Feingold: Restoring the Rule Of Law

FOR IMMEDIATE RELEASE September 10, 2008 3:50 PM

CONTACT: Senator Russ Feingold Zach Lowe (202) 224-8657

WASHINGTON - September 10 - U.S. Senator Russ Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee, will hold a hearing on Tuesday, September 16, on "Restoring the Rule of Law." During the hearing, the Subcommittee will hear testimony from legal and historical experts on what steps the next president and the next Congress must take to repair the damage done by the Bush Administration to the rule of law.

The hearing is an effort to provide the next president with a full range of recommendations for reestablishing appropriate checks and balances in a variety of areas, including warrantless wiretapping, interrogation standards, detention policy, abuse of executive privilege, excessive government secrecy, violations of privacy and misleading Congress.

In addition to the testimony of the witnesses at the hearing, Senator Feingold has solicited suggestions from a host of law professors, historians, advocates and other experts to offer a blueprint to the next president and Congress for what must be done, starting in January 2009, to reverse the previous administration's abuses. The submitted testimony will be available at http://feingold.senate.gov prior to the hearing.

Who: Senator Russ Feingold, Chairman, Constitution Subcommittee of the Senate Judiciary Committee

What: Hearing on "Restoring the Rule of Law"

When: Tuesday, September 16^th - 10:15 a.m. ET

Where: Hart Senate Office Building - Room 216

Witnesses:

Walter Dellinger

Douglas B. Maggs Professor Emeritus of Law, Duke University School of Law

Solicitor General of the United States 1996-1997

Mickey Edwards

Board of Directors, The Constitution Project

Lecturer, Woodrow Wilson School of Public Policy, Princeton University

Former Member of Congress (R-OK), 1977-1993

Harold Koh

Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law

Yale Law School

Elisa Massimino

Chief Executive Officer and Executive Director

Human Rights First

John D. Podesta

President and CEO, Center for American Progress Action Fund

Chief of Staff to President William J. Clinton, 1998-2001

Frederick A.O Schwarz Jr.

Senior Counsel

Brennan Center for Justice at New York University School of Law

Suzanne E. Spaulding

Principal

Bingham Consulting Group

Charles J. Cooper

Partner, Cooper & Kirk, PLLC

Patrick F. Philbin Partner

Kirkland & Ellis LLP

Kyndra Rotunda

Visiting Assistant Professor of Law

Chapman University School of Law

Robert Turner

Professor, General Faculty Associate Director, Center for National Security Law

University of Virginia School of Law

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Bushites Are Playing By Their Own Rules, STILL!.

Congress and the Judiciary are all that stands between us and a uniquely American fascism.

Seems, this is just the kind of situation our founders had in mind when they created a government of three, equal co-branches.

They had had a gut full of King George.

Well, so have we!

We saw it with Yaser Hamdi and then Jose Padilla. We saw it with the military tribunals for Guantanamo Bay. And we are seeing it again with the National Security Agency's domestic surveillance program.

Over the past few years, whenever the White House has seen or sensed trouble looming for its most controversial and tenuous positions in the legal war on terrorism, it has suddenly changed course, altered the playing field, or unilaterally declared itself beyond the purview of the prevailing rule of law. No legal defeats for this administration, no explicit concession of limits on its authority, just a series of tactical or strategic retreats that allow it to show to the world a visage of supreme executive branch power-- while at the same time allowing it at some future date to advance the same losing arguments.

And all of it is done in secret, under the cloak of national security, so as to hide not just true secrets but embarrassing facts and legal opinions.

Why this three-card-monte tactic? Because once the Supreme Court formally limits White House power on domestic surveillance, or once the Justices or Congress declare the President's "enemy combatant" designations unconstitutional as they apply to U.S. citizens (like Padilla and Hamdi), the executive branch will have a much harder time regaining those powers at a future date than they would without those explicit setbacks. I think of it this way: when the White House sees that it is losing the match, it simply walks off the field and starts a new game, somewhere else, with different rules.

With Hamdi, the feds suddenly released him from custody as an "enemy combatant" when the Supreme Court ruled in his favor. After years of calling him a terror suspect too dangerous to even talk with his own attorneys, Hamdi was suddenly free and back home. With Padilla, the feds voluntarily (and almost overnight) moved him out of "enemy combatant" status when it appeared clear that the Justices would force them to do so. Padilla now stands trial in civilian court on relatively minor charges in Florida. When the Supreme Court last year declared illegal the government's plans to try the Guantanamo Bay detainees, the White House simply bullied Congress into approving a new set of plans that still contain significant legal deficiencies.

And now this: the government now is asking the federal courts to throw out a challenge to the NSA spy program because, the feds say, the program now is being supervised by the Foreign Surveillance Intelligence Court and thus is no longer the program that the American Civil Liberties Union had challenged. Moreover, the White House now argues, it didn't voluntarily change the nature of the spy program by asking the FISA court to get involved and evaluate surveillance requests, the court unilaterally did so. This is legally significant because of a legal doctrine called "voluntary cessation" which allows plaintiffs to continue their court cases against the government if the government simply (and perhaps temporarily) halts the challenged action as a result of the lawsuit.

Of course, we don't really know how the whole change in the program came about because, as Attorney General Alberto Gonzales told legislators last week, he wasn't sure he could share those details with Congress (never mind the ACLU). Same as it ever was. Knowing that the program was constitutionally suspect, and knowing that a Democratic Congress was closing in, the feds ducked and now are covering. The courts should keep the NSA challenge alive and determine the constitionality of the program, then and now. We deserve more answers than we have so far received.

By Andrew Cohen January 26, 2007; 10:30 AM ET


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.