More to come on this — we’re about to leave for the studio — but I’m looking into former Justice Department lawyer John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. (If Yoo’s name is familiar it’s because he’s the author of the famous torture memo (pdf).)
Hat tips to Pecos and Potter for ideas about executive privilege and power.
Constitutional? [Whitehouse.gov]
As I wrote above, John Yoo is most well known for his work at the Justice Department and, specifically, the torture memo. But his new book is much more wide-ranging. Its subtitle is “The Constitution and Foreign Affairs after 9/11” (emphasis added) but he dwells at length on constitutional history, not just contemporary realities. It’s basically a manifesto on the limits — or limitlessness — of presidential power, with a focus on war and international treaties.
Presidents needn’t get congressional authorization to go to war, Yoo argues; Congress just controls the purse strings, not the marching orders. Yoo’s critics argue that he sees the President as basically a king in an oval-shaped office. Yoo counters that no U.S. military action of the last 50 years — think Korea, Vietnam, Grenada, Panama, the Persian Gulf War, Kosovo, Afghanistan, and Iraq — was the result of an actual declaration of war. (Part of this hinges on what a “declaration” or war actually is. Yoo sees it as “a recognition of the legal status of hostile acts, rather than a necessary authorization for hostilities.” His critics point out that, official declaration or not, presidents have, over and over, turned to Congress for some kind of authorization — as political cover? democratic pretense? shoring up support for the future? — before comitting American troops.) As for international treaties, they’re all well and good… until a president decides they need to be reinterpreted. Or simply terminated. Unilaterally.
These are provocative ideas — incendiary, even. They would only be provocative ideas were they simply the writings of a cloistered legal scholar. But they’re not. Yoo was, after all, a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice, a man who, until recently, was interpreting, defining, and defending policy at the highest levels of American government. His new book provides the historical and academic underpinning for much of that policy — from the quaintness of the Geneva Convention to the case for war itself.
- Extra-Credit Reading
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David Cole’s What Bush Wants to Hear from the New York Review of Books
Wikipedia on the War Powers Resolution of 1973
This is not directly on point, but I think that you might think about this angle a bit. Yoo’s thinking seems to be a radical departure from traditional views. Check out ogged’s post on the importance of post-modern theory to this.
So tell me guys. How do two topics which, as far as I can tell, have never before seen the light of day, are not the product of pressing news, and which have no messages attached to them, save my curious query, vault to the fore ahead of those languishing for weeks on the back burner? Don’t worry, I’ll listen. I just want to know.
That said, is Yoo going to justify the memo, or do an Alito? (Oh heck, I don’t know what I personally feel about torture; I was just writing a legal memo for someone else.) For God’s sake, somebody ask him if HE thinks it’s MORALLY justifiable, and don’t let him up until he gives you a straight answer.
So, Yoo is a lawyer who doesn’t believe in the rule of law. A little self-loathing, maybe?
I read Cole’s piece and he puts things down quite squarely. I don’t see how there’s an argument to support Yoo’s (and the Bush administration’s) conclusions. What kind of nation have we become that we are even debating the use of torture? And the value of igniring treaties? We have been a ‘super power’ since World War II. We experienced one moment of vulnerability and now we’ve shown how small and frightened we really are. Perhaps, we, as a nation have never really recovered from the sense of vulnerability to the crown in the 1700′s and the trauma of Pearl Harbor. A giant mass of post-traumatic disorder. We have lost all grounding in sensibility. I have yet to see a real leader emerge from this black hole in our national psyche.
I chuckled at David Cole’s line about the irony of Bush saying he supports an ‘originalist’ interpretation of the Constitution, but then supporting Yoo’s interpretation. It would only be an irony if Bush were intellectual enough to a) have read and tried to understand the constitution himself, & b) know what it meant to be an ‘originalist”. Its not ironic, its idiotic.
Speaking of the Gulf of Tonkin, a formerly secret history from the NSA, of the (mis-)use of signals intercepts after Tonkin, was just declassified yesterday:
http://www.nytimes.com/2005/12/02/politics/02tonkin.html
I’ll bet if LBJ were alive he’d say “Members of Congress saw the same intelligence we did.” Yes, sir. 10% of the intelligence you saw was indeed seen by Congress.
Today’s front page New York Times article about this issue essentially: the expansion of presidential power. We are talking about a war, this “war on terror”, with no end.
Bush Let’s U.S. Spy on Callers Without Courts
From the article:
“Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States – including American citizens, permanent legal residents, tourists and other foreigners – is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.”
So “classified legal opinions” ? an expanding chain of people under surveillance? And to boot, it is not clear how much “congressional leaders” were told about the presidential order and eavesdropping program ( assuming others, non-leaders, were not told or told much).
