Monday, May 21, 2007

The Wrong Approach To A Lawless President

The House has passed a funding bill for U.S. intelligence services, and an amendment on this bill reaffirms that the FISA law should govern domestic collection of foreign intelligence. This is being reported as a set back for the Administration who wants legislation sent forward that expands Presidential authority to wiretap beyond current FISA allowances. Oddly enough, I contend that adding this amendment to the bill may really give a victory to the Bush administration.

Adding this amendment would allow the President to veto the bill, and in effect veto the FISA law. That is, unless his veto were over ridden which I do not believe can be done with any veto as the Congress currently stands. The President would be given the ability to veto a law which has already been passed, and never repealed.

I'm not sure that this nation has ever before witnessed such a procedure as is being undertaken by the Congress right now. The remedy given by the constitution for a President who refuses to abide by any law is impeachment, pure and simple. I think Congress may be making a substantial error by trying to address an instance of lawlessness by a President with an affirmation of the law in question. The FISA law was passed and signed, and never has been repealed. It is the law of the land, and affirming that is pointless, except to give the President the possibility of vetoing it by vetoing the bill that affirms it.

If Congress can not find the will to proceed with the constitutional remedy provided for a President who defiantly breaks the law and proclaims their intention to continue in the same way, I think they would be well served to not try to invent other ways to bring the President into line. They either fulfill their constitutional roles, or they don't, but trying to make it up as they go along is not a wise course. The founding fathers gave us the remedy for this particular situation, and not one of those founding fathers is around to give their advice on making up another way forward if the Congress can't be moved to take the right course of action in the first place.

The precedent being set in this entire affair is extremely damaging. Are future Presidents going to be able to declare their intention to simply defy a law they do not agree with, and have the Congress try to reaffirm that law with other legislation, which the offending President can then veto? This is a boneheaded precedent brought in response to the actions of a bone headed President, and not a practice which I want my generation of leaders to set for an example going forward.

if you haven't already, you might want to check out glenn greenwald's column in salon today... he has an extensive analysis of fisa from its passage through its amendment immediately post-9/11, and has an excellent perspective on the whole matter, imho...
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