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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, April 01, 2006

Orrin Hatch: Laws become unconstitutional once Bush violates them

Digby has a post detailing how Orrin Hatch opined at Friday's censure hearing that censure was unconstitutional, even though he said precisely the opposite during the Clinton impeachment hearings.

In that same point, Digby cites a quote from Hatch where he claims -- as he has done several times since the NSA scandal began -- that FISA is clearly unconstitutional because Congress has no right to limit the President's eavesdropping activities:

"It would be unconstitutional for the Congress to say, 'You have to go through the FISA court.' We could pass a law that says, 'We want you to go through the FISA court,' and I think the president would probably try to live with that. The problem is, you cannot do what they've been doing to protect us through the current FISA statute."

That FISA is an unconstitutional encroachment on the President's authority is an interesting opinion for Hatch to voice. When FISA was enacted in 1978, the Senate approved that legislation by a vote of 95-1. Although the roll call vote appears not to be online, someone working with me on my book telephoned Hatch's office this week to confirm that he voted for FISA. He did. (He also voted to amend FISA and modify the criminal restrictions imposed by Congress on the President's eavesdropping activities in 2001, when the Senate voted to enact the PATRIOT Act).

Hatch thus voted to enact criminal restrictions on the President's eavesdropping activities. Once it turned out that the President was breaking that law, Hatch suddenly claimed that the very law he voted to enact and repeatedly amend was unconstitutional.

This seems to be an accurate summary of the evolution of Sen. Hatch's views of constitutional law:

(1) The Congress has the right to restrict the President's eavesdropping activities, and to make certain eavesdropping activities a criminal offense punishable by up to five years in prison.

(2) Therefore, Hatch votes several times for FISA.

(3) Every President since then complies with the law -- including President Reagan and Bush 41 during the height of the Cold War - and no Administration or member of Congress challenge its constitutionality.

(4) George Bush gets caught violating FISA by engaging in the precise eavesdropping which FISA criminalizes.

(5) Hatch says that the Leader did nothing wrong because the law which the Leader violated -- the same one Hatch voted to enact and to amend repeatedly -- is unconstitutional.

Hatch has been in the Congress for more than 30 years. He was in Congress when FISA was enacted 28 years ago. He never once claimed that it was unconstitutional in any way -- until it was revealed that George Bush has been deliberately violating the law. Then he suddenly said that Congress had no right to pass that law, so after 28 years, the whole thing is all just totally invalid.

Congress may have the right to request (respectfully and politely) that the Commander-in-Chief go to the FISA court before eavesdropping on American citizens, but Congress has no right to require that the Commander do so (even though the law which Hatch repeatedly voted for purports to do just that).

I realize that intellectual honesty isn't exactly in great abundance among career politicians like Hatch, and that naked, amoral inconsistencies of this sort are run-of-the-mill for the Beltway sophisticates. But isn't this a bit too transparent and rancid even for that circle?

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