Again from the article:
“……Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA Patriot Act, which is up for renewal…….”
“……President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said……”
The article goes one to say, quote:
“Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.
The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use “electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.”
Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”
The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that “the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.”
Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic “wall” limiting cooperation between prosecutors and intelligence officers, cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”
But the same court suggested that national security interests should not be grounds “to jettison the Fourth Amendment requirements” protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, “is a very difficult one to administer.” end of quote
Here is the link to an excellent post by Glenn Greenwald’s blogspot, a first amendment litigator living in NYC and Rio de Janeiro:
Bush’s Unchecked Executive Power v. the Founding principles of the U.S.
Greenwald cites and quotes Federalist nos. 48, 52, 73, 70, 69 and Anton Scalia’s dissent in Hamdi v. Rumsfeld
Here, in an update, Greenwalds takes the New York Times to task for holding onto this story of what many strongly believe is illegal activity for a whole year at the administraton’s request.
How about Harvey Silverglate’s on our activism in the executive branch and on the erosion of the fourth amendment?
The New York Times Editorial today: This Call May Be Monitored”
The revelation that the Executive branch has been spying on us without bothering with even the cursory requirements of the FISA warrant process (you can get the warrant after you’ve been snooping for a bit) is certainly relevant.
It may not be directly relevant to this particular show, but what I’d really like to know is why the New York Times sat on the story for an entire year. Were they afraid of the president? What?
President Bush, April 20, 2004:
“Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.â€?
Just a few thoughts…
First, most of our more recent presidents have been governors before they were president. The most recent exception is Bush I. Thus, Americans tend to elect candidates who have proven that they can actually run a government; instead of someone who has proven that they can cloak anything that they want to do behind political speak (ie senators). Our presidents are used to having power and the ability to use it, and they probably like ways to excercise more power.
Second, even though I think that presidents do occassionaly exercise too much power, I am glad that the language in the Constitution concerning presidential duties is not completely concrete. There are times when the intrepretation of presidential powers requires flexibility (ie 9/11). Also, keep in my mind that many ancient western philosophers felt that a true democracy was weak because it took a long time for the masses to act collectively. While they saw problems with dictatorship, they did assert that one person with a lot of power was advantageous at times since he/she could decide and act rapidly (unless they were indecisive…). I am not promoting dictators or having a lot of power entrusted to one or a few people, but it is important to think of all sides of the issue.
I suggest you try to interview a provocative prognasticator, such as Gore Vidal or an outspoken conservative with libertarian tendencies, to describe how close to a tyranny the United States is currently and to indicate what else Bush-Cheney might be doing now and might try to do in the future to tighten their executive vice-grip.
It will be interesting to see what the public reaction will be to the Bush administrations response of going after the New York Times and the whistle blowers. Will the public allow itself to be led in the direction that “they” were doing it for “your” own good. “We” only spy on the “bad guys”.
I think at this point bipartisan congressional defence of civil liberties and judicial defence of civil liberties will be critical. The news media also needs to come out of hiding and stand up and be counted.
The public needs to be reminded that the Bush administration was allowed to spy domestically, they just had to have special judicial oversight through the FISA court. They could even get warrants retroactively if needed. The question is why did the Bush administration feel it needed circumvent the FISA court?
The public also needs to be reminded that “The War on Terror” is a war, like the War on Drugs, the War on Hunger, the War on Poverty, is a war without end. It isn’t a war with a definable opposition. The real threat of terrorism is that we will willingly give up our freedom and democracy for temporary feelings of safety. All authoritarian regimes justify their oppression in the name of national security.
I think a provocateur on this subject would allow many to dismiss what is happening. You do not have to have far right or far left views to be alarmed.
“The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures… The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one.”
Adolf Hitler, March 23rd, 1933
Here’s an abuse of power: Katrina hit, and as a response Bush repealed Davis Bacon and waived environmental restrictions for oil companies, both within the week I believe. Thanks! Oil companies had record profits last year. I see this as a blatant abuse of presidential power to capitalize on a disaster to experiment with supply side economics.
McCain to Bush:’Don’t Try it Pal’
Excerpt below:
When he signed the legislation [defense appropriations w McCain's amendment on torture- Potter], Bush issued a signing statement saying he planned to construe the McCain amendment’s absolute prohibition on cruel, inhumane and degrading treatment “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective … of protecting the American people from further terrorist attacks.”
