Bill of Rights Defense Campaign

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Opinion Editorial:

Executive Power

by Hope Marston, Bill of Rights Defense Committee

The executive branch has overreached its Constitutional powers. Those powers must now be severely curtailed if we are to continue to have a democratic form of government.

The executive branch cannot oversee itself, because a separate branch, the judicial, is Constitutionally empowered to provide oversight. The executive branch cannot make law to govern itself without violating people’s right to have direct input into the Congress, the law-making arm of government.

The American people have lived for four years in the shadow of an executive branch, which has appropriated the power to:

  • Name American citizens “enemy combatants” and deny them Constitutional rights like speedy trial, representation by counsel and access to information provided by witnesses against them, as guaranteed by the Sixth amendment of the Bill of Rights.
  • Create a no-man’s land of injustice at Guantánamo Bay.
  • Lock up, abuse and deport 1100+ Muslim men with no proven connection to terrorism
  • Create a policy of torture, including acceptance of waterboarding, crucifixion stress positions, forced nudity and sensory deprivation.
  • Authorize secret prisons and extraordinary rendition, whereby persons who have not been tried or convicted of any wrongdoing can be subjected to torture.
  • Conduct searches, using national security letters to obtain thousands, perhaps millions of records -- keeping them and distributing them even when the person is found to have no connection to crime or terrorism. All this with no judicial oversight.
  • Rewrite the 1974 Privacy Act, which states that any information entered into the National Crime Information Center is accurate, timely, and relevant. Inaccurate information is now allowed, under a March 24, 2003 order from John Ashcroft.
  • Wiretap attorneys and their clients in federal prisons, violating the 6th amendment.
  • Authorize FBI fishing expeditions into political meetings and religious meetings regardless of whether the meeting has any connection to crime or terrorism.
  • Override court decisions granting bond to immigrants seeking asylum, by requiring most immigrants to be jailed indefinitely without bond when "national security" risks exist – ignoring the PATRIOT Act (Section 412) which provides for judicial review and only allows a person to be held for 7 days before he or she must be charged.
  • Use the National Security Agency to wiretap electronic communications of U.S. residents without FISA court oversight – specifically violating the 1978 Foreign Intelligence Surveillance Act.
  • Placing strict limits on release of Freedom of Information Act documents to the
    § Hide Presidential records from the public, using Executive Order 13233, just as George H.W. Bush’s were scheduled to be released in 2001.
  • Use “appropriate tools required to intercept and obstruct terrorism” to spy on and infiltrate domestic political groups, rather than exclusively using those tools to intercept and obstruct terrorism.
  • Resist oversight from Congress and the courts regarding use of the PATRIOT Act.

One branch of government cannot and must not single-handedly perform all duties of government. The Executive, Congressional and Judicial branches must work together to provide reasoned leadership in forging effective shields against external threats.

Restoring checks and balances to our government does not threaten legitimate law enforcement activity. But our democratic form of government is threatened by an executive branch willing to break the law to assert its own power.

The U.S. government was created of the people, for the people, and by the people. Concentrating so much power in the executive branch disenfranchises the American people by silencing our voice in our government. The right of the people to speak to our government through Congressional representation must be immediately restored.

Congress must begin by taking a second look at the PATRIOT Act reauthorization to see where it can be repaired, and by inserting more and thorough judicial oversight. It can then start down the list and repair other executive excesses by passing laws to govern, as is its mandate. Congress must not allow the President’s use of the National Security Agency to use a vacuum-cleaner approach to wiretapping to continue. There is a legal process for obtaining NSA information, and the President must not be allowed to exceed his Constitutional powers for any reason. Our democracy depends on a balance of power.