(1) Jane Hamsher is crusading to ensure that James Comey, the Deputy Attorney General under both Ashcroft and Gonzales, is called before the Senate Judiciary Committee to testify regarding his views of the legality of the NSA program. I sent her via e-mail my thoughts on this issue, including the excerpt from Gonzales’ exchange with Sen. Schumer which seemed to suggest quite strongly that: (a) Specter intends to call further witnesses, including, at a minimum, Ashcroft, Comey and Jack Goldsmith and (b) those witnesses will not be permitted to testify as to the internal deliberations which took place within the DoJ regarding these programs (on the grounds of executive privilege and perhaps attorney-client privilege), but will be free to state what their views are concerning the (il)legality of the program.
As the exchange with Schumer demonstrates, Gonzales was very meticulous in pointing out that Comey (and Goldsmith) had no objections to the current incarnation of the program, which means they did have objections either to: (a) some prior incarnation or otherwise proposed version of the program and/or (b) some other eavesdropping program. I don’t know what Comey will say, obviously, but he has a well-earned reputation for honesty and integrity, and the more witnesses who testify, the better — both because it keeps the scandal energized and alive and because the more facts that come out, the better.
(2) There are two extremely common legal misconceptions which are almost always spouted by Bush defenders when defending the NSA program: (a) if a President has the "inherent authority" under Article II to engage in warrantless eavesdropping, then this means that Congress is without power to limit or restrict that power (the simplistic Powerline defense); and (b) the AUMF constitutes a declaration of war.
I have spent a fair amount of time setting forth the reasons why both of these myths are false, but hopefully, the fact that Alberto Gonzales just testified that they are both untrue will prevent Bush followers from peddling them in the future.
Here is what he said about a President’s inherent power:
GRAHAM: If you don't buy the force resolution argument, if we somehow magically took that off the table, that's all your left with is the inherent authority. And Congress could tomorrow change that resolution, and that's dangerous for the country if we get in a political fight over that.
All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.
And, Mr. Attorney General, there is a better way. And on our next round of questioning we will talk about that better way.
GONZALES: Can I simply make one quick response?
SPECTER: You may respond, Attorney General.
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.
And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.
Whenever Bush defenders cite that line of pre-FISA cases which held that the President has inherent authority to engage in warrantless eavesdropping for purposes of foreign intelligence, they frequently imply, and often outright state, that this means that the President can engage in such activities even in the face of a Congressional statute making it a crime to do so. But as Gonzales made clear, to say that the President has the inherent authority to do X does not mean that Congress is without power to limit or regulate X. That is the whole point of Youngstown – that the President cannot exercise even authority he possesses in the face of a Congressional statute where Congress also has authority in that area.
And this is what Gonzales said about whether AUMF is a declaration of war:
GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
The DoJ -- somewhere along the line and for strategic reasons that I confess I haven’t been able to figure out fully yet -- decided it was important for them to take the position that the AUMF is not a declaration of war. Thus, according to the DoJ, there has been no declaration of war from Congress as to any of these conflicts. (Someone might want to tell the President, since he, in every speech, continues to say, as he did yesterday: "We remain a nation at war").
(3) The right-leaning Jon Henke at QandO provides further evidence that one need not ascribe to a liberal political philosophy in order to find the Administration’s excesses and deceit repugnant to the values on which this country was founded. Jon points to a new article from National Journal reporting that only a small minority of detainees at Guantanamo had anything to do with Al Qaeda, and that the Administration’s assurances regarding who it was who was detained there were fundamentally false. As Jon concludes:
This is why we have due process. This is why we have transparency. This is why a free people who want to remain that way ought to insist we apply due process and transparency even to suspected terrorists. Instead, we've largely stood by while the Bush administration has run roughshod over innocent people; while the Bush administration detained innocent civilians and lawful combatants, and abused them into false confessions. And then that administration had the temerity to say that legislation removing legal recourse by those people "reaffirm[s] the values we share as a Nation and our commitment to the rule of law"....
Remember: the people who told us that the detainees at Guantanamo Bay were all Taliban, captured on the battlefield or otherwise terrorists are the same people who swear, really, that the domestic surveillance program is "solely for intercepting communications of suspected al Qaeda members or related terrorist groups."
