This brings us to the second enquiry; which is . . . [i]f he has a right, and that right has been violated, do the laws of his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.-Marbury v. Madison
One of the great ironies of the seminal case Marbury v. Madison is that it provided no remedy to the party, Marbury, whose vested right was deemed by the Court to be violated. Chief Justice Marshall struck down a law passed by Congress which purported to give jursidiction to the Supreme Court over actions such as Marbury's, ruling that the law was unconstitutional.
Today, the United States Circuit Court of Appeals, Sixth Circuit, dismissed the ACLU's case against the National Security Agency, which sought the enjoining of the NSA's warrantless surveillance program. The Sixth Circuit ruled that the ACLU lacked standing and thus dismissed the case. More.
The standing requirememt is, to be frank, often bent and twisted to serve the desires of the particular court deciding the question. This article states it well:
Standing doctrine confuses both lower courts and litigants, because the Court manipulates the doctrine to serve other objectives. When the Court wants to reach the merits of a case, the standing doctrine is often relaxed. Conversely, when the Court wishes to avoid deciding the merits of a case--or perhaps, when it wants to shut a whole category of cases out of court--, the requirements for standing are tightened.
Whenever I read a standing decision, I almost always see a court making a policy decision, not a legal decision. The Sixth Circuit's decision is no exception, and it was a divided court. The Republican appointees found no standing. The Democratic appointee found standing.
If this becomes the final word from the courts on this issue, has the issue been pushed fully in to the political arena and the possible remedies available there? In short, is the only remedy impeachment and removal? This seems to be the conclusion of KagroX at daily kos:
Is the program still unconstitutional? Yes, but only in theory. Because the 6th Circuit says the ACLU didn't prove it was directly injured by the violation, and therefore has no standing to bring the suit in the first place.
Sorry, everyone!Hope some nice censure fixes your Constitution for you!
Kagro rejects the notion of impeachment as making a statement for posterity, as his dismissive reference to censure makes clear. Kagro insists upon a remedy. And Kagro has chosen his best possible ground - the warrantless surveillance program of the NSA, a clear and inarguable violation of the wiretapping statutes. Indeed, it has long been my view that President Bush has committed an undisputed impeachable offense in this manner by deliberately violating a duly enacted federal law.
So I should support impeachment on this right? I do not reach that conclusion. The reason why is, like Kagro, I am demanding of a remedy when it comes to impeachment. If there is no removal, then impeachment is no remedy.
Does that mean impeachment will always be off the table for Bush? Practically speaking I think so. The political will to set of the political nuclear bomb of impeachment is not there and is not likely to be there before we travel into the heart of the 2008 elections. Let us consider the chronology of Watergate:
1972 June 17
Five burglars are arrested at 2.30am during a break-in at the Watergate
James W. McCord is the security director for the Committee for the Re-election of the President (CREEP).
June 19 A GOP security aide is among the Watergate burglars, The Washington Post reports. Former attorney general John Mitchell, head of the Nixon reelection campaign, denies any link to the operation.
August 30 Nixon claimed that White House counsel John Dean had conducted an investigation into the Watergate matter and found that no-one from the White House was involved.
September 15 The first indictments in Watergate are made against the burglars: James W. McCord, Frank Sturgis, Bernard Barker, Eugenio Martinez and Virgilio Gonzalez. Indictments are also made against E. Howard Hunt and G. Gordon Liddy.
November 11 Nixon is reelected in one of the largest landslides in American political history, taking more than 60 percent of the vote and crushing the Democratic nominee, Sen. George McGovern of South Dakota.
1973 February 7 The Senate votes (77-0) to create the Select Committee on Presidential Campaign Activities.
March 19/23 James W. McCord writes a letter to Judge John Sirica in which he claims that the defendants had pleaded guilty under duress. He says they committed perjury and that others are involved in the Watergate break-in. He claims that the burglars lied at the urging of John Dean, Counsel to the President, and John Mitchell, the Attorney-General.
These allegations of a cover-up and obstruction of justice by the highest law officers in the land blew Watergate wide open.
April 6 John Dean, the White House Counsel, begins co-operating with the Watergate prosecutors.
April 30 Nixon appears on national television and announces the dismissal of Dean and the resignations of Haldeman and Erlichman, describing them as two of his "closest advisers". The Attorney-General, Richard Kleindienst, also resigns and is replaced by Elliot Richardson.
May 17 The Senate Watergate Committee begins public hearings.
May 18 The Senate Watergate committee begins its nationally televised hearings. Attorney General-designate Elliot Richardson announces the appointment of former solicitor general Archibald Cox as the Justice Department's special prosecutor for Watergate. He is sworn in on May 25.
June 03 It is reported by the Washington Post that John Dean has told Watergate investigators that he discussed the Watergate cover-up with President Nixon at least 35 times.
June 25 Testifying before the Senate Watergate Committee, Dean claims that Nixon was involved in the cover-up of the Watergate burglary within days in June 1972. In a seven-hour opening statement, he details a program of political espionage activites conducted by the White House in recent years.
July 13 Alexander P. Butterfield, a former presidential appointments secretary, informs the Senate Committee of the White House taping system. He says that since 1971 Nixon has recorded all conversations and telephone calls in his office. A protracted legal battle begins between the White House, the Congress and the Special Prosecutor.
July 23 The Senate Committee and Archibald Cox demand that Nixon hand over a range of White House tapes and documents.
