While Judge Sam Alito’s testimony before the Senate Judiciary Committee has confirmed that he is not one of their number, a dwindling cadre of public servants still take seriously the dictates of the Constitution and the intents of it authors. And there is no more serious dictate of the document — and no more solidly established intent — than the one that requires the Congress to serve as a check and a balance against the excesses of the executive branch. Most particularly in a time of war, the founders intended for the Congress to question, challenge and constrain the president and his aides so that never again would Americans be subjected to the illegitimate, unwarranted and illegal dictates of a King George.
This mandate, so well-established and so thoroughly grounded in history and tradition, places a particularly high demand on the chairman of the House Judiciary Committee. It is in the House, the Constitution tells us, that the work of holding an out-of-control president to account, must begin — and it is on the Judiciary Committee that the process is initiated.
The committee’s current chair, Representative James Sensenbrenner, R-Wisconsin, should understand this charge better than most. After all, he was at the center of the effort in 1998 and 1999 to impeach former President Bill Clinton.
No matter what one thought of the Clinton impeachment process, it should now be beyond debate that if the misdeeds of the former president required both examination and action by the Judiciary Committee — as Sensenbrenner so obvioualy believed– then the misdeeds of the current president must surely merit a similar response.
The memory of the Clinton impeachment has already inspired the most delicious sloganeering, beginning with the t-shirt that declares: “Impeachment: It’s Not Just for Oral Sex Anymore.” But this is about more than t-shirts and fingerpointing. As the chair of the Judiciary Committee, Sensenbrenner has a Constitutionally-mandated responsibility to take seriously the charges of executive lawbreaking and impropriety that are currently in play. If he cannot execute this responsibility in a reasoned and bipartisan manner, then he has a duty to step aside.
That is a serious choice. But, surely, the issues that are at stake demand such seriousness — as the American people have clearly indicated. A new Zogby Poll shows that 52 percent of Americas believe that, if George Bush violated the law when he ordered security agencies to engage in warrantless wiretaps on the communications of U.S. citizens who were accused of no crimes, the president should be impeached. So widespread is this faith that almost one quarter of those who identified themselves as “very conservative” expressed support for impeachment as a response to the spying scandal.
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So far, however, Sensenbrenner has allowed his partisanship to prevent him from even beginning to execute his Constitutional duties.When Democratic members of the Judiciary Committee demanded that the body conduct an inquiry into illegal spying by the Bush administration, Sensenbrenner refused them.
Because of the consequence of the issues involved, Representative John Conyers, the ranking Democrat on the committee, convened an extraordinary session last week without the official sanction that only the committee chairman can convey.
“Last month all 17 House Judiciary Democrats called on Chairman Sensenbrenner to convene hearings to investigate the President’s use of the National Security Agency to conduct surveillance involving U.S. citizens on U.S. soil, in apparent contravention of the Foreign Intelligence Surveillance Act. As our request has since been ignored, it is our job, as Members of Congress, to review the program and consider whether our criminal laws have been violated and our citizen’s constitutional rights trampled upon,” explained Conyers, who has played a critical role in investigations of wrongdoing by Democratic and Republican presidents since the days when Lyndon Johnson occupied the White House. “We simply cannot tolerate a situation where the Administration is operating as prosecutor, judge and jury and excluding Congress and the courts from providing any meaningful check or balance to the process.”
Members of Congress who attended the hearing — Conyers and a half dozen other Democrats — heard George Washington University law professor Jonathan Turley refer to the wiretapping ordered by Bush as ”an intelligence operation in search of a legal rationale.”Without a doubt, Turley added, ”What the president ordered in this case was a crime,” said Turley, who bluntly told the gathering that Sensenbrenner and other House Republicans have set a dangerous precedent by refusing to permit oversight hearings.
Turley’s comments on the troubling nature of the president’s wiretapping initiative — and the failure of House Republicans to aggressively investigate and challenge that initiative — were echoed by Bruce Fein, who served as a deputy Attorney General for the Reagan administration. In addition to suggesting that the implausibility of Bush’s claim that he was acting within the law should be self evident, Fein warned presidential powers must always be regulated in order to halt abuses of the moment and to prevent the development over time of an imperial presidency that can no longer be checked by Congress.
The Conyers hearing had an impact on the members who bothered to attend it. Representative Jerrold Nadler, D-New York, the senior Democrat on the Judiciary Committee’s panel on the Constitution, responded to the testimony by announcing that the Judiciary Committee needs to explore whether President Bush should be the subject of an impeachment inquiry for high crimes and misdemeanors stemming from his authorization of illegal spying.
Sensenbrenner might well disagree with that assessment. He has every right to such a sentiment. But he does not have a right to prevent the Judiciary Committee as a whole from entertaining these most fundamental questions about the abuse of presidential power. If Sensenbrenner does not recognize this standard, then he has no place chairing the committee that is charged with taking the lead in the application of Congressional checks and balances — up to and including impeachment — as an antidote to executive excess.
