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January 09, 2006

Comments

David Walser

It appears to me that Bush's critics have driven their rhetorical car off a cliff and are having a hard time putting the car into reverse and getting back on the road. First we were told the NSA's actions were clearly illegal. Now, the more honest of his critics have been forced to admit that the legality of the NSA program is at worst uncertain. Still, it's argued that Bush should have complied with the requirements of FISA, even if not legally required to, out of concern for the rule of law. It's on this firm grounding, that, in a time of war, the President took actions to defend our country with the good faith belief the actions were legal, his critics call for impeachment?

Cecil Turner

Klein nails it, first with the headline: "How to Stay Out of Power"; and then with the sum-up:

But there is a difference. National security is a far more important issue, and until the Democrats make clear that they will err on the side of aggressiveness in the war against al-Qaeda, they will probably not regain the majority in Congress or the country.
Way to go, Joe! (Now let's see if anyone's listening.)

Wonderland

It appears to me that Bush and the Republicans have driven their rhetorical car off a cliff and are having a hard time putting the car into reverse and getting back on the road.

Exhibit A is the intentional misrepresentation of critics' arguments in order to win a debate that does not exist. Everybody wants the NSA to eavesdrop on Al Qaeda agents in the U.S. The question is whether Bush has the unitary authority to do so when the targeted suspect is an American citizen in the U.S., without reference to the laws of Congress covering just that instance or a FISA court whose job is to prevent abuse.

Exhibit B, relatedly, is Bush defenders' almost robotic adoption of legal theories that justify Bush's actions, but which cannot be squared with any reasonable notion of limited Executive power or checks and balances. Bush is explicitly arguing that because we are at war, he has inherent authority under the Constitution to unilaterally and secretly authorize surveillance that targets Americans that he has unilaterally and secretly determined are linked to Al Qaeda. (Corollary legal theory: Bush can waive the restrictions of the torture ban, duly enacted by Congress specifically to tie Bush's hands, if Bush decides it's necessary.)

Legally, constitutionally, these arguments are hogwash. And no amount of rinky-dink "gray area" arguments can paper over that.

Exhibit C, of course, is that Tom et al. will keep peddling them until the car hits the bottom of the ravine. At 9.8 m/s/s, it can't be much longer now. Long live King George.

clarice

It's terribly hard for me to take seriously enough to read a posr which references "King George"--especially since once again the President was able to fill needed positions by recess appointments.

Gary Maxwell

Count me amonst the "robots" who are espousing "rinky dink" "hogwash" to keep us free from terrosist plots. Long live King George, especially because of how it irritates the Wonderland dwellers infected with terminal BDS.

danking70

Personally, I can't wait for King George's 3rd Term.

TM

Legally, constitutionally, these arguments are hogwash.

Oh, well, hard times for the Congressional researchers who settled for "grey" when asked about this program.

Why didn't they use the phrase "hogwash", or anything like it?

And, if I recall, even the Times is fulminating a bout a program that "may" be illegal.

Or may not be.

maryrose

Wonderland:
You need to brush up on your history of these United States of America. Also while you are at it consider how much you view is tainted by your acceptance of whatever some lawyermight say and his/her understanding of our Constitution. The POTUS has powers that go beyond legislative and judicial which you boy Clinton also used.

epphan

Sorry, Wonderland. I'll match your robotic lawyers saying it's illegal with an equal number of lawyers saying its legal. In fact, I bet we can find an equal number of judges, as well....woops. I spoke too soon. Of course your legal analysis is correct. How could 14 bajillion other opinions be wrong.

maryrose

Your theory of "limited executive power" is flawed.

Wonderland

Gary:

I think you have what is known as Type B BDS, symptomized by the automatic acceptance of any argument, no matter how preposterous, offered to ostensibly rebut criticisms of Bush, in the belief that such criticisms must be the direct result of Type A BDS. It's a far more serious malady, but unfortunately there won't be a cure until early 2009.

Anonymous Liberal

Klien's column is a muddled mess that conflates two very different concerns. The first is the concern that, without judicial oversight, spying powers will be abused. While Bush critics have raised this concern (and this is the concern that prompted the passage of FISA in the first place) this is, at best, a secondary concern. It is essentially a policy dispute over what the proper level of oversight SHOULD be.

The most serious concern raised by Bush's critics is that the president overstepped his constitutional authority when he authorized this program without getting Congress to first change the law. I am in this camp (along with Senator Brownback and Thomas Kean, the Republican Chairman of the 9/11 commission). That Klein has his head so far up his ass that he doesn't understand this distinction (or that this is not a partisan issue) is not surprising.

As for the Congressional Research report, Tom, I think you understate it's significance. The report uses a guarded and measured tone, I think, largely because of the gravity of its conclusions. Yes, the report refrains from stating flat-out that the President broke the law. But to quote Orin Kerr, "To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak."
The reason the report is so circumspect is because the researchers don't know enough about the actual details of the program to know for sure whether it violates FISA. But since the Bush administration isn't even arguing that the program complies with FISA, it's a fairly safe bet that it doesn't.

The report says that the President's legal position is "dubious," a word which I think they are using somewhat euphimistically. Either way though, I don't think it's quite accurate to describe their conclusion as being that the program is in a "gray area." They clearly doubt very much that the justification given by the DOJ would hold up in court. In other words, it's very clear where they would place their bets as to this program's legality.

Gary Maxwell

Wonderland

Do you think it improves your argument by using such loaded words as "rinky dink" or "preposterous"? I am just wondering. And just what do expect is going to happen in 2009? Go ahead, we will all laugh out loud when you say it.

