Wednesday, March 15, 2006

They Get Letters

Via Glenn, I see the AP is reporting:
Feingold's effort to censure President Bush is headed for the Senate Judiciary Committee, advancing a contentious debate over whether the president deserves a formal rebuke for his secret wiretapping program.

"I look forward to a full hearing, debate and vote in committee on this important matter," Feingold, D-Wis., said in a statement. "If the committee fails to consider the resolution expeditiously, I will ask that there be a vote in the full Senate."
A possible presidential contender in 2008, Feingold said Bush broke the law and violated the Constitution when he authorized the National Security Agency to conduct a warrantless wiretapping program as part of the war on terrorism.

"Congress must respond," Feingold said Monday on the Senate floor. "A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable."

And over the course of the day I rethought last night's lengthy diatribe, and decided that a more constructive approach to this constitutional crisis may be in order: the Intelligence Committee has already punted , so the ball is now in Judiciary's court.

Yeah, the Judiciary Committee chaired by Senator Specter. The guy who now apparently believes FISA is an unconstitutional encroachment on the President's unitary war powers.

So, I decided to dress the scraps from yesterday, tone everything down by 11 and, knowing my audience, send a letter to my Senator in the most conservative voice I can muster. Anyone interested in the civic art of letter writing can find their Senator's email address and office address here. The occasional moderates like Specter, especially, need to know that their constituents do not approve of the President's lawbreaking. As the AP article noted above makes clear, certain Democrats also apparently need to be reminded.

March 15, 2006

Senator Specter,

Five short years ago, I was generally apolitical but considered myself a libertarian-Republican. I voted for Bob Dole in ’96. I have voted for you. I studied conservative political theory under Prof. George W. Carey at Georgetown and took to heart the lessons of small-c conservative principles, exemplified in the balanced structure of our constitutional form of government. I was particularly enamored by Madison’s work in Federalists Nos. 10 and 51. His insight into the virtues of checks and balances always struck a chord with me, and I took it to heart as sage advice in forming my current political opinions.

This constitutional Republic admirably relies, by design, on checked and balanced power, on ambition counteracting ambition. If you’ll forgive the long quotation of a work with which I am sure you are familiar, as Publius (most likely Madison) explains in No. 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
. . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
. . .
If a majority be united by a common interest, the rights of the minority will be insecure.
. . .
In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.
These words, among others, helped to form my political beliefs. Madison’s insight into human nature and his understanding that prudence demands that all powers must be checked by another, equally self-interested, power, and that this check must be permanently established by formal processes and abilities to obstruct, is applicable to more than separate authority of the Several States from the Federal, or the divisions of power among the co-equal Branches. That is, I came to realize that prudence also demands, despite certain conservative thoughts to the contrary, that corporate power be restrained and restricted by government power, and by labor power. I came to realize that a Citizenry empowered by the Judiciary to enforce its own constitutional Rights was yet another prudent check on an overeager government. I also believe that Congress has long needed to exercise more jealous and aggressive oversight over the Executive Branch’s encroachments. I believe that the public needs advocates against corporate overreach, so I became a plaintiff’s attorney who represents policyholders against insurance companies.

Despite these departures from mainstream Republican thought, I still believed, until very recently, that I could still vote for a Republican again at some point in my life, should the Party return someday to its philosophical pillars: Prudence and Judgment. Recent actions by the Senate Intelligence Committee, however, have left me shocked again at certain Senators’ apparent lack of these virtues, and their astonishing failure to guard their own place as a co-equal Branch.

Senator Specter, respectfully, the Senate Judiciary Committee must not similarly fail to express firm disapproval of openly and proudly acknowledged lawbreaking by the Executive. There is no further investigation needed to understand what the Executive Branch has done, is doing, and will continue to do. There is no investigation necessary to understand what powers the Executive has claimed unto itself in denigration of those of Congress. Cases concerning the President’s inherent constitutional ability to act in the National Security field are inapposite, as they pre-date the enaction of F.I.S.A., which prohibits the precise conduct that the Executive has admitted.

Here, Congress has acted to restrict, restrain and cabin the Executive’s authority with checks by the Judiciary. This legislation was duly enacted by Congress and signed by President Carter. It has been in operation continuously since then, and has been repeatedly refined, updated, and reauthorized. This was done again only weeks ago with the reauthorization of the Patriot Act. F.I.S.A. is the law of the land. In this situation, as Justice Jackson explained, the President's power to act is at its lowest ebb. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Nevertheless, the President has acted in contravention of F.I.S.A. This was done, and is still ongoing, despite repeated opportunities to further update that law. This was done in secrecy and likely would not have been revealed to the full Intelligence Committee, as required by law, if this particular N.S.A. program had not been revealed by the Press. (As an aside, the Press functions as yet another wise and judicious check on overeager exercise of Power by other political actors, and this understanding justifies the privileged placement of the First Amendment).