This may seem like so much legalistic gobbledygook, but it’s more sinister than that. It refers to the administration’s astonishing claim that whenever the president asserts that he’s acting in the interests of national security, he’s constitutionally permitted to violate any federal laws he finds inconvenient. Translated, Bush’s statement says, “I’ll sign a law prohibiting cruel, inhumane and degrading treatment, but because I’m president, I can ignore it.” As blogger and Georgetown University law professor Marty Lederman notes, Bush’s signing statement was “the commander-in-chief version of ‘I had my fingers crossed.’ “
It is indeed strange when one reads Orwell’s 1984 or Kafka’s ‘The Castle’ and finds one exploring a familiar world — the one we live in. Perhaps it is not that truth is stranger than fiction, but that fiction is the inspiration of those who are recreating the world in the image of their nightmares and dreams.
Al Gore’s comments prepared for a speech today include a concise warning on the expansion of presidential power: “Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.”
The Gore speech was magnificent- brought us to tears. You can catch the whole thing on CSPAN video. Do try to see the whole thing as delivered, not just the excerpts. Gore is inspiring- he breathes fire into this and makes you want to get off your duff and do something….anything.
I am probably going to see the whole thing again ( we saw it in real time) because there is a lot in it to absorb. It’s more than a speech,it’s a lecture and it contains in it reminders of what this country is all about, how it is supposed to work and how and where it has gone off track and how serious that i for all of us. He calls it a constitutional crisis. Also, it’s lawyerly in making a case. Not only does he care deeply, but I am sure he is spurred on by the belief that he would have been the president and is now playing the part of a shadow to the president…. out of responsibility,
http://www.c-span.org/
You can also get the text at moveon.org
From AP:
The White House accused former Vice President Al Gore of hypocrisy Tuesday for his assertion that President Bush broke the law by eavesdropping on Americans without court approval.
“If Al Gore is going to be the voice of the Democrats on national security matters, we welcome it,” White House press secretary Scott McClellan said in a swipe at the Democrat, who lost the 2000 election to Bush only after the Supreme Court intervened.
Gore called the program, authorized by President Bush, “a threat to the very structure of our government” and charged that the administration acted without congressional authority and made a “direct assault” on a federal court set up to authorize requests to eavesdrop on Americans.
McClellan said the Clinton-Gore administration had engaged in warrantless physical searches, and he cited an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. He said Clinton’s deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.
“I think his hypocrisy knows no bounds,” McClellan said of Gore.
Gore Statement in response:
The Administration’s response to my speech illustrates perfectly the need for a special counsel to review the legality of the NSA wiretapping program.
The Attorney General is making a political defense of the President without even addressing the substantive legal questions that have so troubled millions of Americans in both political parties.
There are two problems with the Attorney General’s effort to focus attention on the past instead of the present Administration’s behavior. First, as others have thoroughly documented, his charges are factually wrong. Both before and after the Foreign Intelligence Surveillance Act was amended in 1995, the Clinton/Gore Administration complied fully and completely with the terms of the law.
Second, the Attorney General’s attempt to cite a previous administration’s activity as precedent for theirs – even though factually wrong – ironically demonstrates another reason why we must be so vigilant about their brazen disregard for the law. If unchecked, their behavior would serve as a precedent to encourage future presidents to claim these same powers, which many legal experts in both parties believe are clearly illegal.
The issue, simply put, is that for more than four years, the executive branch has been wiretapping many thousands of American citizens without warrants in direct contradiction of American law. It is clearly wrong and disrespectful to the American people to allow a close political associate of the president to be in charge of reviewing serious charges against him.
The country needs a full and independent investigation into the facts and legality of the present Administration’s program.
Al Gore IS a hypocrite, but we are in dire straits, and the bi- and /or non- partisan coalition he’s part of needs to work together to sink the police state. They’re all hypocrites– even Saint Jimmy Carter…..”The Crimes of Jimmy Carter; Democrats and Other False Friends: http://counterpunch.org/damato01182006.html
ALYB– elaborate on what you mean by Al Gore’s hypocracy. Don’t make an accusal-dropping and fly away. Lay out your case lest you sound just like Scott McClellan.
“Potter”: I wouldn’t know where to begin, and this isn’t my blog, and you oughta do your own research instead of just believing whatever you already believe; but here is a link to start with: http://www.newsmax.com/archives/ic/2006/1/12/113510.shtml?s=et.
P.S. to “Potter”: I’ve seconded the suggestion to have Al Bore as a whole-show guest, here: http://www.radioopensource.org/suggest-a-show-january-2006/#comment-4366
ALYB -Al Gore in his statement above addresses the accusation in your newsmax story on more than one level. If you want we can go into the details. Somehow the NYTimes becomes involved an enabler in this accusation, whether true or not.