Wonderland

TM:

I never said the program was definitely illegal. We just don't know enough about its details to say one way or the other. (I would, however, say that whether the President engaged in arguably criminal behavior -- because that's what violating FISA is: criminal -- is certainly newsworthy.)

But, in any event, the legal arguments offered to justify it are most certainly, shall we say, unavailing. No court (except maybe a Roberts/Thomas/Alito tribunal) would accept those arguments. If you read the CRS report, even just the last paragraph, that's what they say, albeit in couched, careful, and lawyerly terms. Heck, it's nonpartisan, so you wouldn't expect them to just come out and say "The President broke the law!!!" -- would you? Especially since whether the President broke the law is, at base, a political question decided by the Senate.

The NSA program is a secondary issue. The real issue is what, if any, limits Bush believes there are on his powers. Again, I point you toward the torture ban signing statement. It's all right there in plain English, and it's lame for you to mischaracterize critics' arguments and pretend that it isn't.

Syl

Wonderland, btw, what does Hillary have to say about the NSA issue?

Gary Maxwell

No court (except maybe a Roberts/Thomas/Alito tribunal)

You forgot Scalia! Sometimes you have to stop and wipe the fresh frothy foam off so that you get the script right.

Wonderland

Gary wrote:

"Do you think it improves your argument by using such loaded words as "rinky dink" or "preposterous"?

Probably not, but I figure I'm unlikely to win anybody over on this issue anyway (especially those with Type B BDS), so at least I'll write colorfully.

I will, in all seriousness, state unequivocally that any argument that the President has inherent authority under the Constitution or implied authority under the AUMF to conduct warrantless surveillance targeting American citizens in the US is indeed "rinky-dink" and/or "preposterous."

Gary also wrote:
"And just what do expect is going to happen in 2009?"

Um, George Bush will cease to be President, won't he? And both types of BDS will, thankfully, be things of the past.

danking70

What happened to King George, Wonderland?

Wonderland

Last one for Gary:

Dude, I didn't use Scalia for two important reasons. One, it was a tribunal. So if I added a fourth judge then the numbers would have been off. Two, Scalia is not an unabashed apologist for Executive authority, unlike the other three. He dissented, correctly in my view, in Hamdi and would likely not approve of the arguments now being forwarded by Gonzales on this issue.

But speaking of the script, thanks for sticking to yours.

Gary Maxwell

We are agree that you are unlikey to win over any converts, due to: (1) your argument and (2) your stype of argument.

I am thinking of a constitutional amendment to remove the amendment limiting the President to two terms. Its seems so unfair, since he is just getting good at his job. Wont you help out in this effort for the good of your country?

Gary Maxwell

Just by the way, a tribunal is a "court of justice" or "the place where justices sit in a law court". There is not an embedded reference to three in the general public's understanding of the term. It derives from tribune. In roman times a military tribune was one of six officers. And that is where we are headed with the Supreme Court once Stevens and Ginsburg move on for health reasons!

Anonymous Liberal

You forgot Scalia! Sometimes you have to stop and wipe the fresh frothy foam off so that you get the script right.

Wonderland beat me to the punch on this one, but he/she is very much right. If you read the Hamdi opinion, Scalia is clearly very hostile to the administration's theory of executive power. I'd be very surprised if he agreed with the Bush administration on this one.

kim

One flight makes you moonbat,
And one wrench, a wingnut.

Quoth the kool-aid drinking rabbit,
In the Castle Keeper's Hut.
=================================

Wonderland

Gary:

Technically correct, of course, but I was just trying to be a smart-alec. Hence the italics. Can't get one by you, though.

Gary Maxwell

Anton Scalia hero of the left. "One pill makes you taller and one pill makes you small and the ones that mother gives you dont do anything at all." Grace Slick

Larry

To assume that the CRS report is non-partisan is naive. This is a question of executive v. legislative power, not left v. right. The C stands for Congressional.

maryrose

The CRS is a report, nothing more nothing less. One set of opinions which you either buy or you don't. I don't happen to buy it.

danking70

Sorry Larry,

"C" has always stood for Cookie and that's good enough for me.

Cecil Turner

The most serious concern raised by Bush's critics is that the president overstepped his constitutional authority when he authorized this program without getting Congress to first change the law.

Which would require a public debate; during which our adversaries would undoubtedly "have modified their behavior, hampering our efforts to keep track of them." I find that whole line of argument completely unconvincing. Decry the program if you wish. Say it's too dangerous to democracy to be allowed in our Republic, or that the current emergency doesn't warrant it. All are arguable points. But disclosure has consequences, and pretending we can have public discussions of covert surveillance techniques without compromising the programs is simply not on. (Especially when expanding an existing program to allow for a particular type of intercept, as in this case.)

Anonymous Liberal

Well, Cecil, let me ask you this. Now that the Times has broken the story and the cat is out of the bag so to speak, why can't Bush go to Congress and have FISA amended? Why stick to the "dubious" argument that Congress already authorized the program via the AUMF?

boris

Why can't Congress simply amend or revoke FISA? Since it was their unworkable, constitutionally dubious turkey to begin with.

boris

Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

If it was necessary to protect the country it goes into effect immediatly. Congress committees were briefed and frankly any responsibility for fixing it up belongs with them. The president had other things to do and it was congress who created the FISA turkey in the first place.

boris

If the NSA program was necessary to protect the country it goes into effect immediatly.

(for the sake of clarity)

kim

Could be more than one cat in the bag. Judging from cats, there is.
====================================

azredneck

Amend FISA? You've got to be kidding! This Senate can't agree that today is Monday!