A commenter here a few days ago remarked that he never really cared about political issues until recently, but has almost been forced into caring by the radical and extremist measures taken by the Administration, which truly threaten our most basic political values. I feel the same way. I am far more engaged politically now than I was, say, five years ago, because I really perceive that not just political differences, but the kind of country we fundamentally want to be, is what is at stake in our current controversies.
I fully share these sentiments expressed the other day by Hilzoy at Obsidian Wings:
I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.
I feel the same way about the NSA story.
I couldn’t agree more. For me, the real trigger - the final straw - was the due process-less but indefinite detention of U.S. citizen Jose Padilla in a military prison with no access to lawyers or even charges of any kind, while the Administration argued that he no right to even have a court review his detention, which occurred on U.S. soil. To me, nothing is more un-American than that – nothing.
And the rationale on which those actions were predicated are exactly the same as the rationale on which warrantless eavesdropping and a whole host of other excesses are predicated. If someone isn’t opposed to these things and isn’t willing to fight against them, it’s hard for me to see how someone can claim to believe in the values and traditions of this country.
regarding the declaration or war vs. aumf distinction that gonzales has made...
ReplyDeletethis is just a complete guess, but could it be possible that congress is entitled to more direct oversight of the executives actions following an official declaration of war?
>If someone isn’t opposed to these things and isn’t willing to fight against them, it’s hard for me to see how someone can claim to believe in the values and traditions of this country.<
ReplyDeleteThat says it most succinctly. The very words that we use are having their meanings twisted into unrecognizability as we speak. Freedom now means freedom from having to think too hard about politics because CNN or Fox will tell us how to vote.
If someone isn’t opposed to these things and isn’t willing to fight against them, it’s hard for me to see how someone can claim to believe in the values and traditions of this country.
ReplyDeleteI think that’s part of the problem. The very idea that our “leaders” with their little flags on their lapels are making decisions that are fundamentally un-American and contrary to everything this country stands for is such gigantic leap from wanting our leaders to be worthy, that many people just can’t seem to accept it.
The gap between what we want to believe – a good and just America based upon the rule of law - and what’s happening is just too great to fathom. And, it’s just much easier to accept a myth than the truth.
It’s a happy myth wrapped up in all the symbols of freedom, with our President doing the best he can to protect us. It’s easy to accept, it doesn’t challenge us.
The truth, on the other hand, that we are slowly but inexorably abandoning our democratic principles for authoritarian ones, is unpalatable and too scary to contemplate.
“Truthiness” – the concepts one wishes to be true, rather than actual facts – is winning over the truth, and it’s biggest ally is fear – not only of terrorism, but of the truth.
Americans killed to date in Iraq: 2267
ReplyDeleteAmericans killed on 9/11: 2106
FISA legally limits the President's Artile II powers with or without the AUMF.
ReplyDeleteThe Supreme Court needs to hear and decide this case and Bush Impeached (and Gonzalez, Ashcroft, Yoo and company Disbarred and Jailed).
There has never been a more important issue than this one since the REVOLUTIONARY WAR!
Bush and his supporters are living in a pre 1776 world and they are the RED coats.
I think beedee's essentially right, though I'm not sure about congressional oversight specifically. But with a declaration of war, all sorts of things (e.g., relevant Geneva Conventions) would fairly uncontroversially apply. (Which is not to say they don't apply even absent a declaration, only that formalizing things would make it even harder to deny with a straight face that they do--that argument, such as it is, depends on portraying the "struggle against terror" as distinct from traditional notions of warfare.) And that would mean the administration's "inherent powers" assertion would have to be even broader on its face than it is now.
ReplyDeleteGlenn, you are doing marvelous work on this, thank you very much for your dedication.
ReplyDeleteForgive me if the following is just restating the obvious, but I just realized I have been missing something very simple about this whole business (duh!):
Remember that AG said something like: “Nobody has asked us to stop.” ?
That statement was considered disingenuous at the time. (It is, of course, because of the secrecy – but let’s leave that aside for now.) Factually he is correct – many people have complained, but nobody seems to have actually told the WH to stop.
And then – as you pointed out – from AG: “... the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.”
