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  • Friday, May 26, 2006


    What Does It Take To Get Congress Upset at Executive Branch?

    In his blog post, quoted herein, Professor Jack Balkin articulately points out the maddening hypocrisy that Congress is upset over the execution of a court-approved search warrant at the office of a member of Congress, while barely going through the motions of investigating real abuses of Executive Branch authority, such as providing false justifications for making war on Iraq, and the NSA's warrantless spying on Americans:

    A corrupt Congress is shocked to discover a lawless Executive

    I've noticed several attempts in the news to connect the FBI's raid on
    Congressman Jefferson's office with the Bush Administration's heavy handed
    assertion of executive authority.

    I think this is a distraction. There is no constitutional or legal bar
    to the search that I am aware of. The Speech and Debate Clause does not prohibit
    it. Although as a matter of tradition and comity, the Executive should avoid
    invading the offices of Congressmen and Senators whenever possible, in this case
    the warrant authorizing the search came only after Congressman Jefferson refused
    to obey a subpoena for documents. The Speech and Debate clause, and indeed, the
    principles of respect and comity between the branches should not be employed to
    insulate government officials from liability for acts of illegality and

    And that is the real issue: Illegality and corruption, both by members
    of the Executive branch *and* by members of Congress.

    The Bush Administration has, over the past six years, detained American
    citizens without any of the protections of the Bill of Rights, engaged in cruel,
    inhuman and degrading treatment of detainees, imposed new forms of secrecy to
    insulate itself from oversight both by the Press and by Congress, used the state
    secrets privilege to shut down any investigation into its mistreatment of
    detainees, hid and prevaricated about the evidence justifying, the reasons for,
    and the cost of Iraqi war, and begun a massive spying program on American

    Throughout all of these events, the United States Congress has been
    essentially supine, unable or unwilling to lift a finger to oppose an executive
    branch that was simultaneously incompetent, arrogant and out of control. And
    now, when the FBI catches redhanded a Congressman engaged in the most egregious
    act of corruption, *now* members of Congress are upset that the Executive is
    asserting too much authority.

    They have their nerve.

    Quite frankly, I find the bipartisan closing of ranks over this issue
    disgusting. If Congressmen are interested in Executive overreaching, they should
    start demanding that the President justify his NSA program; instead they doing
    everything they can to paper over its illegalities. They should hold hearings on
    how the Executive misused and manipulated intelligence reports, hearings that
    have repeatedly been promised and have repeatedly been postponed. They should
    hold hearings on the Administrations's policies of no-bid contracts in Iraq and
    elsewhere, and the many reports of corruption, incompetence, and war
    profiteering by these very same contractors who didn't have to engage in
    competition or oversight. They should investigate the President's decisions
    about torture, about rendition, about detention policies, about, well, you name
    it-- all the incompetent and corrupt activities of this most incompetent and
    corrupt Administration.

    Instead of being upset about the President spying on Americans without
    a warrant, and in violation of federal law, the members of the U.S. Congress are
    upset about the FBI searching a Congressman's office with a legal warrant.
    Instead of being upset about the cruel, inhuman and degrading tactics of the CIA
    and military interrogators, members of the U.S. Congress are upset that a
    corrupt Congressman's office has been disturbed. Instead of being upset about
    abuses of government contracting and incompetence that have cost the tax payers
    countless sums of money and sapped resources from our troops overseas, members
    of Congress are busy protecting corruption in the halls of Congress

    Make no mistake: the real reason why Congress is so concerned about the
    raid on Jefferson's office is that many of them know that corruption within
    Congress is rampant. If the FBI and the Justice Department can start getting
    serious about investigating corruption in Congress, many of their colleagues
    (and possibly they themselves) could be next. Is it any accident, do you think,
    that instead of trumpeting corruption by a Democratic Congressman, Speaker
    Hastert-- who himself is rumored to be under investigation in the Abramoff
    affair-- is objecting loudly to the search of Jefferson's office?

    The American Constitution is premised on the idea that any Executive
    overreaching that might take us on the path to tyranny and dictatorship would be
    met with Congressional objection and Congressional oversight. For six years we
    have been subjected to an arrogant, self-righteous, and incompetent
    Administration, which has grabbed for power and avoided accountability in every
    way it could, chipping away at Americans' proud traditions of freedom, harming
    our country's interests around the world and undermining the deliberative
    processes that produce sound policy and good governance. It is an Administration
    blinded by smug self-righteousness, devoted not to the development of competent
    and sound policies for the governance of our country, but to the concentration
    and perpetuation of its own power. But at the moment that we need the Congress
    most, it is feckless, corrupt, and venal, offering no resistance to mounting
    evidence of this Administration's illegality and incompetence. If Congress now
    finds that Executive power is encroaching a bit too close for comfort, it is
    poetic justice, for this Congress has thoroughly abdicated its constitutional
    responsibilities to protect the American people from Executive overreaching.

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