Anonymous Liberal

Where does the notion come from that if congress creates an unworkable turkey, constutionally doubtful, the president is responsible for getting it fixed?

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law. If the statute needs fixing, the executive branch needs to ask Congress to amend it. You don't just disregard the law.

Moreover, your position would make more sense (though not much more) if the administration (or anyone) had ever suggested that FISA was either an "unworkable turkey" or "constitutionally doubtful" prior to one month ago.

If the executive branch needs the law changed, is should go to Congress and make its case, in secret session if necessary. The Bush administration simply told Congress (and by "Congress" I mean a handful of members of Congress) that it was going to do X, Y, Z. It didn't ask for a change of the law. In fact, the administration's position is that they don't need to have the law changed. They can just disregard it at the president's sole discretion.

Does that really not bother you in the slightest, Boris? Are you really truly convinced that the president should be able to pick and choose which laws to follow so long as terrorism remains a threat (i.e. forever)?

Cecil Turner

Now that the Times has broken the story and the cat is out of the bag so to speak, why can't Bush go to Congress and have FISA amended?

Might as well, at this point. (Though I agree it's primarily Congress's responsibility, and it's unlikely to be the last round of the whole War Powers argument.) It's the contention that should have been the course of action after 9/11 I find dubious.

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law.

There's another part of Article II having to do with Commander in Chief responsibilities once Congress declares war. Spying on the enemy has traditionally been held to be an integral part of that duty.

If the executive branch needs the law changed, is should go to Congress and make its case, in secret session if necessary.

And then we'll have secret criminal laws on the books? Again, I find this whole line of reasoning unpersuasive.

boris

I believe that notion comes from Article I and II of the constitution, Boris. Congress makes the law, the President "executes" the law. If the statute needs fixing, the executive branch needs to ask Congress to amend it. You don't just disregard the law.

Poppycock.

If the NSA program was necessary to protect the country it goes into effect immediatly. Since protecting the country is constitutionally assigned to the president (Article 2), congress has the obligation to "regulate" accordingly (Article 1). When the "regulate" is in conflict with the "protect" please identify the constituional passage that specifies the remedy. If conservatives give priority to "protect" and liberals give priority to "regulate" that's probably why after 911 voters prefer conservatives.

BTW when the committees were briefed that constituted a clear indication that FISA was unworkable. Otherwise what is the point of the briefing ??? Pretending to be stupid is no substitute for reasonable argument. Thought you knew that.

Terrorism is forever ??? What a crock.

kim

Terrorism as violence to reason is forever.
============================================

Anonymous Liberal

Cecil,

Why would the laws themselves have to be secret? A few extra words here and there could totally alter FISA without giving anything sensitive away?

As for the executive's inherent powers under Article II, I have no problem believing that the president has the inherent authority to initiate this sort of spying in the absense of a Congressional statute. But it's quite another thing to argue that the president has the power to authorize this sort of surveillance in the face of a statute that specifically forbids it. When Congress has spoken on an issue, the president's power is at its "lowest ebb."

The inherent authority argument in this context is incredibly weak and there is virtually no case law that supports it. That's why the Justice Department is relying so heavily on the argument that Congress somehow did authorize this spying via the AUMF.

boris

the President "executes" the law

Executing and observing are not the same thing. Police have some latitude observing traffic rules for example while enforcing them. The NSA program clearly falls into just such a category relative to FISA.

clarice

You really are big on that drawing your chances on a "judge may I" when, in fact, this isn't a Fourth Amendment issue..Oh, well..

maryrose

Risen is on Hardball saying we don't know if there have been abuses, with the NSA tapping. He says 500 a day , how does he derive that number? Risen also says a workplace harassment atmosphere at CIA re; this and he has proof of this how? When asked if Cheney pushed President Bush into more NSA tapping says first briefings don in VP Cheney's office and that proves what?
Risen also states " WE SCOOPED THE WORLD WITH THIS STORY" And by golly getting that scoop is far more important than protecting the American people. {end of irony and sarcasm} Risen also says leakers are unsung heroes.

Anonymous Liberal

BTW when the committees were briefed that constituted a clear indication that FISA was unworkable

There's little indication that FISA was even mentioned during these briefings. Those briefed probably should have figured it out, but there's no evidence (at least that I've seen) indicating that the Bush administration went out of their way to indicate to congress that the program didn't comply with FISA or that FISA was unworkable.

As for you reading of Article II, Boris, please explain how such a system differs in any material way from a monarchy, at least in a time of war. If the president's decisions trump Congress's on all things related to protecting the country, are there any meaningful checks on presidential power?

And just for curiosity's sake, Boris, how long do you envision the war on terror lasting? What event will mark the end of the war?

TM

From Wonderland:

Bush is explicitly arguing that because we are at war, he has inherent authority under the Constitution to unilaterally and secretly authorize surveillance that targets Americans that he has unilaterally and secretly determined are linked to Al Qaeda. (Corollary legal theory: Bush can waive the restrictions of the torture ban, duly enacted by Congress specifically to tie Bush's hands, if Bush decides it's necessary.)

Legally, constitutionally, these arguments are hogwash. And no amount of rinky-dink "gray area" arguments can paper over that.

And a bit later:

TM:

I never said the program was definitely illegal. We just don't know enough about its details to say one way or the other.

My bad. "Hogwash" probably threw me off. Or maybe it was "rinky-dink "gray area" arguments".

Anyway, if you would care to provide the non-hogwash, non-rinky dink arguments that persuaded you that this is, in fact, unsettled, I would be delighted if you would share the code so that I can communicate successfully with other lefties I encounter.

boris

But it's quite another thing to argue that the president has the power to authorize this sort of surveillance in the face of a statute that specifically forbids it.

are there any meaningful checks on presidential power?

