Tuesday, September 05, 2006

The Exception Swallows the Rule

President Bush's latest argument for "winning" in Iraq is that unless the government and society of Iraq is made stable and secure, the country will become a base for terrorists. Fair enough.

Who created the conditions which now exist in Iraq -- which must be fixed by US troops in an occupation with no endpoint -- which has allowed Iraq to become a potential staging ground for terrorists?

What was the President's stated purpose for invading Iraq in 2003 which led to the conditions there which now must be "fixed" by 140,000 US troops?

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"To have a democracy that allows people to have sovereignty over their lives is something that we think is so powerful, and that the yearning for freedom is so natural, that that is going to send a powerful signal throughout the region. People are going to want more of it. And that's why the president is determined to stay the course." -- White House spokesman Tony Snow, 8/16/06 press briefing.

"The idea that somehow we're staying the course is just wrong. It is absolutely wrong." -- White House spokesman Tony Snow. 9/5/06 press briefing.

Well that clarifies everything.

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"There have been some in the Democratic Party who have argued against the Patriot Act, against the terror surveillance program, against Guantanamo. In other words, there are some people who say that we shouldn't fight the war, we should not detain -- we shouldn't apprehend al Qaeda, we shouldn't detain al Qaeda, we shouldn't question al Qaeda, and we shouldn't listen to al Qaeda. In other words, they're all for winning the war on terror, but they're all against -- they're against providing the tools for winning that war." -- White House spokesman Tony Snow. 9/5/06 press briefing.

Americans are not opposed to arresting al Qaeda members. Many are opposed to the US torturing them or anyone, for that matter. Many are upset that detained prisoners at Guantanamo are deprived of all rights as either prisoners of war under the Geneva Conventions or as criminal suspects under the US Constitution. Many are upset that the "legal theories" used by the President and US Attorney General are a mockery of international law, treaties and the US Constitution. Many are upset that the US has apparently established secret prisons in unnamed countries for the detention and torture of "suspects" that due to their secrecy are outside the oversight or knowledge of the American people, its Congress and its Judiciary. Many Americans believe that if the US captures or arrests people suspected of plotting to commit terror acts against the United States, those people should be tried in a US Court of law, just like Timothy McVeigh, or any suspected airline hijacker. Many Americans are opposed to a secret "terror surveillance" program which spies on American citizens, taps their phones, reads their mail and e-mail in a manner which violates federal law and the Fourth Amendment of the U.S. Constitution.

Here's a fact. If you were an American citizen, like Timothy McVeigh, and deliberately blew up a US federal office building and killed hundreds or even thousands of people, you would be fully protected under the US Constitution from the moment you were arrested to the moment your sentence was carried out. If you were a non-American citizen arrested on US soil attempting to kill Americans on US soil you would be afforded the same legal rights as afforded Mr. McVeigh. This is what the US Constitution mandates and requires.

One need only review the U.S. Supreme Court transcript in the case United States v. Richard Nixon, President of the United States (418 U.S. 683) to see a parallel instance where the President declared he had the right to interpret the US Constitution in any way he wished. In this 1974 case, aides to President Nixon were indicted by a federal grand jury for obstructing justice after the botched break-in and wiretapping of the Democratic National Committee offices at the Watergate Hotel in Washington, D.C. The Special Prosecutor for this case, Leon Jaworski, issued a subpoena for tape recordings made in the White House Oval Office where plans were discussed to thwart and limit an FBI investigation of the break-in, including the payment of hush money to one of the break-in organizers, Howard Hunt, to encourage him to perjure himself to the Grand Jury. President Nixon refused to turn over the Oval Office tape recordings and appealed his case to the U.S. Supreme Court.

In oral argument, the President's attorney, James St. Clair, informed the U.S. Supreme Court that the President, according to the President's interpretation of the Constitution, was not required to comply with the subpoena and turn over the tapes to a US court. In essence, Mr. St. Clair stated that the Supreme Court had no Constitutional authority to question the President's judgment of what the Constitution means.

Justice Thurgood Marshall reasoned that if St. Clair's argument was correct -- that the President was free to ignore a decision of the US Supreme Court -- why was Mr. St. Clair even standing before the Court? The court transcript reads:

Marshall: You're still leaving it up to this Court to decide it?

St. Clair: Well, yes, in a sense.

Marshall: Well, in what sense?

St. Clair: In the sense that this court has an obligation to determine the law. All right? The president also has an obligation to carry out his constitutional functions.

Marshall: You are submitting it to this Court for us to decide whether or not executive privilege is available in this case?

St. Clair: Well, the problem with the question is even more limited than that. Is the executive privilege absolute or is it only conditional?

Marshall: I said 'in this case.' Can you make it any narrower than that?

St. Clair. No, sir.

Marshall: Well, do you agree that that's what is before this Court, and you are submitting it to this Court for decision?

St. Clair: This is being submitted to this court for its guidance and judgment with respect to the law. The president, on the other hand, has his obligations under the Constitution.

Marshall: Are you submitting it to this Court for this Court's decision?

St. Clair: As to what the law is, yes.

Chief Justice Burger: If it were not so, you would not be here?

St. Clair: I would not be here.