I have been listening to ( and reading) Gore’s speeches for the last several years now and this Al Gore is not that Al Gore to which you refer. He was indeed a bore and somewhat ineffective as a campaigner. This is the problem. Voters make judgments based on this ( he’s a bore!) So now he is fired up ( has been for awhile ) but some tag him and drag him with the past. But I’d even take that old bore, who had his head screwed on straight, over what we have now in the driver’s seat. I still don’t understand this business of being hard and harsh on people who are more on your side than not.
“Potter”: Gore is not more on my side than not.All of this chatter is predicated on the assumption that we need a state, a government. The state creates all of these problems to justify its existence.
Excess executive power is a big issue, but so are the appointing, er, ah, I mean voting machines: “Fooled Again: How the Right Stole the 2004 Election and Why They’ll Steal the Next One Too”–a new book by Mark Crispin Miller (http://www.chris-floyd.com/index.php?option=com_content&task=view&id=421&Itemid=1 & http://www.lewrockwell.com/roberts/roberts140.html)
ALYB- Thanks for straightening me out!
Speaking of presidential power, here is a little know incident from the past:
“Later in a private meeting with Lyndon Johnson, Pearson faced a very angry president. He grabbed Pearson by the lapels and shook him up. Johnson said: “You pissed on my rug.” Johnson legitimately felt that Pearson was trading on his Nobel Peace Prize to involve himself in a war that Canada played no part in. The incident was a low point in Canadian-American relations. ”
http://www.cbc.ca/news/viewpoint/vp_zolf/20041018.html
Seems like LBJ watched one too many John Wayne movie, or perhaps one too many Lassie out-take.
vote for Shrillary, vote for Bush’s wars: http://www.antiwar.com/justin/?articleid=8428
David Cole’s ” What Bush Wants to Hear” article recommended above for extra-credit is very worthwhile for it’s persuasive argument on the specifics about what the Constitution says and what the real intent was as opposed to the self-serving interpretations by John Yoo in the Justice Department for Bush.
I have a neocon friend who in speaking with me on a completely
different topic (business development) said, “Take the gray area.”
At first I took it only in the context in which we were speaking.
But it has stuck with me and I find myself confronting this almost daily.
Perhaps my friend slipped and let me in on a secret code or mantra for the current neocon cabal. After all, what good is a president if he can’t
“take the gray area” when it comes to:
1) Disaster relief
2) Poverty
3) Medicare
4) Corporations
5) War Powers
6) Civil Rights
7) Privacy
Court Appointments
9) Personal Liberty
10) Foriegn Affairs/Treaties
11) The list goes on…
I think we find ourselves squarely at a crossroads, do we allow those
in power to “take the gray area” or, as Article X in the constitution states,
do we wrest from them “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”
It seems to me that the abuses of executive power are found in the gray areas.
Conversely, great leaders seem to have a grasp of when to let gray matters
lie or moreover to defend them on behalf of the people. Finally, perhaps, it
is not accidental that we find ourselves here – that by stacking both legislatures,
the executive and finally the judiciary with neocons, we’ve sealed our own downfall.
To what extent did Martin Luther King Jr. follow the model of labor unions? An outsider’s power. An oppositional power. A objective seeking power. Is it time for a fouth branch (if you count the media, a fifth estate). Did Ralph Nader take the wrong approach by running for president in a two-party (as opposed to a run-off) system?
From Wikipedia: The term Fourth Estate has less frequently referred to the proletariat in opposition to the three recognized estates of the French Ancien Régime.
Here’s a good article on the historical arguments for/against presidential
absolutism: http://www.common-place.org/publick/200601.shtml
The Al Gore I heard in the campaign of 2000 sounded much like George Bush. I remember thinking that it was six of one, half dozen of the other. The Al Gore I heard later, when he was no longer a Presidential candidate was someone I would have voted for.
Speaking of Presidential power; George Bush hasn’t vetoed any legislation by Congress. All he has threatened to veto was the bill containing the anti-torture language.
I have read Yoo’s book and it is very authoritative but you should research the sources of many of his arguments and sources of materials before interviewing him as he is not the originator of this idea. As he describes it, it has a long a complete history. President Lincoln’s Emancipation Proclamation was not legal at the time, nor ever could be, but he did it and it was morally correct.
In International Affairs and war, the US Executive was designed to have, and has yielded almost unlimited powers.
The facts support your contention but is this really the intention of our form of government? Considered argument is thrown out the window at the first sign of a crisis? Lincoln’s suspension of Habeus Corpus was ruled unconstitutional at the time, during the war and after. Lincoln simply chose to ignore the congress and the courts. Could he have prosecuted the war without taking so totalitarian a stance? We’ll never know but it does seem like a possibility. There was a geat deal of pressure then to respond to the confederacy. This is often offered as the supreme rationalization in similarity with Saddam Husseen and the invasion of Iraq. But how seriously were other options explored? Again there’s this “gray area” where expediency and decisiveness are preferred over discretion and thoughtfulness. Perhaps this is simply a human trait – that we can’t handle unresolved dilemmas over long – and in the end offer one faint justification after another as we sell our best conceived notions down the river.