Couldn't stop a steel mill strike. Unlike the steel mill situation the president does have the power to execute surveillance regardless of statute. In this case the resources are directly under the presidents control. If the NSA program is necessary to protect then statute is trumped by AUMF and Article II. Since the executive is one of the equal branches of government the power given by constitution can not be undone by another branch. Overriding FISA does not interfere with the power to regulate the armed forces in any meaningful way.

(BTW communism still exists, but the cold war is over. Don't be a butthead.)

Anonymous Liberal

Executing and observing are not the same thing. Police have some latitude observing traffic rules for example while enforcing them. The NSA program clearly falls into just such a category relative to FISA.

Boris, this is a truly terrible analogy. Traffic laws are directed toward the general population, not on duty law enforcement officers. Of course the police don't always have to observe those rules, and of course strictly observing them would make it impossible for them to enforce the rules.

But that's not at all analogous to the spying issue. The FISA rules aren't directed at the general public; they're directed squarely at executive branch, specifically the NSA and other intelligence agencies. If the executive branch has the sole discretion not to follow those rules, then the law is meaningless.

boris

The example wasn't meant to be analogous to NSA vs. FISA. It was meant to illustrate the difference between "execute" (enforce) and "observe".

Once again, pretending to be stupid is NO substitute for reasonable agrument.

boris

The FISA rules aren't directed at the general public; they're directed squarely at executive branch

There is no constitutional war power that gives congress the authority to "regulate" the president.

Anonymous Liberal

Okay, Boris, then maybe you can explain how the distinction between "execute" and "observe" is relevant to this debate. Your first attempt didn't really do the trick.

Cecil Turner

A few extra words here and there could totally alter FISA without giving anything sensitive away?

I'm trying to envision that, and all I see are bitter arguments amongst civil libertarians (not that there's anything wrong with that) and front-page stories from legal analysts about how Bush is modifying FISA to snoop on war protesters. Again, unpersuasive.

The inherent authority argument in this context is incredibly weak and there is virtually no case law that supports it.

I disagree completely. My amateur legal analysis is that this is clearly allowed under any historical interpretation of Article II, and only became problematic under FISA (and that appears to be a mostly accidental implication of a provision that was incorporated to forestall a repeat of Nixon's rampant excesses). The Administration, failing to get authorization in the AUMF (where it belongs), went ahead with the logical course of action, and gave Congress the opportunity to voice its displeasure. Congress has so far demurred, and since they are the injured party, I can't get too excited about it. It's a common-sensical operators' approach to an intractable problem, and I think the right one. I see the argument of those who think it smacks too much of the Jesuit Principle, but I don't see a better practical alternative.

maryrose

AL, thE PRESIDENT DOES HAVE INHERENT LEGAL AUTHORITY DURING war time WHICH IS THE time WE ARE IN right nOW. yOU ASK FOR HOW LONG, FOr as long as it takes to defeat the enemy,so that means possibly some dem president will have this power too.

boris

Okay, Boris, then maybe you can explain how the distinction between "execute" and "observe" is relevant to this debate.

No. Simply this; the constituional authority to execute law is not the same as a constituional mandate to obey the law. If you wish to make the case that congress can regulate presidential war powers by legislation, you need a different quote. "Execute" is not "observe".

Anonymous Liberal

Maryrose,
Your use (or dare I say abuse) of the "Caps Lock" key makes me wonder how many drinks you had before sitting down to type.

Cecil,

I am in agreement with you on one thing. Besides the American people, the primary wronged party here is Congress. I find it sad that so many Republicans are willing to place party loyalty above institutional loyalty. If they don't start reasserting themselves, they're going to wake up and find that they've inadvertedly seeded much of their consitutional authority to the Executive branch. This is short-sighted to say the least. I can just picture the wailing and gnashing of teeth should the Democrats ever take back the White House.

boris

I can just picture the wailing and gnashing of teeth should the Democrats ever take back the White House.

Oh please spare me. That is so lame, the VRWC against BJ had nothing to do with too much domestic spying and the right has been consistently hypercritical of the Gorelick wall.

Dwilkers

An early entry for dumbest blog thread post of 2006:

"Dude, I didn't use Scalia for two important reasons. One, it was a tribunal. So if I added a fourth judge then the numbers would have been off.

OMG.

OMGROFLMAO!!!!

Cecil Turner

I find it sad that so many Republicans are willing to place party loyalty above institutional loyalty.

AL, this is just silly. Party loyalty, institutional loyalty . . . how about loyalty to the Constitution and the US? The only reason I support the GOP is because they "will err on the side of aggressiveness in the war against al-Qaeda"; and I'm convinced the Democrats will not. How many amongst GOP lawmakers do you think would vote to give the President that authority tomorrow, if asked? Do you honestly believe they are all moral midgets? Is it inconceivable to you that they might agree with him?

The reason Klein is right, and this is a loser for Democrats, is because most of the country disagrees with you. And the issue isn't "party loyalty."

Anonymous Liberal

The reason Klein is right, and this is a loser for Democrats, is because most of the country disagrees with you. And the issue isn't "party loyalty."

On what do base this assertion, Cecil? That hopelessly flawed Rasmussen poll? Did you see the AP poll this week that said 54% of Americans disapprove of warrantless spying by the NSA. And even that poll didn't ask the right question. If it had asked whether the President should have the power to order warrantless wiretapping in violation of a Congressional statute the numbers would have been even higher.

