Friday, January 13, 2006

Alito says presidents can violate law

Please note the last sentence in this story. Borkscalito says the President can violate laws that are unconstitutional. Who decides this? The President? No, the Supreme Court does. And until the SCOTUS decides that the law is unconstitutional, the law is still the law! So what is he saying here? The President can decide ahead of a SCOTUS ruling that the law is unconstitutional and thus available for choice of enforcement?

Stewart M. Powell
Hearst Newspapers
Jan. 13, 2006 12:00 AM

WASHINGTON - Supreme Court nominee Samuel Alito, pressed on President Bush's controversial domestic spying policy, told the Senate Judiciary Committee on Thursday that a president has the constitutional authority on "very rare" occasions to violate federal law.

Alito responded to questions from Senate Democrats about Bush's decision to order secret domestic surveillance without getting the approval of a special court that Congress and President Jimmy Carter set up in 1978 to curb abuses by intelligence agencies.

Alito appeared receptive to Bush administration claims that a president has the authority as commander in chief under the Constitution to embark on a domestic surveillance program without getting approval of the court, as required by the 1978 Foreign Intelligence Surveillance Act.

Citing Bush's claim that the Constitution hands a president wide leeway to protect the country in time of war, Alito said: "I think it follows from the structure of our Constitution that the Constitution trumps a statute."

Alito added: "It would be a rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example."

Bush has defended the super-secret program run by the National Security Agency by claiming the government was trying to eavesdrop on Americans and foreigners in the United States who were receiving telephone calls and e-mails from suspected al-Qaida operatives overseas.

Sen. Dianne Feinstein, D-Calif., said FISA gives presidents wide flexibility to spy on terror suspects inside the United States with approval by the special 11-member court. The FISA statute grants presidents emergency authority to spy on suspects for up to 72 hours before obtaining a court order.

The law makes violations a felony, subject to imprisonment and fines.

If Congress has "explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law or does his plenary authority supersede that law?" Feinstein asked Alito.

"The president, like everybody else, is bound by statutes that are enacted by Congress," Alito said.

But he said a president could violate a statute "if statutes are unconstitutional because the Constitution takes precedence over a statute."

Thursday, January 12, 2006

Dusting off the Impeachment handbook

Attorney Elizabeth Holtzman served four terms in Congress, where she played a key role in House impeachment proceedings against President Richard Nixon.

Finally, it has started. People have begun to speak of impeaching President George W. Bush--not in hushed whispers but openly, in newspapers, on the Internet, in ordinary conversations and even in Congress. As a former member of Congress who sat on the House Judiciary Committee during the impeachment proceedings against President Richard Nixon, I believe they are right to do so.

I can still remember the sinking feeling in the pit of my stomach during those proceedings, when it became clear that the President had so systematically abused the powers of the presidency and so threatened the rule of law that he had to be removed from office. As a Democrat who opposed many of President Nixon's policies, I still found voting for his impeachment to be one of the most sobering and unpleasant tasks I ever had to undertake. None of the members of the committee took pleasure in voting for impeachment; after all, Democrat or Republican, Nixon was still our President.

At the time, I hoped that our committee's work would send a strong signal to future Presidents that they had to obey the rule of law. I was wrong.

Like many others, I have been deeply troubled by Bush's breathtaking scorn for our international treaty obligations under the United Nations Charter and the Geneva Conventions. I have also been disturbed by the torture scandals and the violations of US criminal laws at the highest levels of our government they may entail, something I have written about in these pages [see Holtzman, "Torture and Accountability," July 18/25, 2005]. These concerns have been compounded by growing evidence that the President deliberately misled the country into the war in Iraq. But it wasn't until the most recent revelations that President Bush directed the wiretapping of hundreds, possibly thousands, of Americans, in violation of the Foreign Intelligence Surveillance Act (FISA)--and argued that, as Commander in Chief, he had the right in the interests of national security to override our country's laws--that I felt the same sinking feeling in my stomach as I did during Watergate.

As a matter of constitutional law, these and other misdeeds constitute grounds for the impeachment of President Bush. A President, any President, who maintains that he is above the law--and repeatedly violates the law--thereby commits high crimes and misdemeanors, the constitutional standard for impeachment and removal from office. A high crime or misdemeanor is an archaic term that means a serious abuse of power, whether or not it is also a crime, that endangers our constitutional system of government.

The framers of our Constitution feared executive power run amok and provided the remedy of impeachment to protect against it. While impeachment is a last resort, and must never be lightly undertaken (a principle ignored during the proceedings against President Bill Clinton), neither can Congress shirk its responsibility to use that tool to safeguard our democracy. No President can be permitted to commit high crimes and misdemeanors with impunity.

But impeachment and removal from office will not happen unless the American people are convinced of its necessity after a full and fair inquiry into the facts and law is conducted. That inquiry must commence now.