Elphaba, don’t forget that the Al Gore that you heard later was also colored by the George Bush that you knew more about.
I never felt that the Al Gore of campaign 2000, however ineffective a campaign he ran, was in any way equal to what I was seeing ahead of us with George Bush. Voters have to take care, focus more deeply, and learn how to look beyond the campaigner to the man. There was plenty of evidence to consider. Plenty.
The big picture is that the US is undergoing a process similar to that the Roman Empire passed through: changing from a republic to an empire. What many forget is that Empires have Emperors. Many Americans seem more interested in being governed by an Emperor (father figure) than by elected representatives — but they forget that Emperors demand obedience. Unfortunately, the type of people who want to be emperors demand the adulation of the crowd, and take vengeance on the public when it fails to deliver it.
I have a book, here on my desk by Nial Ferguson entitled “Colossus” that claims that the US has been, a de-facto, Empire since the end of WII ~ 50 years. The only reason that anyone / we are noticing it is the event of the fall of the USSR – really the last vestigages of the Russian Empire.
The terminology of the Cold War just masked the battle between the 2 empires, that would have been seen like the battles between the British and Spanish or French in the centuries prior.
The battle of ideas between those that last 2 existing empires, Marxist Socialism and Free Market Democracy, has already been decided. The only question left is who benefits from it the most – the US or the rest of the world. For this, I submit an article from the Financial Times, as left of center source that is no reflexive supporter of things US:
The American century shows no sign of ending
The rise and fall of great powers makes exciting history – all the more exciting if, as in the case of the Soviet Union, we can watch the spectacle unfold before our eyes. It is hardly surprising, therefore, that much of the discussion of the role of the US in the world is warped by the natural human desire for drama. The US is a declining power headed for collapse, says one side. No, says the other, America is the greatest empire since Rome at its peak.
The truth is less dramatic but nonetheless fascinating: America’s share of global economic power, and its potential share of global military power, have been roughly the same for a century and may remain so for another century or more.
http://news.ft.com/cms/s/e6e084de-9f1d-11da-ba48-0000779e2340.html
And in regards to Plaintexts message about “gray areas”
1) Before invoking the X Amendment to the US Constitution it seems that, if I can infer your point of view from your comments, you should be cautious when you invoke it because it cuts both ways. If you want to use it to limit the Fed Executive’s power it will also be used to limit the Fed Legislative’s power. And in doing so will eliminate the power of the Congress to regulate in areas that I think that you believe that they should be able to like, Civil Rights, Environmental laws, Gun Control etc. If one is a “strong Xth Amendment supporter� then one cannot also be a simultaneous “strong Commerce Clause supporter� because that is the clause that many previous SCOTUSs have used to legitimate the legislation that I named above.
2) Some of the areas that you listed in your comments don’t seem to be as grey and you think but maybe you wish. Examples: War Powers – the War Powers Act passed by Congress has never been tested because in has never been invoked. The Congress knows that if / when they do invoke it they will lose in the SCOTUS and they will thus set a precedent for the limitation of Legislative powers in relation to the Executive. The only use it has is as façade of Legislative power and to try and check the Executive with delays with threats of a Court Case. The only real Constitutional power the Legislative has is in the “power of the purseâ€? – an effective but blunt and politically risky tool. Another is Court Appointments, no gray area there. If you win election for the Executive you appoint and if your opposition has the political horse power to not confirm in the Legislative then you are checked – this was ready apparent in the latest SCOTUS appointments as well as the latest batch of contentious Appellate Court appointments (Janice Rogers Brown was one) that were confirmed with the help of the “Senate Gang of 14â€?. Another you mentioned was privacy and I am assuming that you are inferring the recent flap over so called “Domestic Wiretappingâ€? (half correct actually – one end doemstic one not). There is NO court decision (even during times with more “liberal Executivesâ€?) that has ever done anything but confirm the Executives power to use wiretaps in the execution of the Executive’s power over military and international affairs. If you want proof, just look at the latest backing down of the Congress with regards to this issue. The Legislators (including Republicans) will do everything that they can to maintain / preserve extend their powers in this realm but they will not do anything that will risk a showdown in the courts over the issue because they will lose – they know this because, as I said earlier, they (Legislature) have lost every case in the past.
