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Thread: FBI Raid Hits a Constitutional Nerve by DANA MILBANK

  1. #1
    http://www.washingtonpost.com/wp-dyn...3001102_2.html

    FBI Raid Hits a Constitutional Nerve

    By Dana Milbank
    Wednesday, May 31, 2006; Page A02

    When asked to hold hearings on the rendition and torture of terrorism suspects, House Judiciary Committee Chairman James Sensenbrenner Jr. (R-Wis.) respectfully declined.

    Invited repeatedly to probe the Bush administration's leaking of a CIA operative's identity, the chairman sent his regrets.
    Urged to have hearings dedicated to the administration's warrantless eavesdropping, Sensenbrenner demurred once more.

    But when FBI agents searched a congressional office 11 days ago, Sensenbrenner went up to the attic and found his gavel.

    Yesterday, he held the first of at least four hearings into the raid -- the debut was dispassionately titled "Reckless Justice" -- and announced that he will haul the attorney general and FBI director before his committee. He also vowed that he will "promptly" write legislation to prevent a recurrence.

    Even before the expert witnesses were sworn in yesterday, Sensenbrenner said his mind was made up. "Documents having nothing whatsoever to do with any crime," he lectured absent administration officials, were "seized by the executive branch without constitutional authority."

    The four witnesses performed in the perfect harmony of an amen chorus.

    "A wholesale constitutional violation," said former House lawyer Charles Tiefer.

    "Unconstitutional," judged constitutional lawyer Bruce Fein.

    "Abandonment of fundamental law," said former congressman Bob Walker (R-Pa.). "A recipe for constitutional crisis."

    "A profound and almost gratuitous insult," contributed George Washington University law professor Jonathan Turley. "Raw arrogance."

    The lawmakers were not entirely at ease in their new role as sentinels of the Constitution; only six of the panel's 40 members could pull themselves away from the demands of the Memorial Day recess to attend the hearing. "The American people do not begin to understand why there is a concern," allowed Rep. Darrell Issa (R-Calif.).
    The lack of understanding may have something to do with the fact that the committee is defending the prerogatives of Rep. William Jefferson (D-La.), who allegedly stashed $90,000 in bribe money in his freezer. The members and their witnesses found it necessary to pronounce nine times in 90 minutes that nobody is "above the law." Even the panel's handpicked experts argued that it was the copying of Jefferson's computer files, not the search itself, that was illegal.

    Democrats needled the majority about the fresh discovery of the committee's oversight authority. Rep. Chris Van Hollen (Md.) reminded his colleagues of a "number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress: the torture memorandum, detainees, enemy combatants, signing statements, domestic surveillance, data-mining operations."
    Sensenbrenner took off his glasses and rubbed his eyes.

    But, consistent or not, the lawmakers acted as though they were 17th-century English parliamentarians protecting democracy from King Charles. "For the first time in 219 years, the Department of Justice entered a Capitol Hill office and removed documents and materials without the involvement of a single legal representative of Congress," Sensenbrenner intoned.

    Ranking Democrat John Conyers Jr. (Mich.) also recalled "219 years in which, in this history of the United States, [we] have been able to avoid the spectacle of the Federal Bureau of Investigation swooping down into the Capitol."

    Rep. Bobby Scott (D-Va.) preferred round numbers. "Over 200 years, it hasn't happened," he said.

    And the chorus sang. "The Justice Department has sought to redefine a relationship 219 years in the making" (Walker). "Over 200 years, this hasn't occurred" (Turley).

    "Professor Tiefer," asked Conyers, "what do you think was behind the fact that we haven't ever had this happen before in 219 years?"

    The professor said that this time "they were simply in a hurry."

    Sensenbrenner sought to summarize the findings. "It's worked for 219 years," he concluded. "There's no reason to ignore the 219 years of success of separation of powers."

    A couple of the witnesses tried to suggest, gently, that Congress was arriving a bit late to the party. Fein called the office raid "simply an additional instrument of the Bush administration to cow Congress," including "a claim of inherent presidential authority to flout any statute that he thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering, or committing torture."

    This all seemed to wake up freshman Rep. Louie Gohmert (R-Tex.). "I've been so much more concerned about the judiciary overreaching in power, and I really had not looked at the executive," he confessed. But after the "phone logs and things," he added, "I've become more concerned."

    Issa became dramatic. "We have the power to impeach the attorney general," he reminded his peers, before quickly adding: "I think we're a couple of shakes short of a quorum for that purpose."

    "Not yet," Sensenbrenner agreed

  2. #2
    http://www.washingtonpost.com/wp-dyn...3001102_2.html

    FBI Raid Hits a Constitutional Nerve

    By Dana Milbank
    Wednesday, May 31, 2006; Page A02

    When asked to hold hearings on the rendition and torture of terrorism suspects, House Judiciary Committee Chairman James Sensenbrenner Jr. (R-Wis.) respectfully declined.

    Invited repeatedly to probe the Bush administration's leaking of a CIA operative's identity, the chairman sent his regrets.
    Urged to have hearings dedicated to the administration's warrantless eavesdropping, Sensenbrenner demurred once more.

    But when FBI agents searched a congressional office 11 days ago, Sensenbrenner went up to the attic and found his gavel.

    Yesterday, he held the first of at least four hearings into the raid -- the debut was dispassionately titled "Reckless Justice" -- and announced that he will haul the attorney general and FBI director before his committee. He also vowed that he will "promptly" write legislation to prevent a recurrence.

