Thursday, June 19, 2008

FISA: Why is it that the Democatic Congressional Leadership Hates the Constitution?

I was somewhat heartened last week when the Supreme Court announced its Boumediene decision and focused on the checks and balances of our Constitutional system as a design against tyranny. Earlier in the week Congressman Dennis Kucinich read his 35 articles of impeachment on the House floor. It seemed like some sense of balance, sanity and restraint was returning. But then a stunning compromise to FISA legislation was announced today. Apparently, with little public review, the House of Representatives will vote on the bill tomorrow.

Now it appears Congressional Democratic leaders Steney Hoyer and Nancy Pelosi have conspired with the White House to compromise on the FISA bill pertaining to intercepts of communications both coming in and out of the country and abroad and effectively forgive the illegal behavior of the President. They may vote against the bill, but make no mistake about it, the bill would not come up for a vote without the permission vested in their leadership. And so all is not as it seems. The bill significantly pertains to the illegal warrantless wiretapping of American citizens the past seven years. And though the program was found be illegal by both advisers to the President and Federal Courts, Bush has continued to maintain that he possesses the ability to ignore the constraints of the 4th Amendment to the Constitution under legally questionable opinions regarding his "war" powers. Because the new bill seeks immunity for him and the telecommunications companies he must not be so certain that he was right. So through the bill he will seek to avoid accountability for his actions.

But now if the proposed compromise FISA bill passes the house tomorrow and the Senate next week and is signed by the President, the issue of whether the President acted illegally will magically disappear. The compromise lets the telecommunications giants who executed Bush's warrantless invasions of our privacy off if they can provide a court with evidence of a request from Bush & Co. stating wiretapping Americans was legal. But why should Bush’s opinion with respect to legality be a get out of jail free card? Just last week Justice Kennedy writing for the majority in Boumediene clarified that, Constitutionally, it is the Supreme Court who says what the law is, not the President. To allow the President to make his own laws, he said, amounts to the kind of tyranny the Constitution was designed to protect against.

Where has the Bush administration shown any kind of facility for rendering accurate legal opinions? The Justice Department was sufficiently corrupted that an attorney general resigned. We have seen how far afield the opinions as to what is legal have been in the torture arena. And, as stated, the opinions as to wiretapping produced by Bush are premised on his interpretation of his unlimited wartime powers. By passing this Congress, in the face of a flawed system of self-serving overreaching executive branch legal opinions, is ratifying these excesses and signing away any respect for legislative checks on the executive. Why is Bush yet garnering gestures acknowledging his good faith? And that this is being done at last minute with only one day of public review in a way that characterized so many bits of legislative fiat by the Republican Congress prior to 2006 says loads about what interests are truly being protected. The war may have been trumped up, based on lies and planned prior to 9/11 but because of the “national emergency” Bush will be forgiven. Its all been theater to introduce more coercion into the American social fabric and its mind boggling how dishonest and cynical this power grab is as it appears to be going down.

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