Tuesday, February 07, 2006

Gonzales Chock Full of Phony Rationales

It was gratifying to see the AG use an argument I have used:
"But we are a nation governed by written laws," Mr. Gonzales said, "not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president. And in this case, those plain words could not be clearer."

But "the stated intent of the legislature" is always an argument I hear when courts are interpreting statutes. Stated intent of legislators is not law. That is why legislators have such huge arguments over the wording of laws. On the floor of the Senate or House, a Congressperson may declare a benign and beneficial intent behind a law; the argument from the other side is that, regardless of stated intent, there may be a particular undesireable effect through the interpretation of the plain language of the law.

Thing is, the 1978 law against domestic spying contained plain language, while the AUMF which Gonzales relies on for its "plain language" contains no such thing with regards to domestic spying. The general rule courts go by is that the specific law takes precedence over a general law which requires interpretation.

But Gonzales wasn't done:
But the administration's reading is, Mr. Gonzales said, "fairly possible." Given that, he continued, the Constitution requires deference to the executive branch's interpretation under a doctrine known as constitutional avoidance, which counsels against reading statutes in a way that creates constitutional conflict when another reasonable interpretation is available.

In a letter to Congress last week, a group of 14 constitutional scholars and former government officials said that "FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply."

Has he run out or rationales yet? Nope:
The administration has a fallback position, but it was not one Mr. Gonzales discussed much yesterday. Even if the force authorization did nothing to alter the restrictions set out in the 1978 law, he said, the president's constitutional authority as commander in chief may by itself allow the surveillance program.

In other words, the President can do whatever he wants for as long as he perceives a threat without anyone saying he's gone too far. No checks, no balances ever again.

That is, until a Democrat wins the White House.

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