Marc Ash: Law or Lawlessness

We are not a nation of laws, if law cannot be enforced at the highest levels of our government. It's that simple.

Noting the Constitution assigns both the right and the obligation to Congress to intercede when the executive branch violates the law is one thing, asking Congress to actually do it, is apparently, quite another. While it is agonizingly obvious the time has more than arrived for Congress to do what the Constitution mandates, namely rein in a rogue president, such action would be extraordinary nonetheless.

Mr. Bush and his entourage have not only broken the law, they flaunt it. Moreover, this group that now controls the executive branch even assumes to take the power of law brazenly unto itself; in some cases, even relying on their allies in Congress to change laws the administration had already broken, to retroactively shield White House officials and their subordinates.

The Military Commissions Act of 2006 is a perfect example. Just two weeks prior to the 2006 midterm elections, Congress passed legislation that permitted the administration to detain, at its own discretion, anyone the executive branch - specifically, Mr. Bush as the commander in chief - deemed to be a terrorist. Once the law was signed by Mr. Bush, both Congress and the commander in chief were on record as agreeing habeas corpus was another quaint and expendable formality. That was rather convenient and timely for the White House because it was becoming increasingly apparent by that time the administration had been sanctioning, even directing, illegal detentions for at least three years before Congress obliged them by providing after-the-fact, retroactive legal cover.

Congress's decision to pass the Military Commissions Act is, on its face, difficult to understand. To better grasp the rationale that drove this patently unconstitutional legislation through both houses of Congress to the desk of the very man who had broken the laws it invalidated, it is important to consider the fundamental inconsistency between law enforcement and electioneering. Those who must be reelected must be popular. Putting people in jail, or even attempting to, can make you very unpopular. Just ask Patrick Fitzgerald. No one did more to challenge illegality at 1600 Pennsylvania Avenue than Mr. Fitzgerald and his hand-picked group of investigators. They ended up hated by everyone. But their efforts pulled back, if only for a moment, the steel curtain of secrecy behind which those who now assume the nation's highest offices had, up until that investigation, operated with absolute impunity.

Mounting a serious legal challenge to the executive branch is a daunting task for Congress under any circumstances. However, as the breadth and scope of this White House's transgressions are totally unprecedented, so too is the challenge Congress faces. Never in its history has America been confronted with an executive branch so determined to break every law designed to regulate its conduct. In the words of House Speaker Nancy Pelosi, "The American people don't know the half of it."

During the same interview, Pelosi was asked about impeachment as a remedy for illegal conduct by Messrs. Bush, Cheney and other administration officials. Pelosi replied, "It's not worth it."

If the price of inaction is the forfeiture of our constitutional democracy, then the worth of action needs to be reexamined - quickly, and in earnest.

This Congress has been saddled with an unenviable task: They are asked, scripted by the nation's founding fathers, to undertake a rather monumental stand in defense of the republic. The Constitution is clear. What will prevail, law or lawlessness?

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