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Sunday, December 18, 2005
Constitutional Crisis
[audio post]
George W. Bush has plunged the country into the kind of Constitutional crisis that was resolved in 1974 by the issuance of articles of impeachment against Richard Nixon and Nixon's subsequent resignation. Make no mistake about it -- the Fourth Amendment of the Constitution covers telephone communications, and warrants are required for wiretaps. (See for example, Berger v. New York, 388 U.S. 41 [1967]*). Federal judges can and do quickly issue warrants authorizing wiretaps whenever the government shows the need. George W. Bush cannot and does not claim that the judges have been stingy with such warrants; rather he claims that the legal and constitutional requirements simply do not apply to him. As if that were not bad enough, he also claims the authority to spy on peaceable American citizens who are engaging in traditional American freedom of speech and assembly. Make no mistake about this -- Bush's claim of the authority to wiretap Americans' telephones without warrants and to spy on peaceful First Amendment activities is in brazen defiance of the Constitution.
George W. Bush's arrogant claim that the "executive power" referenced in Article II of the Constitution authorizes him to override the First and Fourth Amendments is a declaration of war against the very notion of a Constitution, because if his claim wins out, then there are no longer any limits on what the chief executive can do, and we will be living under dictatorship instead of in a democracy. To George W. Bush, Dick Cheney, and Alberto Gonzalez, the Constitutional rights and liberties of Americans can be wiped away by a president's executive decree -- my dear friends and fellow Texans, a Bill of Rights that exists only at the sufferance of executive power is not a Bill of Rights at all, and an executive who claims such power is no longer the executor of Constitutional government, but has become by such actions an unconstitutional usurper. My words are provocative, because the situation is provocative when the U.S. president makes open war on the Bill of Rights that so many fearless American patriots sacrificed so much to preserve, protect and defend.
If Bush's claim of the power to wiretap the telephone communications of Americans without warrants and to spy on peaceful American citizens is not blocked now, he will have prevailed in claiming that he can overrule our Bill of Rights by executive decree. There is no tomorrow on this one. There is no middle ground on this, no room for normal protocols. George W. Bush has declared that he has been wiretapping Americans without warrants, that he has the power to do so, and that he is going to continue to do so. He has declared that he is going to continue to spy on Americans' freedom of speech and assembly. Bush has thrown down the gauntlet, and he has dared the people to pick it up.
A Texas Attorney General who understood that his job was to be the People's Lawyer would pick up that gauntlet. The Bill of Rights belongs just as much to the people of Texas as it does to anyone else in America. As Texas Attorney General I will fulfill my duty to preserve, protect, and defend the Constitution, by fighting on behalf of Texans with every means and resource at my disposal against any and all such anti-constitutional federal usurpations.
For example, I would move swiftly into the courts as the lawyer for the people of Texas to challenge the Bushite government's defiance of the Bill of Rights and have their actions declared unconstitutional. The current Texas Attorney General clearly will not challenge them, since he is a Bushite mouthpiece and will not bite the hand of the master who appointed him to statewide Texas public office. Probably no other Texas public official will challenge them either; but under the Texas Constitution it is the Attorney General, more than other state office-holder, whom the people of Texas most depend upon to fight for their Constitutional rights and liberties; and I will do so against all comers.
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*United States Supreme Court Justice Tom Clark in Berger v. New York (1967): "They [previous Supreme Court decisions] found 'conversation' was within the Fourth Amendment's protections, and that the use of electronic devices to capture it was a 'search' within the meaning of the Amendment, and we so hold. ...The purpose of the probable cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed." (Justice Tom Clark was from Texas.) Justice Louis Brandeis, 77 years ago in Olmstead v. United States, 277 U.S. 438 (1928): "The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ...As means of espionage, writs of assistance and general warrants [two examples of British abuse that contributed to the American Revolution] are but puny instruments of tyranny and oppression when compared with wire tapping. ...The makers of our Constitution... conferred, as against the government, the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
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posted by snarko! at 10:33 PM
 
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