California Conservative

No, I’m not talking about President Bush’s supposed unprecedented power grab. That’s how Russ Feingold and other constitutional midgets characterize President Bush fulfilling his constitutional duty of protecting us from all enemies, foreign and domestic. What I’m referring to is Congress’s unconstitutional power grab. Rather than remind people what I’ve posted in the past about a president’s inherent constitutional authority, I’ll simply refer readers to Andrew McCarthy’s brilliant piece on the subject.

But the president, at least, had an excuse. Actually, not a mere excuse but a trump card. We call it the American Constitution. It empowers the chief executive to conduct warrantless surveillance of foreign threats. Even the FISA Court of Review, the highest, most specialized judicial tribunal ever to consider FISA, has acknowledged this. So did the Clinton administration when FISA was amended in 1994. In the United States, the “rule of law” first and foremost is the Constitution.

The president’s constitutional authority is inviolable; it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”

But let’s leave that aside for a moment. Whether you agree or disagree with what I just argued, it is incontestable that, under our Constitution, the president has a role, a plenary role, according to the Supreme Court, in the gathering of intelligence against foreign entities for national-security purposes.

The courts, to the contrary, have no such role. The Framers did not give them one, and the Supreme Court has acknowledged that they are institutionally incompetent to be brought into the intelligence-gathering equation, much less to manage it.

It is thus not the Constitution that has inserted judges into the intelligence-gathering business. If the Constitution were being honored, they’d be out of it. They are in the equation for one reason and one reason alone: Congress unwisely (and, I believe, unconstitutionally) interposed them when it enacted FISA.

What Mr. McCarthy has brilliantly, and rightly, done is charged Democrats with ignoring the Constitution. When Sen. Feingold whines about President Bush trampling over the Constitution, he should be chastised for the Senate’s trampling of the Constitution by enacting FISA in 1978.

It’s worth noting that the man who sat idly by as the global jihadist movement is the same man that signed this unconstitutional legislation into law. That man’s name is Jimmy Carter.

What this means is that Russ Feingold is as wrong about the Constitution as Jimmy Carter was. This also means that Russ Feingold’s whimpering about President Bush’s supposed power grab is either a bald-faced lie about what the Constitution says or he’s too stupid to understand the Constitution. Either way, he’s a man who shouldn’t be in office of any sort above the rank of dog catcher.

Here’s more of Mr. McCarthy’s dissection of the Democrats’ unconstitutional power grab:

So, what caused our present national-security crisis? A judge on the FISA court outrageously ignored the FISA statute. And it’s not the first time. And, whenever it happens, the purpose is to vest our enemies with more “rights,” not to protect our nation from those trying to slaughter us.

Understand this point. It’s crucial. The president has a right to ignore the FISA statute if it conflicts with the higher duties that are assigned to him by the Constitution. The president has an obligation to safeguard the American people against foreign attack, including strikes ordered by al Qaeda supervisors overseas, who give direction to terrorists embedded here, as they did in the run-up to 9/11. You can argue that he has overstepped his authority. You cannot credibly argue that he is without a colorable basis for doing so.

By contrast, the judiciary has no such authority. None. The FISA court has no constitutional responsibility to manage intelligence-collection. The Framers would be spinning in their graves over the mere suggestion of something so preposterous. If the court has a proper role, an enormous if, that role absolutely cannot be any broader than what Congress has prescribed in FISA. It could very well be less. If, as I contend, Congress overstepped its bounds in enacting FISA, the role of the courts could be either nonexistent or something less than FISA designed. It can, however, in no event be greater than what is laid out in FISA.

This is what happens when judges choose to become part time policymakers instead of being fulltime jurists ruling on the Constitution. Let me first say that judges that fancy themselves as being part time legislators are the most dangerous type of egotists because they see themselves as above the Constitution and as being smart enough to fill the role of both legislator and jurist.

Let’s not let liberal legislators off the hook either. They’ve insisted that FISA be followed even if it hinders our ability to detect and prevent terrorist attacks. They’ve stated clearly that they’re worried about the terrorists’ civil liberties. They just haven’t used those words.

Let’s remember that Russ Feingold thought that filibustering the Patriot Act was the right thing to do.

Let’s remember Harry Reid bragging that “20 minutes ago, we killed the Patriot Act.”

The bottom line on FISA is that FISA should be challenged constitutionally in court. It’s time that we got rid of it in its entirety. The bottom line on Democrats is that they aren’t serious about preventing future terrorist attacks.

Isn’t it time we got rid of FISA and the Democratic majority in the House and Senate?

Technorati Tags: FISA, Constitution, Andrew McCarthy, Judicial Activism, Harry Reid, Russ Feingold, Filibuster, Patriot Act, Surveillance, Intelligence

Cross-posted at LetFreedomRingBlog

This entry was posted on Wednesday, August 8th, 2007 at 8:04 am and is filed under Author: Gary Gross, Election 2008, Homeland Security, Intel, Military, Subversives, Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.