Verbosities

Constitutional Hardball -- Balkinization

At this point in Bush's Presidency three things matter above all others. They motivate this final round of constitutional hardball: The first is keeping secret what the President and his advisers have done. The second is running out the clock to prevent any significant dismantling of his policies until his term ends. The third is doing whatever he can proactively to ensure that later governments do not hold him or his associates accountable for any acts of constitutional hardball or other illegalities practiced during his term in office.

If the NSA program and the Torture Memos were examples of the second round of constitutional hardball, the Libby commutation and Harriet Meiers' refusal to testify before Congress are examples of the third round. Although his Presidency now seems to be a failure, Bush's third round of constitutional hardball may be every bit as important as the first two. That is because if Bush is never held accountable for what he did in office, future presidents will be greatly tempted to adopt features of his practices. If they temper his innovations and his excesses only slightly, they will still seem quite admirable and restrained in comparison to Bush. As a result, if Congress and the public do not decisively reject Bush's policies and practices, some particularly unsavory features of his Presidency will survive in future Administrations.

Let me head off the "LOLIBRULZ IT CAN'T HAPPEN HERE" argument with a real easy timeline for you to follow:

Nixon secretly authorizes illegal warrantless surveillance of American citizens, claiming "national security" authorization. (late 1960s - early 1970s)

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Congress passes Foreign Intelligence Surveillance Act (FISA), making it a felony to engage in wiretapping of Americans without a warrant. (1978)

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Bush DOJ issues opinion that Article II "Commander-In-Chief" plenary powers put the President in a "constitutionally superior position" to Congress in a time of perpetual war. (September 25, 2001 - John Yoo opinion)

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Bush acknowledges NY Times report on his administration's warrantless wiretapping program is correct. (2005)

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Federal appeals court determines that citizens may not challenge administration's admitted illegal activity, because such activity was declared a "state secret," preventing the citizens bringing the challenge from affirmatively proving they were harmed by the administration's admitted illegal activity. (July, 2007)

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It is happening here. It's happening now. Our Congress made an executive action illegal, and the executive told Congress to shove it. If that's not a step in the direction of an unbridled executive dismantling checks and balances, I'm not sure what is.

The point is that so long as we allow our executive branch to assert their ability to break the law* and shroud their wrongdoing under "state secrets" or "executive privilege" without oversight or standing to challenge in the courts, the constitutional powers of the executive grow beyond constitutional intent when passed to the next guy.

Congress can recognize what's going on here, and - guess what CJ? - assertions of privilege and claims to Article II powers, let alone the felonious warrantless wiretapping program all add up to "high crimes," which are an impeachable offense.

You don't need a sting operation or a tearful witness taking the stand and spilling the beans to impeach. There NEED NOT BE AN ACTUAL CRIME COMMITTED. Enumerated high crimes are enough. Period.

The concern is fundamental. That a weakened constitution will continue to be weakened by subsequent administrations, and that our system will cease to resemble the system our founders intended if we continue to ignore these sorts of unconstitutional assertions.

Read Balkin's post in its entirety. He's far more eloquent on the topic than I.

*Make no mistake, warrantless wiretapping is illegal. There is no "loophole" the administration was taking advantage of. Their assertion of Article II plenary powers becomes their catch-all "loophole."

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