    Even before the expert witnesses were sworn in yesterday, Sensenbrenner said his mind was made up. "Documents having nothing whatsoever to do with any crime," he lectured absent administration officials, were "seized by the executive branch without constitutional authority."

    The four witnesses performed in the perfect harmony of an amen chorus.

    "A wholesale constitutional violation," said former House lawyer Charles Tiefer.

    "Unconstitutional," judged constitutional lawyer Bruce Fein.

    "Abandonment of fundamental law," said former congressman Bob Walker (R-Pa.). "A recipe for constitutional crisis."

    "A profound and almost gratuitous insult," contributed George Washington University law professor Jonathan Turley. "Raw arrogance."

    The lawmakers were not entirely at ease in their new role as sentinels of the Constitution; only six of the panel's 40 members could pull themselves away from the demands of the Memorial Day recess to attend the hearing. "The American people do not begin to understand why there is a concern," allowed Rep. Darrell Issa (R-Calif.).
    The lack of understanding may have something to do with the fact that the committee is defending the prerogatives of Rep. William Jefferson (D-La.), who allegedly stashed $90,000 in bribe money in his freezer. The members and their witnesses found it necessary to pronounce nine times in 90 minutes that nobody is "above the law." Even the panel's handpicked experts argued that it was the copying of Jefferson's computer files, not the search itself, that was illegal.

    Democrats needled the majority about the fresh discovery of the committee's oversight authority. Rep. Chris Van Hollen (Md.) reminded his colleagues of a "number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress: the torture memorandum, detainees, enemy combatants, signing statements, domestic surveillance, data-mining operations."
    Sensenbrenner took off his glasses and rubbed his eyes.

    But, consistent or not, the lawmakers acted as though they were 17th-century English parliamentarians protecting democracy from King Charles. "For the first time in 219 years, the Department of Justice entered a Capitol Hill office and removed documents and materials without the involvement of a single legal representative of Congress," Sensenbrenner intoned.

    Ranking Democrat John Conyers Jr. (Mich.) also recalled "219 years in which, in this history of the United States, [we] have been able to avoid the spectacle of the Federal Bureau of Investigation swooping down into the Capitol."

    Rep. Bobby Scott (D-Va.) preferred round numbers. "Over 200 years, it hasn't happened," he said.

    And the chorus sang. "The Justice Department has sought to redefine a relationship 219 years in the making" (Walker). "Over 200 years, this hasn't occurred" (Turley).

    "Professor Tiefer," asked Conyers, "what do you think was behind the fact that we haven't ever had this happen before in 219 years?"

    The professor said that this time "they were simply in a hurry."

    Sensenbrenner sought to summarize the findings. "It's worked for 219 years," he concluded. "There's no reason to ignore the 219 years of success of separation of powers."

    A couple of the witnesses tried to suggest, gently, that Congress was arriving a bit late to the party. Fein called the office raid "simply an additional instrument of the Bush administration to cow Congress," including "a claim of inherent presidential authority to flout any statute that he thinks impedes his ability to gather foreign intelligence, whether opening mail, conducting electronic surveillance, breaking and entering, or committing torture."

    This all seemed to wake up freshman Rep. Louie Gohmert (R-Tex.). "I've been so much more concerned about the judiciary overreaching in power, and I really had not looked at the executive," he confessed. But after the "phone logs and things," he added, "I've become more concerned."

    Issa became dramatic. "We have the power to impeach the attorney general," he reminded his peers, before quickly adding: "I think we're a couple of shakes short of a quorum for that purpose."

    "Not yet," Sensenbrenner agreed

  3. #3
    This is an interesting case that, if not settled through FBI/DOJ-Congress negotiations, will have to be settled in Supreme Court.
    Whatever is the outcome it will set a precedent.

    What I REALLY WONDER is WHY did DOJ/FBI/AG do what they did?

    Didn't they anticipate the Constitutional conflict of "Separation of Powers"?

    If they did (and I assume they must have), then they must have also thought out how to sail the ship and foresaw all the consequences too.

    If they didn't ... let's just say I am not convinced because I give more credit to DOJ/FBI than to belive that they were so naive as to fall into their own trap..

    The fog will clear much later, no need to speculate now.


    Regards,

    IE

  4. #4
    Totally ignoring, of course, that the Congressman had ignored a subpoena for 8 months, and that a warrant for the search was obtained from a federal judge (the third branch of government, remember, established to balance the other two).
    As one pundit I saw this weekend put it, if they want to challenge the validity of the warrant, then they can take it all the way to the Supreme Court. But Congress should have no more rights against a legitimate search warrant, even in its offices, than we as private citizens do.

  5. #5
    But Congress should have no more rights against a legitimate search warrant, even in its offices, than we as private citizens do.
    Congress doesn't just have rights, Congress is part of three branch Government, just as Executive and Judicial branches are.

    Whatever the motivations of Sensenbrenner, Hastert, Pelosi and others, the integrity of Constituional Government must be preserved.

    The question at stakes is: how far can Executive branch reach to fulfill it's Law Enforcement obligations, while not stepping the boundaries that separate and protect various branches of the Federal Government from each other.

    Indeed very tough question, because, as I noted above, "Congress" is NOT a private Citizen, but a branch of Federal Government that has certain immunity to protect it's independence from other branches, and the same rule applies to Executive as well as Judicial branch.

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