So the Administration’s position is simple: They will continue to believe what they are doing is legal, and they will continue to do it, until proven otherwise. The heated discussions in the House and Senate, and in blogs, TV and radio may well have political outcomes, but no legal determination will be made. And until that occurs, the WH will simply maintain that it’s all just a difference of opinion.
It seems to me that the legality of the program can only decided in one of two ways:
1) A court case in which the court holds the WH actions to be illegal. No doubt followed by drawn-out appeals and eventually proceedings before the Supreme Court.
2) New legislation that makes such conduct explicitly and unequivocally illegal.
Et voila! The AG is just calling the Senators' bluff; challenging them to pass some new legislation to make the WH cease and desist.
The WH will not feel compelled to change anything until the legality is settled one way or another, and option #1 is likely to take a very a long time. In which case, the real questions are:
a) How can we make option #2 happen? (I have no idea; I will leave that to the political experts).
b) What should any new legislation require the WH to do?
Obviously, the first requirement is to stop all warrantless surveillance without proper oversight from FISA or another appropriate body. But a critical issue will be what to do about the heaps of data that have already been collected. Further use of that material must be suspended until some form of oversight is put in place, and the storage of and access to the material (in its entirety) should be reviewed and made subject to independent oversight. (Unfortunately, destruction of the data would not work because it can’t be enforced or verified: i.e., the crooks would keep their copies, but the good guys would not even be able to compare notes).
”For me, the real trigger - the final straw - was the due process-less but indefinite detention of U.S. citizen Jose Padilla in a military prison with no access to lawyers or even charges of any kind, while the Administration argued that he no right to even have a court review his detention, which occurred on U.S. soil.”
ReplyDeleteThat’s not the worst of it though. That has to be the 4th Cicuit Court of Appeals (the second highest court in the land) under Michael Liddig (possible nominee to the Supreme Court) agreeing with the government that holding an American citizen without due process was constitutionally acceptable – basically that the ends (protecting us from terrorists) justified the means (violating the fourth, fifth and sixth amendments to the US Constition).
These people care nothing for the rule of law, truth or justice.
Thank you for your work on behalf of the country, Glenn.
This WaPo article notes that FISA Judges Kollar-Kotelly and Lamberth (the only Federal Judges who, to date, have had any chance to review the NSA program) expressed grave doubts about its legality. They refused to grant warrants based on evidence gathered through the NSA program.
ReplyDeleteThis has driven the wingnuts crazy. But it is the best indication to date (since unlike you or I, Judge Kollar-Kotelly has been briefed on the details of the Program) that the Program is illegal.
Go, Glenn! This is what needs to be said, and, even more, needs to be heard by the whole country!
ReplyDeleteIt is not only some conscientious contemporary conservatives that take this view.
ReplyDeleteEdmund Burke said it succinctly over 200 years ago: "Criminal means once tolerated are soon preferred."
This is why we have due process. This is why we have transparency. This is why a free people who want to remain that way ought to insist we apply due process and transparency even to suspected terrorists. Instead, we've largely stood by while the Bush administration has run roughshod over innocent people;
ReplyDeleteEtc etc. Yes indeedy. But you know, I can't tell you how many times I've found myself screaming at my TV or radio when some "conservative" goes yammering on about how "they're not entitled to due process--they're terraists!"
Well but whether they're terrorists is precisely what due process is there to determine. Can you say "begging the question"? I thought you could.
Nice to see some wingers have mastered elementary logic, however belatedly.
The lesson this nation learned from Nixon obviously did not sink in deep enough. Nixon's disease was not stamped out when he resigned. Instead it incubated in the three decades since he resigned only to re-emerge in a far more virulent form.
ReplyDelete"The Empire never ended," to quote P. K. Dick. He thinking about Nixon, whom he fictionalized as President Ferris Fremont, but the depiction of a president obsessed with an invisible terrorist organization called Aramcheck, of which anyone or no one might be a member, fits just as well if not better for Bush. The Empire never ended.
After Bush is dealt with, I think we need a constitutional amendment to ensure that the theory of the unitary executive is dead, dead, dead.
ReplyDeleteThere is nothing wrong with the theory of the unitary executive; and it doesn't have anything to do with Bush's claims that he has the "inherent authority" to violate the laws passed by Congress where national security is concerned. (It has to do with Congress not encroaching on Executive powers in administrative agency appointments and such, and as a separation of powers theory it is respectable.)That's among the reasons that Gore, in his speech, lambasted Bush for adopting a unilateral executive theory.