Nixon refuses to surrender any documents or tapes.
July 26 The Watergate Committee subpoenas several White House tapes.
August 9 The Senate Committee takes legal action against Nixon for failure to comply with the subpoena.
August 15: Nixon delivers a second Address to the Nation on Watergate. Nixon claimed "executive privilege" for the tapes and argued that he should not have to hand them over. Archibald Cox and the Senate Watergate committee request the Supreme Court instruct Nixon to surrender the tapes.
August 29 Judge Sirica orders Nixon to hand over 9 tapes for Sirica to review in private. This is the first of a number of court battles that Nixon is to lose.
October 12 The US Circuit Court of Appeals for the District of Columbia upheld Judge Sirica's ruling that Nixon should surrender tape recordings relevant to Watergate.
October 19 Nixon offers a compromise to the Senate Watergate Committee, proposing that the Democratic Senator from Mississippi, John Stennis, be permitted to listen to the tapes and prepare summaries for Special Prosecutor Cox.
October 20 Cox rejects the Stennis compromise. In a series of events that became known as the Saturday Night Massacre:
Nixon orders his Attorney-General, Elliot Richardson, to fire Archibald Cox. Richardson refuses and resigns in protest. Nixon orders the deputy Attorney-General, William Ruckelshaus, to fire Cox. Ruckelshaus refuses and is sacked. Robert Bork, the Solicitor-General, now acting as Attorney-General, fires Cox.
October 23 Under immense pressure, Nixon agrees to comply with the subpoena and releases some of the tapes.
November 1 Leon Jaworski is named as the new Watergate Special Prosecutor.
November 17 During a press conference, Nixon defends his actions, urges the nation to put Watergate behind it and says "I'm not a crook.
November 21 A gap of 18 and a half minutes is discovered on the tape of the conversation between Nixon and Haldeman on June 20, 1972. Electronics experts report that the gap is the result of at least 5 separate erasures. Nixon's secretary, Rose Mary Woods, denies deliberately erasing the tape.
1974 January There are now ongoing calls for Nixon to resign and the Congress begins to seriously consider impeachment.
February 6 The House of Representatives votes to authorize the House Judiciary Committee to investigate whether grounds exist for the impeachment of President Nixon.
April 16 Special Prosecutor Jaworski issues a subpoena for 64 White House tapes.
April 30 Nixon refuses to hand over the tapes, but provides more edited transcripts to the Judiciary Committee.
May 9 Impeachment hearings begin before the House Judiciary Committee.
July 24 The Supreme Court, by a unanimous vote of 8-0 (William Rehnquist abstaining) upholds the Special Prosecutor's subpoena, ordering Nixon to make the tapes available for the Watergate trials of his former subordinates. The case is known as United States v. Nixon.
July 27 The House Judiciary Committee adopts the first Article of Impeachment by a vote of 27-11, with 6 Republicans voting with the Democrats. The Article charges Nixon with obstruction of the investigation of the Watergate break-in.
July 29 The House Judiciary Committee adopts the second Article of Impeachment that charges Nixon with misuse of power and violation of his oath of office.
July 30 The House Judiciary Committee adopts the third Article of Impeachment, charging Nixon with failure to comply with the House subpoenas.
August 5 Nixon releases transcripts of three conversation he had with Haldeman six days after the Watergate break-in. The June 23 tape becomes known as The Smoking Gun because it reveals that Nixon ordered the FBI to abandon its investigation of the break-in.
Nixon releases three more tapes that prove he ordered a cover-up of the Watergate burglary on June 23rd 1972, six days after the break-in. The tapes show that he knew of the involvement of White House officials and the Campaign for the Re-election of the President, as well as revealing that Nixon ordered the FBI to abandon its investigation of the break-in.
These tapes become known as The Smoking Gun. The eleven Republicans on the Judiciary Committee who voted against impeachment say they will change their votes. It is clear that Nixon will be impeached and convicted in the Senate.
August 7 Three senior Republican congressmen meet with Nixon, advising him that his chances of avoiding impeachment by the House and removal from office by the Senate are "gloomy".August 9 In the morning, Nixon delivers a farewell address to the White House.
Around the country, calls mount for Nixon's resignation, and speculation builds about Nixon's intentions.
From the time of the formation of the Select Commitee of Presidential Election Campaign Practices, the famous Ervin Committee in February 1973, 18 months passed before Nixon resigned.
The Watergate investigation had an ongoing criminal investigation.
An appointed Special Prosecutor.
An aggressive press corps.
And critical here - a John Dean.
And the ultimate critical piece - TAPES.
In addition, the time frame for removing Nixon from office was more plausible than is the removal of Bush.
If removal from office is the remedy, if impeachment is not to be a form of censure, then impeachment proponents need explain how it can happen. What facts will shock the American People.
Is warrantless wiretapping the issue? Well, they have known about it since December 2005 and they seem less than shocked.
What has shocked the American People is the disastrous Debacle in Iraq. The Congress has the political power to act on Iraq. If they will just do it. It seems to me that impeachment proponents are not thinking clearly on the politicalnature of the battles the Democrats and progressives must fight and how they can win them.
Dems can win on Iraq. It seems irresponsible to me to fight a battle with no prospect of victory, a symbolic fight, when a real and monumental and essential fight CAN be won on Iraq.
It is what makes me less than sympathetic with impeachment proponents.
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