So, I’m sorry to disagree, but in many areas that you call “gray areas� I think that history and facts show that they are well decided and wishing that they were gray doesn’t change that. If you don’t like the way the legitimate powers of govt are being applied then you have to either win elections and change the way that is used or else change the Constitution.
And as an addendum, the last administration lost 14 cases in front of SCOTUS trying to protect itself from the Congressional / Special Prosecutor investigations while the current administration is 3 – 0 in defending the Executives power in front of SCOTUS in its war on terror.
WD:
1) Unless I’m mistaken, Civil Rights were mandated by Amendment to the Constitution not SCOTUS (one might even agrue in spite of SCOTUS – to wit, Dred Scott). I’m willing to ascribe a wisdom to the populace however inefficient relative to SCOTUS, Legislature or Executive. I do agree that Article X has been flagrantly ignored but I stand by my assertion that a strong Article X however ineffectual is our last recourse short of marching on DC armed with pikes – or maybe they are one and the same.
2) Re War Powers: Article I, Sec. 8 is pretty clear about the war powers of the legislature. Executive war powers are often called into question due to their lack of specificity Art. II, Sec. 2. How SCOTUS will interpret what seems blatant is testament to the times in which we find ourselves. But speculatation regarding how SCOTUS will deal with WPA ’73 provides no lucidation. Both Exec and Legis have carefully pussy-footed around it so we’ll probably never know how constitutional it is. FWIW, I believe it will be upheld by SCOTUS if they ever look at it.
2) Re privacy: a) Yes, I am referring to the domestic part of the wiretapping and further warrantless wiretapping and further warrantless wiretapping of US citizens. In fact SCOTUS has repeatedly reversed Exec on issues such as this: Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), Ex parte Bollman, 8 U.S. 75 (1807), Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), Katz v. United States, 389 U.S. 347 (1967). All this has a republican congress scratching its head over why Bush would pursue what is almost certainly an unsuccessful campaign. So congress is ignoring him or otherwise trying to sweep this under the carpet. But the issue may be forced on them: http://www.epic.org/privacy/nsa/pi_order.pdf
Re addendum: I don’t get your score-keeping but I have to confess I haven’t been keeping score. Rumsfeld (exec) lost Hamdi v. Rumsfeld.
Unless I am mistaken, the only civil rights are not found “in” the constitution, they are found “after” the consitution in the Bill of Rights – the first ten amendments.
Hamdi vs Rumsfeld – Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an unlawful combatant. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.
After the Fourth Circuit denied a petition for rehearing, Hamdi’s father appealed to the Supreme Court, which granted review and reversed the Fourth Circuit’s ruling.
The Court’s opinions
Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
Section 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; . . . .
Plain text, you raised my curiosity so I tried to look it up but couldn’t find the answer online but I remember correctly, Hamdi is in a Navy Brig Norfolk VA awaiting a military tribunal. I also seem to remember that now, the only question is whether the Supreme Court will hear the question if a military tribunal is a “hearing before an impartial judge”. I tried to look that up as well but also, if am not mistaken, there is not even a question of law there as it has been deicided more than a few times before (WWII, WWI and Civil War) by SCOTUS that military tribunals are processes of “Due Process”.
And going back to the material from eikipedia – the War Powers Resolution has NEVER been invoked by the Congress (they’ve never used it to restrain the actions of any president using military forces) and no president has ever conceeded that they are contrained by it.
From wikipedia – Questions about constitutionality
The Supreme Court has struck down the ‘legislative veto’ embodied in Section 5(c) of the Resolution in the case INS v. Chadha (1983). However, in every instance since the act was passed, the President has requested and received authorization for the use of force (though not a formal declaration of war) consistent with the provisions of the resolution. The reports to Congress required of the President have been drafted to state that they are “consistent with” the War Powers Resolution rather than “pursuant to” so as to take into account the Presidential position that the Resolution is unconstitutional.
http://en.wikipedia.org/wiki/War_Powers_Resolutiion
And I had an article that I read the other day, but I cannot find it now that points out the case alw re: Pres powers while practicing his Exec position as said that in no cases has SCOTUS come down against Pres. I will continue to look.
Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence — here and abroad — as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president’s “inherent authority” under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen’s life and liberty are potentially at stake.)
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121901027.html
In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution. In addition, courts have rejected arguments under the Due process or the Equal protection clauses.
http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy
Plaintext – the Repb Congress is so “concerned” that they just killed the hearings and will inact a law that basically says “your right, just keep on doing waht you are doing”.
And just like in the War Powers Resolution, the Presidents will never say that they agree with the law by “obeying it” they will skirt the issue by saying that they are “acting in accordance with” the law and not pursuant to” the law.
