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Congressional Contempt

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The House Committee on Oversight and Government Reform has voted 23–17 in favor of holding Attorney General Eric Holder in contempt of Congress. The resolution is expected to reach the full House for a vote this week. The party-line vote came after a 16-month investigation into the botched anti-gunrunning operation named Fast and Furious.

That the committee would split along partisan lines was predictable. House Republicans want to make the Democrats look bad in a presidential election year. Democrats are attempting to control the damage by ignoring the evidence of Holder’s guilt and accusing the Republicans of playing politics.

One thing this scandal reveals is the extent to which partisan politics has overwhelmed the Founders’ system of checks and balances. The way this system was supposed to work is that Congress, jealous of its powers and prerogatives, would exercise oversight and keep the other government branches honest, particularly the executive branch.

Well, it hasn’t quite worked out that way. The federal government’s exponential growth in the past century has created a largely unaccountable executive. Bloated budgets and secrecy have made meaningful oversight impossible. Congress, for its part, has become obsessed with pork-barrel spending and has demonstrated no institutional fortitude when confronted with executive usurpations. The governing class’s two factions (Republicans and Democrats) are primarily concerned with dividing the political spoils and could not care less about the law, justice, or much less the truth.

This is not to suggest the charges against Attorney General Holder are trivial. Indeed, they are very serious. There is overwhelming evidence that the nation’s chief law-enforcement officer has obstructed justice. Such open contempt for Congress’s oversight powers and the rule of law should not go unpunished.

Nevertheless, there is a strong whiff of irony in the House Oversight Committee’s vote. After all, is not Congress also guilty of contempt?

Congress has sat idly by as successive presidents have run roughshod over the Bill of Rights; and Congress has itself been complicit in the country’s descent into tyranny by passing legislation contrary to the spirit and letter of the Constitution. There is not enough space in this column to exhaustively list these offenses, so I will detail only a few examples.

The New York Times recently ran a 6,000-word investigative piece reporting on how the president sits down with his senior military and intelligence advisers and reviews a list of people they want him to authorize their agents to kill.

The Obama administration has argued that such killings are only conducted after careful consideration, and that its use of deadly force is consistent with due-process guarantees provided for in the Constitution.

That claim is absurd on its face.

There is nothing in the Constitution that permits a president to carry out non-judicial killings. In fact, the Constitution prohibits them by way of the Fifth and Fourteenth Amendments. When the president orders a “hit,” he is not only violating his oath of office, which is to faithfully execute the laws, he is also committing a crime.

Where is Congress? When the story broke, most of the outrage on Capitol Hill was directed toward the story’s use of classified information, the source of which many suspect to be the White House itself. Only a few members of Congress appeared concerned that the president, in asserting he has the authority to kill anyone he deems a threat to national security, was creating a radical new power for himself and his successors.

Congress’s silence in the face of the Obama administration’s serial abuse of power is not surprising, considering that last year it overwhelmingly passed the National Defense Authorization Act of 2012 (NDAA). This legislation contained a grossly unconstitutional provision declaring that anyone suspected of terrorism against the United States can be held in military custody indefinitely. The act was a codification of a policy begun during the Bush II administration, which claimed the authority to hold terrorist suspects indefinitely.

In 2005, the New York Times exposed an illegal program being carried on by the National Security Agency on the orders of President George W. Bush that involved the dragnet surveillance of domestic communications. The program was a direct violation of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment. Congress reacted to this gross abuse of power by legalizing it twice: first with the 2007 Protect America Act, and then with the 2008 FISA Amendments Act.

The Fourth Amendment to the U.S. Constitution explicitly prohibits invasions of privacy by government agents; it denies them the power to engage in unreasonable searches and seizures without a warrant issued on probable cause.

Congress disregarded this bedrock principle of American law when it enacted the Patriot Act in 2001. This unconstitutional piece of legislation gave federal agents sweeping investigative powers, including the authority to issue self-written search warrants called “national-security letters.” Government agents are no longer required to show probable cause and swear out an oath in front of a judge before violating a person’s privacy. In other words, the Patriot Act revokes the Fourth Amendment. As Judge Andrew Napolitano writes,

A self-written search warrant, even one called a national security letter, is the ultimate constitutional farce. What federal agents would not authorize themselves to seize whatever they wished? Why even bother with such a meaningless requirement? We might as well let the feds rummage through any office, basement, computer, or bedroom they choose. Who would trust government agents with this unfettered unreviewable power? The Framers did not. Why would government agents bother going to a judge with probable cause seeking a search warrant if they can simply write their own? Big Brother must have caught on because federal agents have written and executed self-written search warrants on over 120,000 unsuspecting Americans since October 2001.

Defenders of the Patriot Act say it is necessary to protect the nation, but that claim is belied by the fact that the vast majority of national-security letters have been issued in cases that have nothing to do with terrorism or national security.

Conclusion

Attorney General Eric Holder has, indeed, shown contempt for Congress and the law he is entrusted to enforce. His censure by the House and removal from office would be appropriate.

But what about Congress’s contempt of the Constitution? They have largely approved of the executive branch’s long train of abuses and have made a habit of enacting laws that are contrary to the spirit and letter of that supposedly revered document.

The discomforting truth is that both the Republicans and the Democrats feel no obligation to abide by the Constitution’s strictures. To those lurking in the corridors of power in Washington, it really is just a scrap of ancient parchment.

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    Tim Kelly is a columnist and policy advisor at The Future of Freedom Foundation in Fairfax, Virginia, a correspondent for Radio America’s Special Investigator, and a political cartoonist.