"Unitary executive" was, I'm told by a friend who studied poly sci and constitutional law, originally meant as one prez rather than a triumvirate or a committee. What Abu Gonzales and the rest of the neocon gang are meaning is basically "dictator", or "king". They just don't want to actually use either of those words, because then they'd be surrounded by people with scythes and pitchforks. Which they certainly deserve!
ReplyDeleteGlenn writes:
ReplyDelete(2) There are two extremely common legal misconceptions which are almost always spouted by Bush defenders when defending the NSA program: (a) if a President has the "inherent authority" under Article II to engage in warrantless eavesdropping, then this means that Congress is without power to limit or restrict that power (the simplistic Powerline defense); and (b) the AUMF constitutes a declaration of war.
I have spent a fair amount of time setting forth the reasons why both of these myths are false, but hopefully, the fact that Alberto Gonzales just testified that they are both untrue will prevent Bush followers from peddling them in the future.
Here is what he said about a President’s inherent power:
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.
Please...
Gonzales is referring to Congress' authority to declare war. This has nothing to do with FISA.
Whenever Bush defenders cite that line of pre-FISA cases which held that the President has inherent authority to engage in warrantless eavesdropping for purposes of foreign intelligence, they frequently imply, and often outright state, that this means that the President can engage in such activities even in the face of a Congressional statute making it a crime to do so. But as Gonzales made clear, to say that the President has the inherent authority to do X does not mean that Congress is without power to limit or regulate X.
That is completely incorrect.
Justice's opinion on this matter is clearly set forth in their white papers on the subject. Absent the waiver provided by the AUMF, Justice's position is that FISA is unconstitutional when applied to the NSA program because Congress may not abridge the President's inherent authority as CiC to collect foreign intelligence as established by the Courts.
And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.
There is no comparison with the case which Jackson was reviewing and this one...
That case dealt with the President's attempted seizure of domestic steel plants, not intelligence gathering. To start, Truman's argument that the seizure of steel plants was somehow an incident of his war making power was a big stretch. The fact that Congress has shared constitutional authority under the Commerce Clause made the executive's case even weaker.
All the case law which actually deals with electronic intelligence gathering supports the Justice position.
I too was disturbed by the Padilla detention. He should have been tried for treason or any other applicable criminal statute.
However, coflating that mistake with NSA intelligence gathering is like condemning the ENIGMA program because of FDR's detention of Japanese Americans. That dog simply won't hunt...
As for the detainees at Gitmo, the due process which they are entitled under the Geneva Conventions is simply a hearing to determine their status as either a legal combatant, an illegal combatant or a civilian.
This hearing process has released hundreds of detainees as civilians. Indeed, this hearing process appears to be lenient enough that we have mistakenly released enemy combatants who have rejoined the effort to murder Americans.
There have been no legal combatants found.
The remainder are illegal enemy combatants. They have no rights under the Geneva Conventions and can be summarily executed as were illegal combatants in WWII like the SS disguised as Americans during the Ardennes offensive. They are only living at our pleasure for intelligence purposes.
i find tortoise's comment above enlightening.
ReplyDeletei hadn't picked up on that.
the notion that the white house will continue doing what they are doing, with respect to spying or any other criticzed activities, e.g., social security privatization, until someone makes them stop is
entirely consistent with a belief I have that
v.p. cheney and many of his lieutenants(libby, addington) have used their decades of experience in the bureaucratic and congressional realms of washington to engage in bureacratic slight of hand,
e.g., changing or "re-interpreting" epa regulations, and
congressional sleight-of-hand, e.g., late-night changes in a bill already voted on by the congress,
to enhance the white houses's political power or to benefit their wealthy coroporate constitutents.
these back-street methods have the benefit of being done out of public sight,
difficult to discover, describe and crticize, and
unneeding of any effort to build public consensus.
if this is so,
it should come as no surprise that the white house, probably under cheney, libby, and addington's leadership, would use "bureaucratic" methods to establish and defend an evesdropping program of their own design targeting whomever they pleased.
now
back to tortoise's comment:
he/she mentions two alternatives,
a law suit or
a new law.
i'd like to suggest a third option which will register with american politicians of both parties for a historically long time:
severely punish the bush administration and the republican congress for letting this happen while they were leading the nation.
yes, i'm a democrat,
but, in the case of the bush administration, we have an administration (and a congress) drunk on power (rove, delay) in a way i've never seen before in my life time. even nixon was more inclined to listen to the public voice.
so
republican as well as democratic voters,
severly punish the republican party in the 2006 congressional elections.
and watch how fast george bush, dick cheney and their tonton macute (sp?) change their behavior in january, 2007.
