Just a reminder


Democrats willing to overlook wiretapping when THEIR guy does it
Andrew McCarthy reminds us of some not so distant history.

"The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency."
  
That sure sounds like it could have been written by John Ashcroft. Or Alberto Gonzales. Or one of the many Bush-administration officials vigorously defending the NSA's warrantless monitoring of enemy communications into and out of the homeland. After all, it succinctly states the best explanation for why President Bush was empowered to go beyond the strictures of the 1978 Foreign Intelligence Surveillance Act (FISA) and create a terrorist-surveillance program, designed to prevent a reprise of 9/11 ... or worse.

But the assertion does not come from the Bush administration at all. Nor from Fox News, Rush Limbaugh, National Review, or any of the other precincts limned by today's American Left as megaphones for the president's dreaded "domestic spying program."

No, for this clear statement of principle, we have the Clinton administration to thank. Specifically, then-Attorney General Janet Reno's Office of Legal Counsel (OLC) — the Justice Department's elite unit of lawyers for the lawyers. It was chiseled into a formal 1994 OLC opinion, aptly entitled "The President's Authority to Decline to Execute Unconstitutional Statutes," by then-Assistant Attorney General Walter Dellinger, OLC's top gun.

"Where the President believes that an enactment [by Congress] unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it," Dellinger explained. Far from a novel idea, his opinion elaborates that: "the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable."

Evidently, sometime between 1994 and 2006, it suddenly got assailable. In January, as controversy was stoked over the NSA program's much-decried violation of FISA's purported requirement that the president of the United States ask a judge's permission to intercept enemy communications in wartime, Dellinger joined several other "scholars of constitutional law and former government officials" — including several who served in the Clinton Justice Department — in ceremoniously submitting to Congress a letter-brief castigating the Bush administration's imperial lawlessness.

I bring this up not because I am interested in defending President Bush. I bring this up because certain Democrats will go too far, but only as long as a Democrat is in the White House. The whole argument boils down to "It's illegal because one of our guys isn't giving the orders."

— NeoWayland

Posted: Tue - February 7, 2006 at 06:19 AM  Tag


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