And, the Congress will never try and enforce the actions under that law becasue they know that they would lose in SCOTUS as well as the court of public opnion.
If congress had any thing to gain by opposing the NSA wiretaps they would.
Welcome back Winston.
re:civil rights – Maybe I’m nitpicking but are you saying that the amendments do not comprise part of the US Constitution? I can’t ascribe to that notion.
re:Hamdi – Then we agree? From the wikiepedia article: “Fourth Circuit ruled that the broad warmaking powers delegated to the President under Article Two of the [US] Constitution and the principle of separation of powers prohibited courts from interfering in this vital area of national security. … Hamdi’s father appealed to the Supreme Court, which … reversed the Fourth Circuit’s ruling.” Thus SCOTUS limited war powers the Executive claimed it had via Article Two, regarding this, only Justice Thomas sided entirely with exec.
re:Section 2 – You can be commander in chief without the ability to mobilize forces in war (needs to be declared by congress.) I agree there have been a few “wars” that were never declared but which were nevertheless prosecuted by the executive and tacitly approved by Congress’ inaction. I’ve tried to demonstrate that individual action (Article X) can undo executive overstepping it’s powers when congress fails to act.
WD
Re: “Congress will never try and enforce the actions under that law [WPR] becasue [sic] they know that they would lose in SCOTUS” I disagree. If congress were to press the issue, exec would most certainly lose based on SCOTUS interpretation of constitutional separation of powers. But I agree congress never will press the issue not due to public opinion but because congress (especially the House) doesn’t actually want to be the arbiter of war, especially a war which entails conscription.
plaintext – I agree that SCOTUS upheld Habius Corpus, and then allowed the govt to keep him in jail with charges that will be heard in front of a military tribunal. Thus, unless SCOTUS steps in again, he will we caught, tries, convicted and sentenced without ever leaving the “hands of the executive”. So, Rumsfeld / the Executive Branch lost this one? I would say that any fair reading of the situation would say that the scope of the power of the Executive was not only maintained but increased.
And as far as WPR – if one branch gets to do basically whatever it wants to as long as it puts the words “acting in accordance with” and sends minions to Congress every few months to say those words, and another gets to pass a law that says that it can control that other branch but never uses it, then whom is controlling whom?
By the way, when was the last time that the Executive hadto go to Congress and testify under the WPR about troops in Bosnia? I think that there are still 3,000 there.
The major exception was the deployment of 15,003 soldiers to Bosnia and Herzegovina in 1996 and the steady presence of 3,000 troops there ever since.
http://www.heritage.org/Research/NationalSecurity/cda04-11.cfm
And if people were to read this link and books like “Imperial Grunts” many would be surprised at how many troops there are and where and that “oversite” might be more of a “euphemism” than an operative term.
Obviously I am not as exercised about this situation as many others but I think that others might be if they really understood the extent to which this “Empire” of the US and the “artereis and veins” formed by the military is spread through out the world.
Also see Kaplan’s articles (mostly in Slate) re: the lattest QDR – Rummy et al (read Neocons, whose “death has been greatly . . . . ” ) are drastically changing the basic struture / capabilties of US military. Marines will provide SOC troops for first time. Foriegn language training (by the way, just read article that USMC recruited so many native Arabic / Farsi speakers this year that they will not have to train any – recruiters must be hanging out at high schools araound Detroit suburbs) for many more etc etc. Also Army is converting to a “Brigade Structure” which has a much larger “tooth to tail ratio” and is more flexible.
US is doing the old “switch-a-roo” in Ahfganistan – NATO in US reducing and moving more towards Pakistan / Waristan boarder.
With Frau Merekl in charge in Germany they increased the number of Iraqi military and police officers that they are training in Germany by mroe than 8 times.
And I it never ceases to amaze me that the subject of conscription comes up. Total canard – it is physcially / practically impossible to have draftees in US military the way that it is constructed now. And not ony that, no one in military would ever allow it because of the Vietnam experience. The military would practically mutiny before they would allow anyone to push it so far as to need them. It would be like rats off a sinking ship, an “early warning exodus” – if you will of the professional military if they thought that they would be burden with a bunch of people who didn’t want to be there.
The US military is not just proffessional it is built on people who love what they do and they do not allow people to stay who don’t feel the same.
And regards to the structure of the Constitution and whether the Bill of Rights are part of it or not. I guess that any amendment is “part of it” but the process to get the 2 (body and first 10 amendments) were different.
