Jr. of Michigan and Jerrold Nadler of New York, and Senators Christopher Dodd of Connecticut and Patrick Leahy of Vermont, will find ways to bring their bills to a vote.

The Democratic majority has a long list of wrongs to right from six years of Mr. Bush’s leadership. We are sympathetic to their concerns about finding a way to revive habeas corpus that won’t die in committee or be subject to a presidential veto of a larger bill. But lawmakers sometimes have to stand on principle and trust the voters to understand.

This is one of those times.

Stoller:

I'm told there's an outside shot that House Democrats on the Armed Services Committee will put a restoration of habeas corpus into the Defense Department Authorization Bill being marked up tomorrow and Thursday. Apparently Chairman Skelton has the votes but there are concerns about whether to have this fight now.

Now's the time to let them know that this is something that we elected them to get done. There's a bit of fear that this vote could put freshmen members at risk, though I don't really know why as the data on this isn't compelling and the attack ads just didn't work in 2006.

The most important members to contact are Ike Skelton, antiwar freshmen, and members of the Armed Services Committee. Pelosi and Hoyer would be good too. Each link below goes to that member's email form, and their phone numbers are to the right. I've only included Democratic members of the committee since the decision on whether to make a vote will be made within the party - the full list of Armed Service members is here.

Call and ask them to restore habeas corpus and put it in the Defense Department Authorization bill. This is an especially important message to deliver to freshmen members who have the moral credibility of having been in elected in 2006 in the teeth of Republican fear-mongering.

Leadership
Speaker Nancy Pelosi, (202) 225-4965
Majority Leader Steny Hoyer, (202) 225-4131

Armed Services Committee Democrats
Ike Skelton, Missouri, Chairman, 202-225-2876
John Spratt, South Carolina, 202-225-5501
Solomon P. Ortiz, Texas, (202) 225-7742
Gene Taylor, Mississippi, 202 225-5772
Neil Abercrombie, Hawaii, (202) 225-2726
Marty Meehan, Massachusetts, (202) 225-3411
Silvestre Reyes, Texas, (202) 225-4831
Vic Snyder, Arkansas, 202-225-2506
Adam Smith, Washington, (202) 225-8901
Loretta Sanchez, California, 202-225-5859
Mike McIntyre, North Carolina, (202) 225-2731
Ellen O. Tauscher, California, (202) 225-1880
Robert A. Brady, Pennsylvania, (202) 225-4731
Robert Andrews, New Jersey, 202-225-6501
Susan A. Davis, California, (202) 225-2040
Rick Larsen, Washington, (202) 225-2605
Jim Cooper, Tennessee, 202-225-4311
Jim Marshall, Georgia, 202-225-4311
Madeleine Z. Bordallo, Guam, (202) 225-1188
Mark Udall, Colorado, (202) 225-2161
Dan Boren, Oklahoma, (202) 225-2701
Brad Ellsworth, Indiana, (202) 225-4636
Nancy Boyda, Kansas, (202) 225-6601
Patrick Murphy, Pennsylvania, (202) 225-4276
Hank Johnson, Georgia, (202) 225-1605
Carol Shea-Porter, New Hampshire,(202) 225-5456
Joe Courtney, Connecticut, (202) 225-2076
David Loebsack, Iowa, 202.225.6576
Kirsten Gillibrand, New York, (202) 225-5614
Joe Sestak, Pennsylvania, (202) 225-2011
Gabrielle Giffords, Arizona, (202) 225-2542
Elijah Cummings, Maryland, (202) 225-4741
Kendrick Meek, Florida, 202-225-4506
Kathy Castor, Florida, (202)225-3376

Please rip this list off and spread it far and wide.

Do what you can.

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To Repeat:

Rep. Don Young called for his fellow Congresscritters to be murdered.

This should be an issue, no?

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Impeachment Fodder

Given that Congress will be controlled by the Democrats for the last two years of his term, some on the right are urging him to go on an executive order binge:

"He should get a list of the executive orders for the last 200 years, as a guide, and choose what he wants to do," says an informal Bush adviser. One proposal that fiscal conservatives are pushing is to halve all capital-gains taxes, as a way to encourage investment and job creation.

I wonder what the Constitution says about this.

OK, I'm done wondering:

Article 1, Section 7: All bills for raising revenue shall originate in the House of Representatives

Article 2, Section 8: The Congress shall have power to lay and collect taxes [...]

16th. Amendment: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived [...]

But wait! There's more:

Some conservatives argue that even if Bush somehow regains his political footing, whatever he might work out with the Democratic majority in Congress wouldn't be very good legislation, so he should go the executive-order route and bypass Congress altogether.

The right simply will not give up on its dreams of dictatorship. These people are dangerous and the Democrats in Congress had damn well better be ready to do what is necessary to stop them and George (and Dick).

Article 2, Section 4: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

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One Of These Things Is Not Like The Other

Hmmm...:

In three current high-profile criminal cases, federal prosecutors have asked that the identities of Israeli government witnesses be withheld from defendants and their attorneys — a move some legal scholars see as a highly unusual end run around the 6th Amendment.

From something called the "Constitution":

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Any questions?

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