There is no comparison with the case which Jackson was reviewing and this one...
ReplyDeleteWell, there is, but there need not be for the Jackson test to apply. Congress and the Executive both have authority in the area of domestic surveillance. Congress has spoken; so Bush is in a Jackson Category III situation when he violates the law enacted by Congress.
Almost every non-shilling lawyer to discuss the Jackson test has concluded Bush would lose in the SCOTUS. That includes the raging liberal Orin Kerr, over at Volokh. It also includes my arch-conservative Con Law prof (formerly of the Reagan DoJ), Doug Kmiec (sometime contributor to NR) who has concluded Bush was given bad legal advice.
More to the point with regard to FISA, Congress and the Executive likewise both have authority in the area of foreign surveillance, and that is the point that Glenn is trying to highlight and reinforce here. The point is, the authority and roles of the Legislative and Executive Branches in the area of national security, such as the spying means and methods that are currently at issue here, are not mutually exclusive. Pretending that they are is the strawman du jour.
ReplyDeleteGlenn - I have one quibble about a phrase you use, which I first noticed in your C-Span appearance: "political values" is the phrase.
As I define it, the only "value" represented by the phrase "political values" is winning at all costs. And nothing else.
I don't particularly subscribe to any "political values" that I can identify. I DO subscribe to our "Founding values" and to our liberties under the law and the Constitution as Americans.
I think you may be using that phrase as shorthand for the values we expect our government to uphold, but I'd respectfully suggest that "political" may not be the right word to use to convey that message, in this day and age.
And speaking of wording, I think perhaps we should all start getting more specific by talking about the "War on Terrorists." After all, if there were no terrorists, we wouldn't have to worry about the concept of 'terrorism' would we??
And then maybe we can start making inroads on a new "War on Fear," on behalf of our fellow citizens who have been scared out of their wits by Karl Rove & Co.
Issue: What is going to compel Congress to assert power against a Presidential rebellion against the Constitution?
ReplyDeleteMy view on the matter is, perhaps we need to take a wider view: Is the Federal government, namely Congress as a unified body checking the Executive -- willing to do that, or is it too disorganized. Perhaps what's needed is a discussion outside Congress on the scope of the failure of checks and balances.
Here's a thought on what this discussion might want to explore to solve this problem of imbalanced Federal powers, and reluctance to do anything about it. [ Click ]
Robert Turner was just on Wolf Blitzer in a very confusing story about whether Cheney broke the law or not by authorizing Libby. They just introduced him as a University of Virginia professor and played a snippet of him saying, "Cheney did not break the law."
ReplyDeleteOver in the UK we just saw John Bellinger, counsel to the US State Department and the man who provided the legal justification for the war in Iraq, on Channel 4 News saying that holding prisoners in Guantanamo Bay is OK, because they have no legal rights.
ReplyDeleteYou can watch it here.
http://www.channel4.com/news/special-reports/special-reports-storypage.jsp?id=1718
I found it deeply scary that the USA seems to have abandoned the notion of the rule of law completely, and that Bellinger ( formerly counsel to the NSA I beleive) can stand up and say this without shame.
Glenn, sometimes I come up with complicated opinions, but today I just want to say that it gives me a significant degree of comfort to know that not just ordinary, powerless citizens such as myself are fundamentally shaken and upset - and determined to fight -, but that specialists, experts and people with power are willing as well.
ReplyDeleteI firmly believe that in the long run, both the courts and the capture of Congress by an opposition party will bring a new tone in this country, and all that has never really caught the attention of mainstream america will have a day in the sun.
History reveals that leaders of this nature are eventually exposed and discredited for their lawlessness.
