Letters to the Editor
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@Michael Harold
This sounds like the closing argument for the Bush/Cheney/Gonzales/Rumsfeld/Rice defense at the Hague.
Oh, come now. I was being descriptive, not prescriptive. No way in hell could I ever have sat there and lied like that. BUT, if they were my clients, I'd be telling them to do all the fudging and smoke and mirrors bullshit that they did.
But we are talking about tort actions, smoking suits, in which most plaintiffs should not prevail if we are going to agree that adults have personal agency. Not a freakin' war crimes trial.
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kovie's optimism on oversight is refreshing
It's encouraging to see someone pointing out that there may still be hope. I would add that as Congress comes back into session this week, many members will be digesting the poll information showing a clear majority in favor of impeaching Cheney and nearly 50% in favor of impeaching Bush. I think it will be very difficult for them to ignore this level of dissatisfaction.
Let's hope that this result is used to bolster their enthusiasm for the oversight hearings. As pointed out, these hearings would then produce the raw material for either legislation to repair the damage and/or eventual impeachment.
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Ché Pasa
You may well be right and me wrong. Unlike more than a few folks I've tussled with at Daily Kos recently, I do not adopt an "I'm right, you're wrong, now shut up" attitude. It's one of the reasons I often turn to this blog for more reasoned and mature analyses, discussions and debates. I'd much rather be proved wrong here than shouted at as being wrong there.
In any case, I'm trying to separate the partial failings of this congress on Iraq and other legislation with what I view as the so-far quite commendable record of certain (but sadly not all--where the hell have Reyes and Rockefeller been these past 6 months?!?) committees on oversight. So long as this oversight is within theses committee--which it should be unless and until impeachment becomes an issue--it will be up to their chairs, and the leadership, and not the whole of congress, as to how it proceeds.
And it is to a large extent THAT reality, and these chairs' and their leadership's tacit support of oversight to date, that encourages me. Which is why I'm not convinced that there will be deals unfavorable to congress struck. I suspect that even folks like Schumer and Emanuel want these committees to persue aggressive oversight, if not on principle, than for its political implications in '08 ('74 and '76 were indeed sweet years for Dems IIRC).
But like I said, I may be wrong, and you right. And since it makes no difference what we think, I'm choosing to take a more optimistic stance on this. But grounded, I think, in some reality. (But then again everyone wants to think that about themselves. ;-) )
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Congress should not hide from it's "advise an consent" role in the government
There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program.
In essence, this is a valid, although disappointing decision. If anyone in the public could challenge FISA, it would be completely ineffective at it's intended purpose. I think we all want an effective, yet constitutional and documented process. Now congress must act and do the job they have all sworn to do. Uphold the Constitution of the United States.
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@Mona re: No way in hell could I ever have sat there and lied like that.
And that's one of the things I like about you.
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@DCLaw
I can say with very little doubt that if we were to abandon the requirement of standing in this country, the balance of power among the three branches of our government would tilt significantly toward the judicial, because literally any person could invoke the power of the courts to stop the efforts and activities of the other branches. This is to say nothing of the overwhelming effect removing the standing requirement would have on the sheer number of cases the courts would have to hear.
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Standing is derived from the doctrine of separation of powers, and "case or controversy" clause of Article III of the Constitution, which were indeed creations of the Founders. There are many constitutional features that were not specifically and expressly mentioned by the Founders, which nevertheless arise from the bolder outlines of the doctrines of limited government, separation of powers, and so on.
Sorry, I didn't notice your previous post until you flagged it with the later one.
I suppose what I was saying earlier was that the concept of standing derives from common law. Neither Article III nor the rest of the Constitution mentions the word, and a brief perusal of FindLaw seems to suggest that most of the development of the concept of standing as applied to federal and constitutional issues was done long after the Founders. Obviously such law is grounded in their work, but that's really not the same as them inventing it. Of course, that's all just a quibble, and in any case, I'm obviously no expert.
The bigger question was whether removing standing would put too much power in the hands of the judiciary. Again, as I understand it, the European method is that, for constitutional (or similar) issues, there are special mechanisms whereby complaints may be brought to the court without standing. The reason for these mechanisms is precisely because the effects of federal (or the equivalent) law may be diffuse, long-delayed, difficult to measure, or secretive. Essentially, it just consists of a relaxation of the standing requirements for certain classes of important issues. (I don't know how the courts avoid being overwhelmed with cases, but I can think of plenty of gatekeeping solutions, and in any case, empirically speaking, European countries with this system somehow manage to do just fine.) As for the balance of power, you're right, European countries do have more scope for the parliament overruling the judiciary, which does balance out the judiciary's greater scope to rule.
For the US, I'd just be in favor of explicitly weakened requirements for standing for federal and constitutional issues. Indeed, the requirements were much weaker as recently as the 50s, as I understand it. But mainly, I think quite a bit could be changed in the realm of standing without either a) jamming the bureaucracy with cases, or b) handing too much power to judiciary. (I remember a professor once inveighing against the idea of "Balance of power" between the branches, because it implied even the slightest change would totally unbalance things, whereas actually, the "balance" has shifted back and forth quite a bit over the centuries.) In any case, European countries seem to be able to maintain a weaker standing requirement without crushing their bureaucracies, handing overwhelming power to the judiciary, or requiring the parliament to be constantly overruling the judiciary. Having studied a number of nations whose legal systems were built out of the pieces of older, quite disparate legal systems, it seems to me that there's plenty of scope to throw out the baby without the bath-water.