May 14, 2006

by Reb Yudel
Madison warned us there'd be days like these

Greenwald writes:

We continuously hear that the Bush administration has legal authority
to do anything the President orders. Claims that he is acting illegally
are just frivolous and the by-product of Bush hatred. And yet, as I detailed here,
each and every time the administration has the opportunity to obtain an
adjudication of the legality of its conduct from a federal court
(which, unbeknownst to the administration, is the branch of our
government which has the authority and responsibility to interpret and
apply the law), it does everything possible to avoid that adjudication.

This
continuous evasion of judicial review by the administration is much
more serious and disturbing than has been discussed and realized. By
proclaiming the power to ignore Congressional law and to do whatever it
wants in the area of national security, it is seizing the powers of the
legislative branch. But by blocking courts from ruling on the multiple
claims of illegality which have been made against it, the
administration is essentially seizing the judicial power as well. It
becomes the creator, the executor, and the interpreter of the law. And
with that, the powers of all three branches become consolidated in The
President, the single greatest nightmare of the founders. As Madison warned in Federalist 47:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There
can be no liberty where the legislative and executive powers are united
in the same person, or body of magistrates," or, "if the power of
judging be not separated from the legislative and executive powers,"
he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

His
meaning, as his own words import, and still more conclusively as
illustrated by the example in his eye, can amount to no more than this,
that where the whole power of one department is exercised by
the same hands which possess the whole power of another department, the
fundamental principles of a free constitution are subverted
.
This would have been the case in the constitution examined by him, if
the king, who is the sole executive magistrate, had possessed also the
complete legislative power, or the supreme administration of justice;
or if the entire legislative body had possessed the supreme judiciary,
or the supreme executive authority.

The attribute
which most singularly defines this administration is its insistence
that our Government is based on unilateral and unreviewed Presidential
Decree. The President directs the telecom companies to turn over this
information and they obey. That’s how our Government works, as they see
it. And if the telecom companies are concerned about their legal
liability as a result of laws which strongly suggest that they are
acting illegally if they comply with the President’s Decree, and thus
request a judicial ruling first, that request, too, is denied. There is
no need for a judicial ruling once the President speaks. What he orders
is, by definition, legal, and nobody can say otherwise, including
courts.

Amazingly, again and again, they don't even want their own Justice Department to know what they are doing because they are afraid that DoJ lawyers will tell them that it is against the law. They don't want to hear that it is against the law. As USA Today reported: "For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office.
A second person confirmed this version of events." They know very well
that their conduct might be, and in some cases that it is definitely
is, illegal, but they are purposely avoiding having the DoJ be able to
opine on the legality of their behavior.

That is the same inherently corrupt motive which led the NSA to refuse to give
DoJ lawyers security clearance to enable the DoJ to investigate whether
their lawyers acted unethically in connection with the NSA illegal
eavesdropping program. As intended, that refusal caused the DoJ to shut
down its investigation. As Jack Balkin notes about that

Note
the irony: While private phone company employees at AT&T and other
corporations must have sufficient security clearances to know what is
going on in the NSA program- because they are helping to run it-- the
Justice Department's own ethics lawyers do not. It's a convenient way
to forestall any investigation into wrongdoing.

They
desperately avoid not only a ruling from a court as to whether their
conduct is legal, but also opinions from their own Justice Department
lawyers, likely driven by the fact that many DoJ lawyers opined that
the NSA program was illegal -- something they do not want to ever hear
again.
cover-up, also disclosed yesterday:

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