Party loyalty, institutional loyalty . . . how about loyalty to the Constitution and the US?

I was using the term "institutional loyalty" as shorthand for asserting the institutional powers provided to Congress by the constitution.

And I think you're right, many Republicans agree with Bush and are therefore not being hypocritical. I think that many others, however, silently agree with Senator Brownback, but are not speaking up because it might be politically damaging to Bush.

maryrose

Al,
I believe you and I have a basic disagreement on the question of presidential power. You believe Bush should have less and I think he should have more. As far as Congress is concerned, have you seen their polls lately? Nobody takes them seriously and the dems are too busy putting their fingers up in the air to see which way to come down on this, while Kennedy tries to slander Alito in his hearings.

MJW

AL "When Congress has spoken on an issue, the president's power is at its "lowest ebb."

Man, am I sick of hearing this stated as if it were established law. Over and over, the CRS report assumes it is. It's not. It's from Jackson's concurring opinion in the steel seizure case; an opinion in which no other justice joined. Thus, its value as precedent is pretty much nil.

maryrose

The AP IPSOS poll is the one that is inaccurate because it asked more dems and the sample was skewed. Rasmussen predicted 04 election results perfectly unlike early dem polls which had Kerry winning.

kim

The foolish Senator Brownback has admitted that he can hear but not see. He didn't hear 'talk' of this authority, but it is geschribben.
====================================

Rick Ballard

"Man, am I sick of hearing this stated as if it were established law."

Come now MJW, if you remove the sopists hatrack, they will be left standing their with a stupid grin on their face and their hat in their hands. It's all pretend anyway - let them have their hatrack.

Is there any argument being made by the sophists which has a value greater than nil? I haven't seen one. All we can hope for is that t'other side continues down their chosen path. In ten months they will be repaid in the best coin imaginable. As moderate's continue to lose their seats due to these idiotic posturings the size of the Blue Baronies will inevitably be reduced. Soon only cheap Blue Castle's surrounded by their rentseeking moats will remain.

I find that a comforting as well as charming thought.

Anonymous Liberal

MJW, your point about the steel seizure case is disingenuous at best. That particular line from Justice Jackson's opinion is routinely cited by people such as myself because it captures a principle that is evident from all the concurring opinions in that case. Many of the other justices used much STRONGER language. Jackson's opinion represents a sort of 'common denominator' of the various opinions. If you don't believe me, here are excerpts from all of the other concurring opinions in the case.

Justice Black:

"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

Justice Frankfurter:

"It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation."

Justice Jackson:

"But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act."

Justice Clark:

"I conclude that, where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis"

Justice Burton:

"The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President's order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers."

Anonymous Liberal

Correction:
The quote I attributed to Justice Jackson above is from Justice Douglas' opinion.

Cecil Turner

On what do base this assertion, Cecil? That hopelessly flawed Rasmussen poll?

Not surprisingly, we disagree on that, too. The IPSOS one was far worse, sampling 52% Dems vice 40% Reps and asking a leading question as well. I think Rasmussen hit it pretty well.

And I see just a bit of a qualitative difference between seizing steel mills and spying on the enemy (and agree with the Justices that the President's inherent authority for the former is a bit of a stretch).

Anonymous Liberal

Not surprisingly, we disagree on that, too. The IPSOS one was far worse, sampling 52% Dems vice 40% Reps and asking a leading question as well. I think Rasmussen hit it pretty well.

I'm willing to believe that both polls are shitty, but please spare me the defense of the Rasmussen poll. It was quite possibly the worst poll question ever asked. The question wasn't even remotely relevant to any issue actually presented by this controversy. It failed to mention anything about the spying being done without a warrant or in contravention of a statute (which is THE key point in all this). Also, the question assumed away any possibility of abuse by stating that the spying was only done on conversations involving terrorists. The whole point of having warrants is to see that spying is in fact being done on the people the administration says its being done on. If you assume away the possibility of abuse, there's no need for warrants.

In short, the way the Rasmussen poll question was framed, it's shocking that 100%of people didn't say yes.

boris

And I see just a bit of a qualitative difference between seizing steel mills and spying on the enemy (and agree with the Justices that the President's inherent authority for the former is a bit of a stretch).

Beyond that, seizing steel mills requires cooperation from the other branches who are thereby empowered to deny. NSA surveillance does not. There would need to be some mechanism for the judicial branch to take control of the NSA, the exact opposite of the steel mill case. Especially since congress is granting implicit permission by inaction.

BTW a valid poll question would be:

If requiring a warrant to wiretap foreign terrorist communication with agents in the US would increase the risk of another 911, should congress remove the requirement?

Cecil Turner

It failed to mention anything about the spying being done without a warrant or in contravention of a statute (which is THE key point in all this).

If the spying could be done with a warrant, or in compliance with FISA, I'd say you had a good point. As it doesn't appear that's the case, the only question is whether you want to do it at all. And again, Rasmussen hit it pretty well.

In short, the way the Rasmussen poll question was framed, it's shocking that 100%of people didn't say yes.

Yes, I've read the various winges about the poll. I found them unpersuasive the first time, and they don't get better with repetition.

maryrose

I assume there is no abuse, President Bush is protecting us from terrorists.

boris

Another point regarding ...

If the NSA program was necessary to protect the country it goes into effect immediatly. Since protecting the country is constitutionally assigned to the president (Article 2), congress has the obligation to "regulate" accordingly (Article 1). When the "regulate" is in conflict with the "protect" please identify the constituional passage that specifies the remedy. If conservatives give priority to "protect" and liberals give priority to "regulate" that's probably why after 911 voters prefer conservatives.

