James Sensenbrenner asked the Justice Department a simple question:

“Some have questioned whether President Carter’s signature on FISA in 1978, together with his signing statement, was an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless surveillance.
a. Does Congress have the authority to renounce any inherent presidential
b. Is there any case law that supports or proscribes Congress’ ability to renounce inherent presidential authority?

DOJ responded:

The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President’s constitutional power…

Just as one President may not, through signing legislation, eliminate the Executive Branch’s inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President’s ability to perform his constitutional duty.“

Glenn Greenwald breaks it down for us.

Can that be any clearer for you – Congressmen, Senators,journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to “protect the nation.” Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.

In Federalist no.47, James Madison said:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

Federalist no.47 seeks to reassure skeptics that the Constitution, as written (and not yet ratified), is sufficient to prevent the accumulation of too much power into any one branch of government. How Madison must be rolling over in his grave to see the arguments that the Department of Justice is making today.

It’s ironic that Madison was initially (pre-ratification) most concerned that the legislative branch of government would become a tyrant and disempower the executive. But post-ratification, Madison quickly changed his mind and determined that Congress needed expanded powers to combat the power of the Executive in matters of foreign policy.

There can be no question what Madison would think of the President’s plan to ‘rid our world of tyranny’. He would declare Bush to be the first tyrant on the list.

“Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare.”

We have a tyrant in our midst. The Founding Fathers did their best to construct a system of government that could root out tyrants. But it all depends on the willingness of Congress to exert their powers of impeachment. It depends on the willingness of the courts to defend the prerogatives of the legislative branch. We are in a Constitutional Crisis. Watching the politicians on Capitol Hill and the pundits on television, you might not know it. But our liberty is at stake. The war in Iraq is now an unsightly sideshow. The real war is here at home. It is the People versus our government.

Anyone that has these priorities mixed up is not a true patriot, and it is laughable when they question the patriotism of people that understand the stakes.

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