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

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

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.”

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.

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.

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.

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.

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.