When the presidential Art II war power to "protect" is in conflict with the congress Art I war power to "regulate" which branch has the obligation to accomodate?

To claim the obligation falls on the president is to claim the proper resolution is to "unprotect".

To claim the proper resolution is to adjust the "regulation" obliges the congress to take the initiative.

MJW

AL, the difference between the steel seizure case and the NSA situation is that the Commerce Clause gives the control of interstate commerce to Congress, while the the President is commander in chief. In the seizure case, the majority opinion wasn't that Congress could exercise control over the President's inherent power; it was that the President couldn't override Congress's inherent power. In particular, it didn't impy there was some sort of overlapping power, as Jackson did. Admittedly, Frankfurter's opinion does lean toward that view.

Jim Rockford

Wonderland --

Assuming that at some point Al Qaeda attacks the US successfully, haven't Dems given the President a guaranteed out "I was doing everything I could stop another attack until Congressional Dems and the Media killed our efforts to stop terrorists."

And won't the dead be IMMEDIATELY labeled the fault of Dems and the Media who stopped efforts that worked for more than four years?

Are not Dems arguing:

1. It's worth trading American lives (at whatever count) for civil liberties absolutes.
2. Terrorism is not a real threat anyway.

Assuming the worst and we lose a major city, doesn't this debate simply finish the Dems? Assuming the best and we only have a Beslan type atrocity, doesn't this make Dems a slowly fading Green Party?

Most people LIKE an aggressive Executive fighting terrorism by pushing the envelope after 9/11. THATS WHY BUSH WAS RE-ELECTED. Dems are arguing conservative legal theory over aggressiveness. That's not the winning hand from where I sit. Since Dems already have a well-deserved reputation for being weak on fighting terror, weak on fighting Al Qaeda, and weak on public safety in general.

When Pat Buchanon gets up and says he and the Republican Party are fighting a cultural war, Republicans lose. When Dems say explicitly they will countenance any and all terrorist attacks rather than taking reasonable measures that work to stop terrorists, they lose.

clarice

I think it is amazing frankly how thw Dems keep drawing public attention to their weakest point--national defense. I have never seen such stupidity in a major party in my life. I can only conclude that they really have to do get more comfortable with being a minority party because that's what they are going to be for decades.

Rick Ballard

I dunno Jim, a rock'em, sock'em extrapolation from the Youngstown Sheet and Tube decision to the executive's improper exercise of its mandate to conduct the war under Article II and the AUMF could be a real winner. I'll bet that there are in depth discussions of the premises and predicates involved occuring in every coffeeshop in America every morning of the week. Not to mention the depth of discussion that undoubtedly continues throughout the dinner hour at every dining room table within the United States.

Who could possibly put the threat of a terror attack above the possibility that a private conversation with an al-Queada operative may have registered on a NSA computer?

The Dems have every right to make this the center point of their '06 campaign efforts. It beats having Reid or Pat Kennedy taking questions about Abramoff's distributions.

maryrose

Their blindness and weakness in this area is why I can't vote for them.

maryrose

O'Reilly Poll on key issues for 2006-
NSA Tapping- 7%

Wonderland

TM wrote:

"Anyway, if you would care to provide the non-hogwash, non-rinky dink arguments that persuaded you that this is, in fact, unsettled, I would be delighted if you would share the code so that I can communicate successfully with other lefties I encounter."

Look, there's a difference between saying that the administration's legal arguments are bogus and saying, without total knowledge of details, that the NSA program violates FISA.

Without getting too technical --

The argument's been made, with gusto (see Goldstein, Jeff and his brigade of commenters) that there may be technical aspects of the surveillance -- e.g., where or how the interceptions are taking place, or that "targeting" of known US persons is avoided, etc. -- that take it outside of the definition of regulated "electronic surevillance" under section 1801(f) of FISA. This argument also requires one to believe that the Administration is "holding back," so to speak, and relying on more amorphous authorities such as Article II and the AUMF, so as to not "tip its hand" legally or, in the alternative, make legal arguments that give away key details of the program. I don't necessarily buy it, but it's possible. So that's why I can't say for sure that the NSA program is illegal.

But I can say that if none of those technical reasons make FISA inapplicable; if FISA is on point because the NSA surveillance fits under 1801(f); and the Administration is indeed relying on the their Article II and AUMF arguments, then those arguments are bogus, wrong, incorrect, not kosher, insupportable.

Which is, incidentally, exactly what the CRS report says -- but they're a bit more, shall we say, measured in their presentation.

clarice

Wonderland. Take a deep breath.

The President has said "Nuts" to those who claim he violated the law by authorizing this progeam.

What is your next step and how do you propose to pursue it?

(And if it's impeachment let me know the basis and the witness list.

If it's a court proceeding, to the above please share with us the cause of action .

TM

Here is a link to Risen on Hardball; nothing really grabbed me, although Noraj O'Donnell repeated the "Were journalsists spied upon?" question (Risen stil does not know).

As to "are there any checks on the President in wartime?" Power of the purse.

As to the notion that requiring warrants prevents abuses - I don't quite see that.

I can see that absence of a warrant might make evidence inadmissible at trial.

And I can see that, if eavesdropping without a warrant was flatly, clearly illegal, whistleblowers *might* be more forthcoming and Congress might awaken.

But if the NSA is committed to abuse with the President's support, I don't see that requiring a warrant even slows them down - they will just spy, and lie.