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The US Supreme Court case heard July 8th, 1974 reaffirmed that the US Constitution reserves to the Judiciary, not the President, the authority to "say what the law is" -- including the Constitution itself. The Supreme Court reasoned that without this authority being reserved to the Judiciary, the entire system of checks and balances built into the Constitution would cease to function, ie. the President or Congress could simply ignore a decision of the U.S. Supreme Court because they are free to interpret the Constitution in their own way. The Court wrote:

"[T]he 'judicial Power of the United States' vested in the federal courts by Art. III Section 1 of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government."

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In recent months, the Bush Administration has defended many of its actions and policies, including secret surveillance on American citizens, on the same grounds used in 1974 by attorney James St. Clair in United States v. Richard Nixon. Key among these arguments is that the President's Constitutional powers allow him to violate various federal laws; and no Court can prevent the President from doing so if he wishes. This argument, extended logically, means the President may interpret his powers under the Constitution in any way he wishes. This argument then means that the US Supreme Court has no authority to determine if the President's actions, or actions authorized by the President, are lawful or not. The President alone makes the call.

In practice, this means for example, that the President could refuse to obey or enforce any and all laws passed by the Congress. That a President could veto a bill just by refusing to compel the Executive Branch from enforcing and carrying it out. That a President could order Executive Branch employees to carry out directives that are in violation of federal law.

After the U.S. Supreme Court issued its unanimous decision against President Nixon in 1974, many feared Nixon would ignore the Supreme Court's decision and precipitate a Constitutional crisis. Accounts indicate that Nixon considered doing this, but events quickly overtook him. Three days after the Court's decision, the US House of Representatives voted to impeach Nixon for obstructing justice. Only after a personal visit by Republican Senators to Nixon, who told him there were insufficient votes in the Senate or House to block the impeachment, did Nixon reconsider this course of action. Instead of defying the US Supreme Court, Nixon resigned the Presidency on August 8, 1974.

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The details of United States v. Nixon are important today because President Bush and his Administration are now testing the same legal waters as Richard Nixon in 1974. The modus is simple. The President may interpret the laws he is sworn to uphold in any way he sees fit. The Constitution vests in the Executive Branch the responsibility to enforce laws. The Judiciary exists to interpret laws. Congress exists to write and amend laws. All three branches are required to obey all of the laws. The Judiciary cannot write or enforce laws. It cannot prosecute people for breaking laws. The Judiciary can only hear cases which are brought before it. The Judiciary cannot bring up its own cases, even if it believes they should be brought up. So long as no one challenges the refusal of the Executive Branch to obey or enforce a law, the Judiciary is powerless to review or hear it.

If for example, a prisoner at Guantanomo Bay, is refused the physical ability to file a writ of habeus corpus to a US Court, no US Court can respond to the prisoner's plea. If for example, a person captured by the US is being held in a foreign country in secret, and not allowed any contact with family or an attorney, that person is unable to ask a US Court to review whether he is being held lawfully or unlawfully. If an American citizen living in the US is not aware they are being spied on by the US government, that their mail and phone calls are being intercepted, and the entire spying program itself is secret, that person has no way to ask a US Court to determine if the spying activities on them are lawful under the US Constitution. And a US Court has no way of potentially assisting them.

The US system of tripartite government, of checks and balances between the Congress, Judiciary and President, is very durable because it was carefully designed to prevent any one branch from lording over the others. The weak link in this structure is the Executive Branch, which is specifically charged with law enforcement and militarily protecting the United States. What happens if the Executive Branch exercises its powers to preserve itself -- not the United States? What happens if the Executive Branch exercises these powers to undermine the Constitutional powers designated to the Judiciary and Congress? Who decides?

These are the questions US Supreme Court Justice Thurgood Marshall asked attorney James St. Clair on July 8, 1974. Thurgood Marshall asked, in essence, if the President does not recognize our Constitutional authority then why is the President now before us?

The Bush Administration has taken up St. Clair's argument. There are certain circumstances, which only the President is allowed to define, in which the President may do whatever he pleases for whatever reasons he wishes. But this time, the Bush Administration has resolved to not repeat the mistake made by President Nixon and Mr. St. Clair. If they can keep their activities out of the reach of the Courts, the Courts are rendered moot.

There is a phrase used by lawyers which states, "the exception swallows the rule." In its simplest sense, this expression means that if one admits a sufficiently large and broad enough set of exceptions to a rule or law, the rule or law ceases to exist for practical purposes. The law might still exist on paper, but it can never be used or enforced in the real world. A fundamental concept of laws is that they are enacted to operate in the real world -- not to just sit nobly, prettily and ineffectually on a piece of parchment or paper. All Soviet Bloc Communist governments in the 1950s, 1960s and 1970s had long, nobly worded constitutions which guaranteed various freedoms and rights to their citizens -- they just weren't enforced. But they existed on paper for whenever the appointed leaders wanted to cite them as proof that theirs was a just, fair and free society. After all, the leaders said, it's all written right there on paper. In large, flowing letters.

The current Administration, like the Nixon Administration and others prior, wishes to create for the President an exception to the US Constitution which swallows the rule, ie. the Constitution itself.

All you fascists bound to lose ...
All you fascists bound to lose ...
You're bound to lose
You fascists bound to lose.

-- Woody Guthrie

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