I,too, have been politically sensitized by the Bush administration. I admit that I was shocked and angered by Bush's behavior from the time of the Florida recount. The arrogance / swagger that appeals to his base is absolutely repugnant to me. I thought he got a pass for a terrible and unsettling performance on 9/11. I did not feel at all reassured by the appearance of Karen Hughes as a spokesperson for the government. His speech writers helped him recover some credibility for the service at the National Cathedral, but I was baffled by his annointing by the press as some kind of tough-guy icon because he managed a few tough words while holding a bull horn at ground zero.
ReplyDeleteMy early complaints about him - though certainly not forgotten - seem so minor (and repairable via an election in 2008) compared to my worries now.
Bush and his enablers sully the very thing (our form of government and our Bill of Rights) that they pretend to protect. I immediately wrote my Congressman and my Senators to lodge a protest over the treatment of Padilla. The response back (from Dems all) was tepid. Since that travesty, we've allowed tapping of attorney / client conversations, condemned torture while continuing to insist our right to do it, and learned the government is tapping people in the U.S. without a warrant. It is breath taking and mind boggling and yet the Stepford world carries on and watches "Survivor" and "American Idol" as if the outcomes of these "contests" were all that mattered. Bush seeks to divide the citizenry and to proclaim that our wonderful, strong institutions are nothing without him standing steadfastly at the helm. Our wonderful court system is painted as an encumbrance. The swashbuckler must be free to act! Congress is supine, and Bush and his minions dare our representatives to challenge him. And, as many have pointed out, they have all heeled to his power, and we find ourselves in this unbelievable mess.
Bush has treated us all like frogs in the pot; he turns the heat up more each day. Once we're cooked, there will be no turning back.
The DoJ -- somewhere along the line and for strategic reasons that I confess I haven’t been able to figure out fully yet -- decided it was important for them to take the position that the AUMF is not a declaration of war.
ReplyDeleteJust out of curiosity, if members of this administration ever end up going to trial over crimes committed during this "war on terror", do the penalties change depending on whether or not the US was formally when the crimes were committed?
I'm not a lawyer but it seems to me that any claim of Presidential authority under Article II is trumped by the requirements stated in the fourth amendment since amendments represent changes or modifications of the underlying document. Likewise any authority claimed under the AUMF cannot contravene the fourth amendment. Am I missing something here?
ReplyDeletetuimel said:
ReplyDelete"The swashbuckler must be free to act! Congress is supine, and Bush and his minions dare our representatives to challenge him."
On this point, Glenn, I've been thinking about Senator Feingold being hung out to dry yesterday, not only by the few Republicans who had stood with him on principle to oppose the lamely-revised "Patriot" Act, but apparently also by some key fellow Democrats, such as Dianne Feinstein of CA. [Is it true that this Act is full of "except as otherwise provided by statute" clauses and other unclear and confusing language that Gonzales would love to "define" for us...?]
This was thanks, of course, to behind-the-scenes plotting and wheeling and dealing by the Executive Branch and the Republican "leadership" of the Congress.
Senator Feingold didn't mince words in his Diary today on DailyKos, in asking for help from citizens and his fellow Democratic Senators on this. Considering how tied into FISA, and other potential abuse of power issues, this "Patriot" Act is, is there any way to give Feingold some cover and help in his principled stand?
It appears he will be calling, singlehandedly, for another filibuster, and he needs at least the "Democratic Party" as a whole, WHIPPED by its leader Senator Reid, behind him.
For my purposes, the provision(s) for a new Secret Service-run police force stops it cold, all by itself.
I think we owe our help not only to Senator Feingold, but to our fellow citizens.
That is completely incorrect.
ReplyDeleteJustice's opinion on this matter is clearly set forth in their white papers on the subject.
David Cole in today’s Salon has an article “The Dictator Defense” that just happens to dismiss Bart’s points one by one.
Justice’s white paper argues that Congress may not in any way impede the president's executive authority to choose the "means and methods of engaging the enemy."
Cole points out that this theory has few if any limits, since electronic surveillance is a "means and method of engaging the enemy," Congress cannot restrict it, even when it comes to spying on Americans without judicial approval, and even though Congress made such conduct a crime in the Foreign Intelligence Surveillance Act (FISA).