I only mention that as a reminder that the first line of defense for our civil liberties is still the honor of the men and women in (in this case) the NSA, or in our government generally.

clarice

[b]the first line of defense for our civil liberties is still the honor of the men and women in (in this case) the NSA, or in our government generally.[/b] This is the most important thing anyone here has said all day. There are always circumstances no matter how carefully laws are crafted that we are dependent on the honor (and good sense) of those in power.

Wonderland

Jim:

Civil liberties isn't the issue. At least not unless and until there's evidence that the NSA program was used for non-terrorist related program activities.

The issue is Presidential power. Bush believes that he can ignore/circumvent/break Congress's laws when those laws impinge on what he has declared his Article II powers to be. Again, please go read the Bush signing statement accompanying McCain's anti-torture bill. It's in plain English for all to see -- if only you'd go look, dammit, instead of fantasizing about a nuclear New York and the end of the Democratic Party, maybe we'd get somewhere.

We're arguing rule of law vs. unchecked Executive power. Can we at least agree about what's being debated?

Cecil Turner

Which is, incidentally, exactly what the CRS report says -- but they're a bit more, shall we say, measured in their presentation.

It seems to me the main tension is between the President's Article II authority to wage successful war, and Congress's Article I authority "To make Rules for the Government and Regulation of the land and naval Forces." The CRS is hardly a disinterested observer, and I'd expect them to be a bit skeptical. That doesn't erase Article II, and the (War Powers) argument is not new.

The case is further muddied because FISA is not precisely on point (and was written before the peculiar threat of Al Qaeda), the AUMF is also the expressed will of Congress (and post-dates FISA), and Congress has not seen fit to act to restrain the Executive. That doesn't even get into the necessity issue (is the Constitution a suicide pact, and does Al Qaeda present a threat sufficient to warrant extraordinary measures? . . . probably not). There's lotsa gray here, and I for one am having a hard time seeing how or if it will be resolved.

And sorry for the late hit, but a minor winge on the oaths business. Gen. Hayden may have taken an oath to uphold the Constitution, but Bush's most recent one was a bit different:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
It seems to me a bit of a difference (and a pertinent one in this particular case).

richard mcenroe

"One, it was a tribunal. "

Dwilkers, Wonderland — What, you mean "tribunal" doesn't mean "three?"


Gales of derisive laughter, Bruce...!

Rick Ballard

"Can we at least agree about what's being debated?"

No. Find a plaintiff and file a case. Hypotheyicals lead to hyberpole such as "unchecked Executive power". It's simple sophistry and unworthy of debate. Find a Youngstown Sheet and Tube for FISA and file suit or sit down and shut up.

Unless you'd like to debate the total incompetence of the Legislative Branch in not addressing an outmoded law with national security implications. Now that would be a fit subject for debate.

I think that your best bet is to get John McCain to sign up as a champion for your cause. He's certainly dumb enough to fall for the argument and once he's unleashed he'll go full tilt - regardless of the ultimate stupidy of the endeavor.

MayBee

OK. Here is an example of today's thinking about the separation of powers from the brain trust the Dems/Reid ( or in this case, Leahy) have chosen to pander to.

clarice

It's a plot, the NEA dumbs down America to get the Dems elected.

Tom Maguire

The issue is Presidential power. Bush believes that he can ignore/circumvent/break Congress's laws when those laws impinge on what he has declared his Article II powers to be.

Oddly, I see this as a case of Legislative passivity and dereliction in wartime - they should have either demanded more info and attempted to amend the law, closed the program down, or shut up and let the Pres do his thing.

Congress seems to beleive that they have no obligation to attempt to check the Exec Btanch when he challenges their authority. Shameful.

Of course, they did let him do his thing. So maybe they should resume shutting up.

Anonymous Liberal

This letter was sent to Congress today by 14 law professors and former federal officials. Here's an excerpt:

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President’s inherent constitutional authority as Commander in Chief to collect “signals intelligence” targeted at the enemy, and maintains that construing FISA to prohibit the President’s actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

You all may be right about this issue being a political loser for the Democrats, but it's downright obnoxious to suggest that this debate boils down to how aggressively we should fight terrorism. The vast majority of those criticizing Bush right now are fully in favor of surveilling terrorists and fighting the war on terrorism agressively. I, for one, have no problem with the current NSA spying program itself. My conern is with the theory being invoked to justify authorizing the program extra-legally. My concern is that Bush has not gone to Congress and claims he doesn't have to. The way you're all talking, it's as if Congress was controlled by the Democratic party. Jim Rockford writes:

And won't the dead be IMMEDIATELY labeled the fault of Dems and the Media who stopped efforts that worked for more than four years?

Besides being a disgustingly dishonest straw man, this statement makes no sense.

First, no one is trying to "stop" the NSA program. We just don't think the President has the power to violate the law. If the program really is a good one, we'd like to see Congress pass legislation making it legal. If the NSA program at issue can't get Congressional approval, it would only be because the Republican majority, not the Democrats, refused to approve it.

If you'd stop your hyperventilating about issues that no one is arguing, you might see just how weak the president's legal position is. This isn't a debate about what programs to implement, it's a debate about who has the authority to implement them. The Republican party controls both the legislative and executive branches, so this isn't about Republicans vs. Democrats. It's about the separation of powers. It's stunning how few people seem to understand this simple point.

Rick Ballard

Geez, MayBee, give a hint when you link to Koslandia. Now my computer has slowed down.

MeTooThen

It seems to me that these threads all end up in the same place; nowhere.

The essence of the posts from AL, Wonderland, and their ilk is always some measure (or poorly measured level) of outrage over the latest malfeasance, criminality, or otherwise dangerous and nefarious deed of W. and his NeoConMcHaliburton Cabal.

It is so tiresome.

