Quote of the Day: Censuring Bush

OK, it's from Friday, but I'm just reading it this morning. Andy McCarthy has a great post at The Corner, which I'm repeating in its entirety because it provides some historical context to Russ Feingold's censure efforts:

Who said the following? “[N]othing” in federal statutory law

shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything … be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.

Was it “King George” Bush (ludicrously referred to as a “monarch” by Sen. Russ Feingold today)? Vice President Cheney? Or maybe Karl Rove? Fox News? Rush Limbaugh? National Review?

Well, no. It was none of those. Instead, the foregoing forceful assertion of robust executive power to do whatever in the President’s judgment was necessary to protect the Nation against foreign threats, including to conduct electronic surveillance inside the United States, was made by … the United States Congress.

It is from Section 2511(3) of Title 18, United States Code – a provision enacted in 1968 in conjunction with the first federal wiretapping law. Its purpose was to make plain what had been universally understood since constitutional governance began in 1789: it would be unconstitutional for Congress to enact a law that purported to seize control of, or reduce, the constitutional authority of the President to collect intelligence in order to protect the American people from hostile foreigners.

The Congress, with the complicity of President Jimmy Carter, blatantly violated its own statute when it enacted FISA in 1978 and undertook to seize what a decade before it said could not be seized.

So embarrassingly obvious was the transgression that Congress felt compelled to bleach it out by repealing Section 2511(3) and pretending the whole thing never happened. (Unlike the President, when Congress violates the law, it can make that law disappear.)

It was an imperious maneuver by the 1978 Congress, ignoring checks and balances and declaring that Congress, not the Constitution, was our ultimate ruler. It was downright oligarchical.

So should we censure Congress?

Maybe Sen. Feingold, staunch libertarian that he purports to be, should read the Federalist Papers. He might start with No. 72, in which Hamilton warned, for the sake of liberty, that Americans remain on guard against “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments[.]”

Read the whole thing. Oh wait, you just did.