[RP TownTalk] Md senator helps pass Telecom immunity

[Alan Thompson and Sarah Wayland]

Dear Roland,

You know, when you write me such a nice letter but make the "To:" be  
towntalk, and just cc me, I don't know exactly how to interpret it.   
I'll just let that go, I guess. I'm not going to try to top you on  
the "disagreement" front, but will remain respectfully in  
disagreement, and within the posting guidelines.

I didn't ever think that TownTalk was going to be a forum on  
constitutional law, but, hey, "anything of interest" is "anything of  
interest," right?

> Article 2 is Article 2 is Article 2.


Article 2 is Article 2.  You're right.  But the Fourth Amendment  
(prohibiting unreasonable searches and seizures, for those of you  
reading along) is the Fourth Amendment.  When interpreting Article 2,  
you have to keep the Fourth Amendment in mind (and the Eighth, but  
that's another discussion).

Back to the main point: the courts have the power to review actions  
taken by the executive branch under Article 2, period.  That  
separation of powers is the foundation of our government.  So, if the  
Executive Branch violates other sections of the Constitution while  
exercising valid Article 2 powers, the courts can intervene and  
insist that the violation stop (for example, and much to the point,  
the December 18, 2003, decision by the Second Circuit Court of  
Appeals in the case of José Padilla that "the President lacked  
inherent constitutional authority as Commander-in-Chief to detain  
American citizens on American soil outside a zone of combat"; that  
particular point was never reviewed by the Supreme Court and is thus  
still an open question, admittedly, but NO ONE suggested that the  
Judicial Branch did not have the right to review the President's  
actions).

> I suppose you and I differ most on whether the telecom surveillance
> directed by the executive branch is "patently legal".


That IS a big point of disagreement -- I am dubious on that point,  
and I think the courts should review what happened.  And I agree with  
Senator Dodd that if it is so "patently legal" then the words "motion  
for summary judgement and dismissal" should be all that the telecom's  
attorneys should have to say.

Your invocation of the Authorization for Use of Military Force (AUMF)  
doesn't change my mind a bit -- the congress cannot pass laws that  
violate the constitution.  If the Administration violated the  
Constitution but says "the AUMF said I could", well, sorry, the  
Constitution trumps the AUMF.  (I could open another front in this  
discussion about amending/repealing the AUMF, but I'm getting tired.)

> I think I can make my case best by referring again to the power of the
> pardon.  Presidents can pardon *anyone*.


The "power of the pardon" is not limited (much) by the rest of the  
constitution.  Article 2 is.  I guess he could PARDON the telecoms  
without getting into constitutional hot water. ;-)

> I do, however, urge you to vote, as I would urge anyone who disagrees
> with me to vote.  And I urge you to keep these matters foremost when
> you do, because (again, I hope you and I agree) these are among the
> most important issues we face when we choose our next leader.

I will vote -- I've missed only one election (school board election  
in 1991) since turning 18, and I *do* keep matters like this in mind  
when I consider the candidates.  I encourage EVERYONE to vote,  
regardless of how they feel on any issue, and to educate themselves  
on the positions and backgrounds of the candidates before casting  
their vote.

I also encourage them to contact their Senators and Representative to  
express their opinion on the issue at hand.  People should be more  
involved in government than just tapping a touch screen every few  
years, and letting your reps know your opinion is an important part  
of US democracy.

Warm regards,

Alan

> PS You are so more eloquenter than any old Senator Dodd.


I am NOT more eloquenter than Senator Dodd. He probably places  
punctuation and capitalizes more consistently than I do, too.

P.P.S.  Roland's original note (lightly excerpted here) is at
http://riverdale-park.org/pipermail/towntalk/2008-February/003527.html

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