Support Feingold's Censure Resolution: A Letter to my Senators

I just wrote and faxed this to my two Senators, after feeling prompted by Jane Hamsher. We'll see how they reply. I can't help but wonder how Paul Wellstone would have replied, if a plane crash hadn't handed the election to Coleman.

Huge hat tips to Harold Koh, David Cole, Marty Lederman, Geoffrey Stone, Laurence Tribe & friends, Koh and friends again, the Congressional Research Service, the Congressional Research Service again, David Kris, John Dean, Edward Lazarus, Glenn Greenwald, and many more for keeping on top of this.

I removed my name and address and added hyperlinks for this web version. Visible URLs are as included in the letter.

March 15, 2006

The Hon. Mark Dayton
Federal Building, Suite 298
Fort Snelling, MN 55111
Fax: 612-727-5223

SR-123, Russell Office Bldg.
Washington, DC 20510
Fax: 202-228-2186

The Hon. Norm Coleman
2550 University Ave W, Suite 100N
St. Paul, MN 55114
Fax: 651-645-3110

320 Senate Hart Office Building
Washington, DC 20510
Fax: 202-224-1152

Via Fax and U.S. Mail

Dear Senators Dayton and Coleman:

I would like to learn whether you intend to co-sponsor S. Res. 398, relating to the censure of George W. Bush, sponsored by Senator Feingold. I sincerely hope you do.

FISA couldn’t be clearer; it requires the government to apply for a warrant within 72 hours for a domestic wiretap (50 U.S.C. 1805(f)); it sets itself as the exclusive law authorizing domestic wiretaps (18 U.S.C. 2511(2)(f)); and it makes any wiretapping outside of its framework a felony (50 U.S.C. 1809).

The Justice Department’s two purported legal justifications for the warrantless domestic spying program are ridiculously shabby. It claims the Authorization to Use Military Force (AUMF) of Sept. 18, 2001 actually authorized an exception to FISA (without you, the lawmakers, being aware of it). However, FISA itself also specifies that in case of a declaration of war, domestic wiretaps may be used for fifteen days before applying for a warrant (50 U.S.C. 1811). An AUMF is less grave than an actual declaration of war. It might plausibly have justified for the fifteen day exception – but not an exception for the past four years and into the indefinite future. Furthermore, for a later act to have repealed the very detailed and elaborate provisions of FISA would have required “overwhelming evidence” and that “the earlier and later statutes are irreconcilable.” J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 137, 141-42 (2001).

Legal scholars from across the spectrum have concluded the same thing – even George W. Bush’s own former Assistant Deputy Attorney General for national security, David S. Kris, concluded that “It is essentially impossible to read it [i.e., the AUMF] as repealing FISA’s exclusivity provision.” (http://www.washingtonpost.com/wp-srv/nation/
documents/NSAProgramQuestions.pdf – see also “Ex-Justice Lawyer Rips Case for Spying: White House's Legal Justifications Called Weak”, Washington Post, Thursday, March 9, 2006; Page A03; http://www.washingtonpost.com/wp-dyn/content/
article/2006/03/08/AR2006030802360.html)

The Justice Department’s second supposed justification derives from Article II of the Constitution, which the Department of Justice claimed in its memo of January 19, 2006 (“Legal Authorities Supporting the Activities of the National Security Agency Described by the President”, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf) gives the President authority to act without regard to federal law due to an alleged exclusive authority over “the means and methods of engaging the enemy”. This claim is patently refuted by the plain language of the Constitution, which gives Congress the exclusive power to “make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”; which also gives Congress the exclusive power “To make Rules for the Government and Regulation of the land and naval Forces”; and which specifically obligates the President to “take Care that the Laws be faithfully executed”.

Furthermore, every single time throughout American history that the U.S. Supreme Court has addressed the question of whether the President is authorized to defy federal law, it has rejected such an authority. See e.g. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804); Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Rasul v. Bush, 542 U.S. 466 (2004). In fact, in Rasul, the Bush administration argued that the very same purported exclusive Article II authority prohibited construing a statute to restrain the President’s actions. The Supreme Court flatly rejected this asserted power. The fact that the DOJ memo goes 42 pages without once making reference to Rasul, despite that it is the one precedent most directly controlling of the administration’s position, clearly shows (besides that the DOJ lawyers are violating legal ethics) that the Article II argument is based on simply ignoring contrary law.

The administration’s legal arguments are therefore transparently bogus. With no legal escape hatch, the plain fact remains that the President violated federal law and continues to do so. Congress must respond to put a stop to this now, or a precedent will be created that the Constitutional checks and balances do not apply to the President. This concern was echoed by Bruce Fein, former Assistant Deputy Attorney General under Ronald Reagan: “On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.” (The Diane Rehm Show, National Public Radio, WAMU, December 19, 2005; http://www.wamu.org/programs/dr/05/12/19.php)

That’s what concerns me, and I suspect that’s also a large part of the reason why the President’s approval ratings resemble Nixon’s at the climax of Watergate. I don’t really care about wiretapping; if Congress had passed a law beforehand authorizing the NSA program, I would feel fine about it (although even in that case it is doubtful Congress would have authority to pass such a law in the face of the Fourth Amendment). What concerns me is that the President has openly and defiantly admitted to violating federal law, and claimed the authority to continue doing so as he sees fit.

Mr. Bush has a 33% approval rating (“Bush Approval Falls to 33%, Congress Earns Rare Praise”, The Pew Research Center, March 15, 2006; http://people-press.org/reports/display.php3?ReportID=271) in large part because the vast majority of American people condemn his usurpation of the Constitutional system of checks and balances. It is dramatic evidence that we the public are yearning for Congress to reign him in. While Congress is of course obligated to investigate his activities further, no further investigation is needed to know that the President has violated federal law; his own admission of that fact is clear.

The censure resolution is emininently justified and sorely needed. Please contact me at the address below to let me know if you will be supporting it, and what additional actions you will be taking in response to President Bush’s warrantless domestic spying program and to his claims to be authorized to ignore federal law.


Yours truly...