Senator, without need for any further investigation, it is evident that this Republic is in a moment of constitutional crisis.

The Executive has overstepped its bounds in a manner designed to conceal the overstep. Having been caught, the Executive now claims that its powers in time of war (or warlike situations) are absolute and unrestrainable by Congress. This amounts to an assertion that F.I.S.A. is unconstitutional—that Congress is impotent in the arena of National Security.

This is dangerous stuff, Senator. Indeed, the legal rationales that the Executive has asserted could apply to almost any conceivable illegal, unconstitutional behavior—so long as it is related in some fashion to “War” or “National Security.” These rationales—that F.I.S.A. is unconstitutional—imply that the recent anti-torture legislation is a farce, and that the recent vote to renew the Patriot Act was charade.

War and National Security are arenas where the integrity of the Republic and the Creator-endowed rights of its Citizens could most be threatened and torn asunder by unbound, unchecked Power. This is why the Constitution gave Congress such an important role in regulating and restraining the Executive’s freedom of action in these arenas. Article I, Section 8 sets forth the Powers of Congress, and among these are the following: the Power to “provide for the common Defence and general Welfare of the United States;” “to define and punish . . . Felonies . . . and Offenses against the Law of Nations;” “To declare War;” “To make Rules for the Government and Regulation of the land and naval Forces;” and, of course, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In short, there is no question that F.I.S.A. is a constitutional exercise of Legislative Power. As such, violations of F.I.S.A. are illegal by statute and, further, unconstitutional. They are an affront to the prerogatives, and, indeed, the relevance of Congress.

Senator, the Congress must stick up for itself, its powers, its co-equal role in the Republic. It must stick up for the Citizens who they represent, by ensuring that all secret spying has been and will be done pursuant to lawful Congressional authority and has been approved as meeting Fourth Amendment requirements by an independent Judiciary that is protected from political passions under Article III.

In a moment of constitutional crisis, Congress must loudly say no to the Executive so that History will not mistake silence or inattention for approval. Certainly, Congress must not merely pass legislation making legal the Executives illegal actions.

A reproach is necessary.

In these circumstances, Senator Feingold’s resolution for Censure of the President is the most reasonable, moderate and prudent course of action. Censure is a sign of good Judgment. Censure means that the Congress does not approve, but that it will not take advantage to remove the President. While this course may be politically perilous in the waters of the current Republican Party, it has the virtue of being right, and in keeping with this Nation’s founding principles. It has the virtue of being supported by concerned Citizens such as myself.
Congressional inaction in the face of such blatant law-breaking would surely set a precedent, and fundamentally change the nature of the Republic and the relative powers of the supposedly co-equal branches. The Senate cannot let this constitutional moment pass without expressing its firm disapproval so that future generations are not saddled with such an ugly precedent, such an egregious departure from the Rule of Law, with nary a sanction levied against it.
Censure must start in your Judiciary Committee, and I hope that you will vote for, and publicly support, this measure.

If my words have swayed you at all to this point, let me add that Feingold’s resolution is not enough. As I expressed above, it is apparent that the program that the President and Attorney General have acknowledged is not the extent of the illegality. Your Committee must investigate and root out any unauthorized and unchecked activity that may affect United States Persons in contravention of F.I.S.A. and the Fourth Amendment.

It is my hope that you do the right thing. Men are not angels, and future leaders may not be as wise in their use of unitary executive power as the current President.

Luke []


Specter replies:

Wed 3/15/2006 10:57 AM
Re: Constitutional Crisis; Censure

Thank you for contacting my office regarding President Bush's secret domestic surveillance program. I appreciate your concern regarding this important matter.

Law enforcement officials must be provided with as much information and as many tools as possible to ensure the protection of our country, but those resources cannot come at the expense of citizens' civil liberties. I believe that it was wise for the President to be candid with the American people concerning his surveillance program. It is important at this point that the matter does not become politicized, because this is a time for analysis and oversight, not attacks.

The U.S. Constitution limits the President's ability to conduct surveillance or searches of United States persons while residing within the United States . In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA") which permits federal agents to conduct electronic surveillance on United States persons in order to acquire foreign intelligence without obtaining a traditional Title III search warrant. FISA does, however, require a FISA court order approving the surveillance. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights within the United States . I have scheduled Congressional oversight hearings in order to make sure that we are able to maintain this delicate balance.

Thank you again for taking the time to bring your views on this important matter to my attention. As your United States Senator, it is essential that I be kept fully informed on issues of concern to my constituents. Be assured that I will keep your thoughts in mind on this issue and related issues in the 109 th Congress. Should you have any further questions, please do not hesitate to contact my office or visit my website at


Arlen Specter


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