Tuesday, January 10, 2006

The President vs. The Constitution

There has been a significant increase in the opposition of the extension of the Patriot Act. New information concerning whether the anti-terrorism measures are as critical to national security as Bush insists they are. The fact our current administration waited until the "last minute" to push the reauthorization through is eyebrow raising to say the least. If the Patriot Act is so very important to national security, why not discuss and pressure the legislature in 2005 about the importance of reauthorizing these seemingly critical laws against terrorism? Our elected officials have had four years to review and discuss the laws contained in the Act, but instead they chose to wait until the very last minute to extend it through January. Our politicians again were able to turn the whole thing into another political ploy that as usual, places the citizens into merely a spectator position.

Within the Patriot Act are many provisions which if allowed to remain, will continue to destroy the Bill of Rights. Our Fourth Amendment guarantees Americans certain rights against improper search and seizure.
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.

As the Act exists now, the FBI can issue their own order without the court's approval. They can demand that (doctors, travel agencies, video rental stores, credit card companies, financial planners, internet service providers, libraries, banks, and practically anything else you can possibly think of,) turn over financial and personal records of any American. The FBI's authority comes from the Intelligence Authorization Act which alters the Foreign Intelligence Surveillance Act. This gives the FBI unprecedented power to obtain records from practically anywhere on anyone without proving reasonable "just cause". Under the IAA, all a FBI agent has to do is draft a so-called National Security Letter stating the information requested is relevant to a national security investigation. There has also been recent media revelations that the president authorized the National Security Agency to collect signals intelligence communications involving U.S. citizens within the country, without a warrant or court order. This too has raised numerous questions of the legality and constitutionality of the president's actions. Bush states that he believes his order is fully supported by the Constitution and the laws of the United States due to presidential powers and his authorization to use "all necessary and appropriate force" in the search for those responsible for 9/11. Just how do we interpret what this "all necessary and appropriate force" authorizes, or whose responsibility is it to interpret the range of steps the president can take under this blanket authority which seemingly has no boundaries?

The president contends that War Powers allow him and anyone he authorizes to operate without court oversight as long as the national security is threatened. The War Powers Clause itself is questionable due to the fact that since World War II, presidents have declared they have constitutional authority as commander in chief to use the military for police actions without a formal declaration of war.

Then on September 18, 2001, history was made when Congress granted the president to proceed with his War on Terrorism. Congress granted the president the authority to
"use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

In other words, Congress granted the executive branch of the government a blank check of sorts in an undefined, unbordered, unrestrained war on an abstract concept of terror. Once Congress had given the president this authority, he laid out his intentions in an address to the American people.
"Our war on terror begins with al-Qaida, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated."

That is definitely a very broad statement concerning the planned war on terror, and although we can see the beginning; the end of this objective remains obscure. There are no lines defining where, when, or what we can do or should do in this war based on an abstract concept of what and how terror, or a terrorist is defined. It falls entirely within the executive branch of our government to decide who is a terrorist and what constitutes terrorism, and this pooling of power absolutely destroys our country's checks and balances which were put in place in order to keep a concentration of power out of our government. The checks were put in place so each branch could monitor the power of the other branches of government and the balances are there to limit the powers of each branch. Without these checks and balances, the American people, their freedom, and their rights become jeopardized.

This imbalance of power has broken down these checks and balances of power and what we see today is a concentration of power within the executive branch of our government. This condition has been described as the Unitary Executive Doctrine or Theory. This doctrine favors nearly unlimited executive power and the president has used the doctrine in his signing statements to quietly expand presidential authority. This doctrine stems from a theory called "departmentalism" or "coordinate construction". According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, this theory gives all three branches of government the power to interpret the Constitution and the president must interpret laws just as the courts must. John Yoo has continuously promoted placing more power within the executive branch since 9/11 and it's very apparent that he's content to say exactly What Bush Wants to Hear. Granting the power of interpreting laws to the other branches of government, via the Unitary Executive Doctrine, goes against the long-standing notion of "judicial supremecy" which has allowed the court, since 1803, to be the final arbiter of what is and is not the law.

Also contributing to this concentration of power is the president's "signing statements". These signing statements have received very little media attention but they greatly expand presidential power. They basically say that the president will interpret the law in question in a manner consistent with his constitutional authority to supervise the unitary executive branch. The use of "signing statements" to gain presidential power was aggresively pursued by Reagan and every president since has used such statements to create a sort of alternative legislative history. Attorney General Ed Meese explained in 1986:
To make sure that the President's own understanding of what's in a bill is the same . . . is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.

President Bush has set a record when it comes to these "signing statements", as he has inked more than 500 "signing statements" since taking office. One of the latest instances is the one he signed pertaining to the torture bill or the McCain Amendment. It states that Bush will view the limits on torture within the context of his broader powers to protect national security. Or basically this means that if he feels there is no compelling reason to follow the anti-torture law, he can ignore it in the name of national security. He quietly reserves the right to bypass the law under his powers as commander in chief. Christoper S. Kelley's paper entitled The Unitary Executive explores what the term "unitary executive" means and how the president's "signing statements" have enabled him a much higher degree of executive power.

How Much Authority does the president actually have over the Supreme Court's executive power precedent? And how is it that a president can violate Congressional laws when he alone decides it's in the best interest of national security? The president's recent actions make it apparent that he views his administration as having a license to overrule Congress and bypass the courts based on his interpretations of the Constitution. Even if that means violating long-established laws, treaties, and legislation that he himself has signed. And the president has co-conspirators also. At least seven House Democrats knew about NSA's secret spying on U.S. citizens for more than four years and didn't say a word!

And this concentration of power isn't only concerning the civil liberty communities, but other groups are advocating amendments to some of the unchecked powers. The National Association of Manufacturers, the Financial Services Roundtable, and the U.S. Chamber of Commerce are also questioning the validity of some of the president's actions. Last October, Senator Arlen Specter, the chair of the Senate Judiciary Committee, expressed his concerns about Section 505 (National Security Letter Provision within the Patriot Act). According to some reports, the FBI currently issues more than 30,000 NSL letters a year due to Section 505 lowering the standard necessary to issue an NSL. As Anita Ramasastry says, "When business leaders and civil libertarians speak as one, it’s high time for Congress to pay attention."

When the president can sign a bill and then declare that he'll obey it if and when he feels like, we are slipping into dangerous territory in my opinion. And since Alito seems to have played a key role in setting up this situation, perhaps the confirmation hearings are the right place for the debate on this practice of "unitary executive power" and it's constitutionality to play out. It's our watch people, let's get it right for once! ;)

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