On Randi: One Simple Way to Totally Debunk Gonzales

[Vyan]

As Posted on DailyKos...

On my second time calling in and speaking with Air America host Randi Rhodes, I had a chance to discuss a critical flaw in the Gonzales arguments defending the NSA program. Through all the various legal jousting, ducking and dodging - there is one issue on which Gonzales is completely, flatly wrong. It's an issue that sits like a lynchpin in their arguments, and once pulled causes the NSA program to collapse on itself like a house of cards.

That lynchpin is called Hamdi v Rumsfeld.

On Randi's show - I yanked on that lynchpin like lawnmower chain. All you need is two steps - two facts - and Gonzales goes down like a sack of potatoes.

...

Step One:

Under Hamdi the Supremes established that judicial review would be neccesary before the executive branch could override 18 USC 4001 and declare a U.S. Citizen as an enemy combatant.

Folks, this is simple - since you still need judicial review under Hamdi and the post 9-11 Authorization to Use Military Force, you still need judicial review for domestic signal intelligence and FISA is still applicable.

FISA is the Law, Stupid.

...

Step Two:

Article I Section 8 Paragraph 14 of the Constitution, which grants to the Congress the power...

"To make Rules for the Government and Regulation of the land and naval Forces;"

It may be true that foreign matters of state are the exclusive province of the executive, but this clause makes it clear that the Rules and Regulations regarding the armed forces - which would include FISA since the NSA are a part of the DoD - are under the province of Congress. For that matter so are the War Powers. Congress declares War, not the President. Congress establishes the rules of engagement for the armed forces, not the President. Congress has the option, during War, to suspend Habeas Corpus, not the President. Congress makes the laws and the President abides by them.

Urm...not this President.

http://www.dailykos.com/story/2006/2/7/115755/1163

One, Two - down for the Count.

Vyan

[stepnw1f]

1. No Shit

Has anyone told our Senators about this?

[The Backlash Cometh]

2. I just don't understand why incredibly sharp people don't seem to

understand that they're talking to a jury of common people. The wordier they get, the more they lose the jury. Cut to the chase already.

[BR_Parkway]

4. You mean the Senators who have big staffs to research and prepare

them for these hearings? Especially when you know what the witness is going to say? No wonder they're all in Congress, they'd totally suck in an actual courtroom.

[Vyan]

5. Call them and tell them....

I did. Call Congress Toll Free [phone]. Just ask for Senator Kennedy, Senator Feingold, Senator Feinstein, Senator Biden, Senator Graham (yeah I know, just try he's listening) and Senator Specter.

Gonzales lied about Hamdi.

Pound him with it like a Red-headed step child.

Vyan

[Vyan]

6. I did...

But we need to keep telling them. Call Congress Toll free at [phone] and let 'em have it. It's a GIMME, fr' crying out loud.

Vyan

[BlueEyedSon]

3. k/r

[freepotter]

7. Easier yet...

The 4th Amendment to the Constitution guarantees us protection against warrantless searches.
Did I miss something? Was there a Constitutional Amendment passed while I wasn't looking? Even Congress can't do that without a super majority of states approving it. Doesn't matter what other laws they passed, if we didn't amend the Constitution, then Shrubby is just SOL.

[Vyan]

8. They're trying to use Hamdi to get around that.

Gonzales argument is that Congress exercized it's ability to temporarily suspend Habeas Corpus during Wartime when it passed the AUMF.

Under Article I, Section 9 - which set limits on the Powers of Congress

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

SCOTUS essentially agreed with Gonzales when they granted that the AUMF allowed Hamdi to be declared as an "Enemy Combatant" which would violate his 4th Amendment rights. But again, the SCOTUS also required that this be REVIEWED BY A COURT, and that's where Gonzales runs out of legal alleys to duck into. He's cornered. Trapped. Like a Rat.

Under Gonzales own logic, a Judge has to review the "enemy combatant" decision - therefore FISA should be allowed to reviewing the NSA wiretaps and failure to do so is violation of the law. Fives years for each offense.

Vyan