When, if ever, ever once have said commenters answered in the affirmative as to what they suggest the military, Congress, or the POTUS do to protect the USA and its citizenry against terror threats?

For cryin' out loud.

Don't intercept their communications.

No interdiction on foreign soil.

No coercive measures to extract information.

On and on.

OK, so tell us, we're waiting...

Tell us, in the affirmative, how to prosecute the war against Islamic terror?

This presumes, of course, that they believe there is such a thing as a threat of terrorism, and that there is some reason to do something about it.

Time and again we are met with the disproportionate and platitudinous calls for censure against the President, impeachment, the jailing of his cabinet and his advisors.

OK, we get it!

You think the W. is a joke.

You hate him.

You hate Republicans.

You hate Christians.

You hate the military.

Whatever!

If the Left, or whoever-the-hell they think they are, in this country spent a fraction of their time actually working toward solving security issues instead of braying like the asses they are, then maybe they could elected again.

But not until.

It's.Old.Already.

Get.the.Fuck.Over.It.

Try pulling some weight here.

When will the war on terror end?

When we fucking win, that's when.

It took eighty years to democratize Europe and free 400 million people from the slavery of the Soviets.

How's that?

Are eighty years long enough?

How about we worry about that later? OK? How about we worry about someone trying to kill you and say, your family, everyone in your neighborhood, in your state, in your time zone?

Do you get it?

Do ya'?

...

Enough.

Really.

/rant off

clarice

Harvad law school alone has 199 law professors..What percentage of all the law professors in America do you think the kooks who wrote this represent?

Rick Ballard

Or maybe slown down - see what you did to me?

AL,

Dereliction on the part of the Legislative Branch in the exercise of their duty is certainly within the range of contemplation.

An appeal to authority based upon a letter from law professor is risible on its face. Find a plaintiff - or get McCain riled up enough to do something stupid. It's really not that hard to accomplish. Except for his hallucinations about becoming CiC, of course.

boris

I don't get the thingy about the unchecked absolute executive power that can't even stop a war time steel mill strike. Can somebody please explain that? It almost sounds deranged or something.

clarice

I'm still wondering awhy King George with his " unchecked absolute executive power" has to shoehorn his nominees in thru recess appointment.

Anonymous Liberal

MeeTooThen:

Count me impressed. I've never seen so many straw man arguments thrown out there in such a short post. You're like a fountain of ignorant cliches. Maybe if you spent some time engaged in actual debate rather than vomiting up tired stereotypes and demonizing people you clearly don't even understand, the level of discourse here might improve a little.

You may not agree with Wonderland, or myself, or any of the other "liberal" commenters who venture to engage in debate here, but we always endeavor to be civil and respectful and keep the debate interesting. If we were to leave, the debate here would be very one-sided, far less interesting, and far less constructive. And trust me, MeeToo, you are the last person in the world who needs to be stuck in an echo chamber. You need some exposure to real opposing viewpoints (not straw man constructs) and you need it in a bad way.

So please, keep the ignorant ranting to yourself. If you want to be constructive, by all means engage in the discussion, but otherwise, save it.

MayBee

Rick- I found 'slowed' down to be entirely appropriate. Don't angst over it. :-)
That was a top-recommended diary by the way.

richard mcenroe

Do we really want the Democrats to "come back?" I mean, we've seen what they believe and what they'll stoop to, now. Isn't better that we encourage, even goad them further along, until it becomes inarguably evident to an even larger majority of this country?

Rick Ballard

Richard,

If they don't change leadership it would be better that they were restricted to their Blue Castle's. It will be another ten years at minimum before the rentseeker's moat can be drained and I don't believe that Ahmadinejad will pass on the opportunity to capitalize on the Dem usefool fools in the interim. I don't particularly care whether or not they come back, I just wish they would quit objectively supporting al-Queada.

AL,

Don't kid yourself about "adding to the debbate", you haven't to this point and I doubt very seriously whether you actually have the capacity to do so. Pretense and sophistry do not constitute thoughtful discourse. Your faux concern about the separation of powers is as thin as gauze.

MTT

AL,

Whatever.

It's like high school debate, except you have chosen the same side on every single issue.

That's the point.

There is no requisite variety.

Please, the cliche here is the solipsism and the uninterrupted outrage du jour.

If we were to leave, the debate here would be very one-sided, far less interesting, and far less constructive. And trust me, MeeToo, you are the last person in the world who needs to be stuck in an echo chamber.

It.is.to.laugh.

You aren't doing anyone any favors.

Really, you're not.

But if you want to do everyone a favor, answer in the affirmative what are the appropriate meaures to extract information from unlawful combatants?

Or how best should the NSA intercept terrorist communication?

...

It is not enough to only critcize.

You don't get it.

You really don't.

As noted above by others, and as I have written here before many times, the reason that as a life-long Democrat I support W. is his willingness to prosecute the war against Islamic terror.

...

OK, I'm game,

Here:

It is not only the perogative of the POTUS to order interdiction of terrorist communcation vis a vis electronic surveillance, including but not limited to data-mining, but it is his obligation to do so.

That such interdiction may run afoul of FISA is the fault of Congress, not the POTUS. Congress cannot through any means limit the power of the Executive, and vice versa.

...

With all due respect, it's tiresome, AL.

Really.

There is no satisfying you.

None.

It's all Bush's fault, all the time.

Requisite variety.

Look into it.
...

The goal in life is not to be right.

But to adapt.

And thrive.

There's war on, Darling.

How about we all pull together and figure out a way to win it?

That's the point.

Otherwise, put it to rest.

It's masturbatory.

...

Like I said, whatever.


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