Things to do this week:
- Question Attorney General Alberto Gonzales on FISA.
- Question Attorney General Alberto Gonzales on the use of presidential signing statements.
- Mark the occasion with floor action laying the groundwork for an argument for impeachment.
How?
This week, Alberto Gonzales takes the hot seat before the Senate Judiciary Committee, ostensibly to answer for the recent revelations of an ongoing program of illegal domestic warrantless surveillance.
And while he will undoubtedly face pointed questioning on that subject, I suggest that the focus should not remain too narrow. Gonzales should also be made to answer for the views promulgated by this "administration" on the validity of the use of presidential signing statements to essentially nullify duly enacted statutory law.
This second issue has been connected most directly with the now-infamous nullification of the anti-torture provisions enacted at the behest of Republican Senator John McCain. But what's at the heart of this issue is also at the heart of the surveillance issue -- that is, this president's lack of respect for the co-equal branches of Congress, and yes, the judiciary as well.
In both cases, the president has declared his intention -- and indeed Gonzales is expected to declare his right and duty to rewrite, amend, or flat out ignore duly enacted statutory law when he deems it necessary to the "national security."
Under the Constitution as we understand it this cannot stand.
But be warned: Our common understanding of the Constitution is subject to change, and will change unless this "administration's" views on the separation of powers are completely and utterly repudiated.
How so? Well, we all know that the warrantless domestic surveillance program is illegal under FISA. But the "administration's" strategy here is to change that. They know that while we all think it's illegal, the reality is that the day five Justices say it's not, we're all officially wrong.
Now, that hapens to be the reason why I view impeachment -- and not necessarily that of the president, by the way -- to be a requirement. Simple defeat of the proposition legislatively will not do, as we have seen by the president's willingness to ignore duly enacted legislation. Nor will a clear annunciation of constitutional principles necessarily work, as we have seen by the president's willingness to ignore the duly ratified Fourth Amendment, not to mention the Constitution's presentment clause.
But that's not what I'm here to discuss at the moment. We all know that as necessary as impeachment may be, it's a long, long road, and much work needs to be done to lay the foundation for it. This week, though, we have an opportunity to begin laying that foundation.
As Gonzales' testimony opens the door for a close examination of the "administration's" policies of active disrespect for Congress, both Houses ought to take the opportunity to go on record as rejecting such views. They need to defend their instititional prerogative as legislators, and as a co-equal branch of government.
Both Houses of Congress ought to be acting this week, at the behest of the minority, if necessary, to pass a "sense of the Congress" resolution expressing, for instance, the belief that the use of presidential signing statements to nullify duly adopted and signed statutes is a violation of the doctrine of separation of powers and is an impermissible usurpation of authority by the president.
They might similarly consider such a resolution rejecting the "administration's" rationale for ignoring the FISA statute with respect to their still ongoing warrantless domestic surveillance program.
Such resolutions would be highly privileged matters -- questions of the privileges of the House and/or Senate -- on which there must be an immediate ruling (as to its privilege) if offered by the Majority or Minority Leaders.
The Republicans, of course, might well move to table such motions, but since they'd be both non-binding and have at least some Republican support, they would make tough tests for the GOP leadership to sweep under the rug.
Senators McCain and Graham, in particular, should have personal interests in sending this message, since it was their work on the torture ban that was most famously nullified. And McCain's partner in the campaign finance reform fight, Russ Feingold, will be taking the lead in grilling the Attorney General about FISA and other subjects this week. They should confer on such a resolution and move one in conjunction with the hearings, as should Nancy Pelosi in the House.
Properly worded, these resolutions would express the sense of Congress as a whole -- or each chamber individually -- that the "administration's" interpretation of the president's Constitutional prerogatives are outside of the understanding of a majority of Congress. And of course, should it happen that they fall outside of the understanding of 2/3 of the Senate, well... we all know what that means.
I'm certain that for precisely that reason no such resolution would be permitted to gain 2/3 support in the Senate, but it would require a substantial portion of the Republican Senate Conference to adopt the position that Congress is in fact not a co-equal branch -- a position that puts them at odds with everything anyone who ever took high school civics knows to the true and common understanding of the structure of our government.
Let's put them on record. Surely, even those who prefer to concentrate on "winning in November first" can agree that this provides us some strong material on which to campaign. Not that it would suddenly awaken Americans from their disinterest in politics -- especially "inside baseball" -- but it does address an issue that almost every American can tell you appears to put the Republicans at odds with their basic understanding of, well, everything this country is supposed to stand for.
Senator Reid and Congresswoman Pelosi, defend your institution! Build on the momentum of this week's inquiries to defend the privileges of the House and Senate.
What would be the excuse for voting against such a resolution, unless you really did want to go on record as believing that the body in which you serve ought to wi
llingly surrender its co-equal powers to the presidency?