Thursday, December 22, 2005

The coming constitutional crisis.

A couple of recent events cause me to believe the Bush administration faces a full blown constitutional crisis. Not just regarding the congress but with respect to the judicial branch as well.

The case of president Bush actively breaking the FISA law, and proclaiming that he will continue to do so has lead to the resignation of the presdiding judge on the FISA court. The acting presiding judge is attempting to convene the remaining court members for a briefing on the program. It is possible that the FISA court could disband depending on the answers provided in this briefing. If the FISA court disbands in response to the illegal activity of president George Bush, that will set off a crisis not seen since the Nixon impeachment.

Another less publicized but still enormously important case involves Jose Padilla. The administration won a very important ruling from the 4th circuit court of appeals affirming the presidents right to hold American citizens determined to be enemy combatants indefinitely without charging them with a crime. The 4th circuit court is well understood to normally have a more conservative tilt than the U.S. supreme court, where the case would next have been considered. And this is where things start to get interesting.

Two business days prior to the filing of the case with the supreme court the Bush administration conceded the case and requested that the 4th circuit court stay their decision. The administration then tried to charge Padilla in a civilian court in Florida. (The circuit court was considering whether or not the administration could hold Padilla indefinitely, not the merits of the case against him.)

Judge Michael Luttig, widely considered a front runner in consideration for a possible future supreme court nomination by president Bush, just ruined his chances at that nomination with a stinging rebuke to the administration in it's conduct of the Padilla case. Judge Luttig called the credibility of the administration with the courts into question in his decision by saying they appear to be attempting to bypass a supreme court review of the presidents wartime powers. Judge Luttig also questioned why the administrations case before the Florida court uses different charges against Padilla than those used to justify expanded presidential authority in the war on terror.

It is quite clear that in respect to the FISA court and now the 4th circuit court, the administration has a full fledged judicial uprising on it's hands. One wonders if the FISA court does not accept the administrations reasoning what happens? For a court to consider the constitutionality of the administrations activity with the NSA spy program an injured party must bring the case. Would it be possible to argue that the FISA court itself has been injured and to have them bring the case? This court is statutorily obligated to authorize the administration to conduct the eavesdropping. I think the case could be made that if the administration steps beyond the statute, they are an injured party. Just imagine the constitutional crisis such a move would precipitate...

And it appears that despite all the machinations of this administration, they are going to be forced to make their case to the supreme court. What happens should the court rule against them, but the administration simply declares that for the good of the nation they will not abide by that decision. It is perfectly clear in regards to the FISA statute this is the course the administration has taken. If the administration can do this with a congressional statute, why not a court ruling?

I am convinced that George Bush will be impeached for several high crimes and misdemeanors. I'm not certain the senate will remove him from office after impeachment, but one can only hope that if the senate does take that step president Bush does not see fit to simply ignore that congressional action as well.

"Im-peach-ment...but I don't like cannin' peaches," said one very high ranting political figure...
Personally I would think anyone could claim injury and not just the FISA court. If our freedoms are abridged then we are indeed injured. Where's the ACLU?

As far as impeachment goes, I guess it is possible. It will have to be more of a meltdown than it currently is though. The Republican majority makes for a huge obstacle. The Republicans will likely circle the wagons and point to Clinton's use of FISA. The "He did it too" excuse will be enough for some fellow party members to stand by their man.
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