It been 10 years since I read the Federalist Papers and and anything re: the history of the period but, if memory serves me correctly, including the first 10 amendments was a condition of approval led by poeple like Madison but the Bill of Rights were not ratified simultaneously with the body (I think that it was even a few years later) and even 1 of the first proposed Bill of Rights was rejected.
re: Hamdi – Rummy didn’t even want to charge the guy never mind allow him a lawyer or to stand trial even in front of a military tribunal. The decision is a bit murky because there were 3 issues to decide and the court splintered into four groups. But the upshot is the guy had to be charged and has to be given his day in court albeit likely a military tribunal. After which the guy can appeal a conviction by the tribunal which will never reach SCOTUS due to the decision in Merryman.
re: constitutional structure – regardless of the historical evolution of the constitution neither the articles of the constitution nor any amendment can be changed without the process of amendment. Adjudication can only interpret what already exists. When “the people” want to put a stop to adjudication of a sort, their only recourse is constitutional amendment. The exec & 2/3 of the senate can stack the courts with their cronies and effectively control any adjudication that way.
re: conscription – it’s congress that has the power to raise an army – so the military will have to take what it gets when they invoke the draft. Also they get their paychecks from congress, so it probably wouldn’t be financially prudent to be too mutinistic.
re: WPR – clearly congress is flatfooted on this.
re: empire – I defer to you on the details. We’ve always had deployments of troops all over creation. It’s only recently that this deployment has started to look like conquest. I believe this perception is due to the unilateral and preemptive nature of many of our recent miltary actions.
Thank GOD for a little yellow bird and winston dodson. You two are my favorites. I know no one has asked but I believe we need to trust the president during these troubled times. He is surrounded by hundreds of smart people who know what they’re talking about. Mr.Yoo is an expert and I believe we should listen to him and learn instead of just criticising.
Serious Lee- I disagree, but I am thankful that we can. I do not trust this president just because he is president. He has not earned my trust, in fact the opposite. Mr. Yoo’s interpretation of presidential powers to me are alarming.
The New York Times had a good editorial yesterday “The President and the Courts”
http://www.nytimes.com/2006/03/20/opinion/20mon1.html?_r=1&n=Top%2fOpinion%2fEditorials%20and%20Op%2dEd%2fEditorials&oref=slogin
The Supreme Court two years ago emphatically rejected the president’s claim that its jurisdiction did not extend to Guantánamo. Seeking to reverse that ruling, the White House in December helped push through a special amendment as part of the deal that also saw Mr. Bush sign a watered-down ban on torture of military detainees. The amendment, sponsored by Senator Lindsey Graham, a Republican, and Senator Carl Levin, a Democrat, stripped Guantánamo detainees of the normal rights of judicial review. It also designated a single appellate court to conduct a limited review of decisions by the military commissions, and left “enemy combatants” held without a trial in a seemingly inescapable legal black hole.
Also it is very interesting to note this quote from the same piece pointing to the use of the “d” word (dictatorship) by Justice O’Connor:
The retired Justice Sandra Day O’Connor observed in a recent speech that the framers created three separate and equal branches of government because they knew that preserving liberty requires that no single branch or person can amass unchecked power. According to NPR’s Nina Totenberg, who heard the speech, Justice O’Connor cited Republican court-stripping efforts as an example of dangerous overreaching. “It takes a lot of degeneration before a country falls into dictatorship,” Justice O’Connor said, “but we should avoid these ends by avoiding these beginnings.”
Bush shuns Patriot Act requirement
In addendum to law, he says oversight rules are not binding
By Charlie Savage, Globe Staff | March 24, 2006
WASHINGTON — When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act’s expanded police powers.
The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.
Bush signed the bill with fanfare at a White House ceremony March 9, calling it ”a piece of legislation that’s vital to win the war on terror and to protect the American people.” But after the reporters and guests had left, the White House quietly issued a ”signing statement,” an official document in which a president lays out his interpretation of a new law.
In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law’s requirements, he could withhold the information if he decided that disclosure would ”impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”
Bush wrote: ”The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information . . . ”
read the rest here:http://www.boston.com/news/nation/washington/articles/2006/03/24/bush_shuns_patriot_act_requirement?mode=PF
http://www.boston.com/news/nation/washington/articles/2006/03/24/bush_shuns_patriot_act_requirement?mode=PF
Glen Greenwald on the case….
Saturday, March 25, 2006
Administration tells Congress (again) – We won’t abide by your “laws”
The Republicans and Democrats on the House Judiciary Committee submitted detailed questions to the Bush Administration regarding the NSA program, and the DoJ’s responses to both the Democrats’ questions and its responses to the Republicans’ are now available.
There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President “agrees” to it and signs it into law, the President still has the power to violate that law if he wants to…….
Read the rest here:
http://glenngreenwald.blogspot.com/2006/03/administration-tells-congress-again-we.html