And President Bush claimed the same power, albeit in arch legalese, when he attached a signing statement to the McCain Amendment in December, stating that he would enforce the law "in a manner consistent with the constitutional authority of the president ... as Commander in Chief" -- or, in other words, consistent with the president's authority to violate the law whenever he chooses to do so.
Justice’s white paper, in other words, gives Bush dictatorial powers – the power to violate the law. We know who wrote the Constitution. Just who wrote this white paper?
Cole also points out that the AUMF doesn’t say one word about wiretapping, but that another statue titled "Authorization During Time of War," specifically addresses that issue.
If Congress was willing to grant the president only 15 days of warrantless wiretapping when it declared war, surely one cannot interpret a mere authorization to use military force -- which is far less severe than a declaration of war, and which is entirely silent on the subject of wiretapping -- to authorize unlimited warrantless wiretapping.
The administration’s legal justification for this power grab is so tenuous that you don’t have to be a lawyer to see the absurdity of it all. Bart’s legalistic grandstanding notwithstanding.
Whatever happened to Russel Tice, the NSA whistleblower who let Congress know in a written letter he was willing to testify before them?
ReplyDeleteTuimel, has it not occurred to you that while most of the country is watching American Idol, those who care passionately about issues such as we are discussing here, including concern for Padilla, a possible terrorist, do so in part because of a heightened sensitivity to the plight of others? They care. Please do not use unsettling references which involve the sadistic torment of animals to make your otherwise excellent points. Thank you.
ReplyDeleteIt seems that since the cowardly Congress is only two shades worse than Bushco, at least until an opposition party takes over one of the branches, and legal channels may produce too little, too late, the focus should be on the most attainable goal: picking up six Senate seats in the mid-terms. Apparently, five are within reach.
Isn't there some way to raise a very large amount of money from some billionaire who cares more about this country than about buying another yacht? How much can any one person give to the Senate campaign of someone running? Is PAC money not to be used for campaigns?
As for the Presidency, unless Feingold is elected, there's slim hope that either a Republican or Democrat is going to do what's necessary to save the Republic. I just don't see any Democrats out there whose dissent is based on conviction rather than politics as usual. Except Gore, but this is the first time he's displayed such eloquence on such an important matter, and it's hard to know if it
is for real.
Finally, a poster called Orin Kerr a real liberal. Isn't he rather a libertarian? He stongly supported Alito, and seems to indicate a conservative bias, if anything.
Hypatia said...
ReplyDeleteBart:There is no comparison with the case which Jackson was reviewing and this one...
Well, there is, but there need not be for the Jackson test to apply. Congress and the Executive both have authority in the area of domestic surveillance. Congress has spoken; so Bush is in a Jackson Category III situation when he violates the law enacted by Congress.
Almost every non-shilling lawyer to discuss the Jackson test has concluded Bush would lose in the SCOTUS. That includes the raging liberal Orin Kerr, over at Volokh. It also includes my arch-conservative Con Law prof (formerly of the Reagan DoJ), Doug Kmiec (sometime contributor to NR) who has concluded Bush was given bad legal advice.
As a preliminary matter, this should not be a conservative or liberal political issue - it is a straight forward constitutional law issue. Therefore, it does not surprise me that the liberal professor Cass Sunstein nominally takes Mr. Bush's side while your conservative professor takes the Dem side.
Folks, this all boils down to one thing. We know that the president has authority over foreign intelligence gathering. The opponents of this NSA program claim that congress has concurrent constitutional authority over foreign intelligence gathering which allows them to pass statutes limiting or eliminating the executive power.
Several very learned scholars and attorneys have attempted to make this argument, but none have found any precedent to support this position. They all cite to cases ruling on completely unrelated matters for general propositions which they argues apply to foreign intelligence gathering,
Here is my challenge...
Find me a single case over the past 200+ years which supports the proposition that a provision of Article I of the Constitution gives Congress concurrent power with the President over the collection of intelligence on foreign groups and their agents in the United States and that allows the Congress to enact statutes limiting or eliminating the executive power over this type of intelligence collection.
Hypathia, go ask your con law professor for help.
As an attorney who argues constitutional law issues on occasion, I find this to be a fascinating topic. I have read the scholarly objections and none have come up with any precedent to support their argument for the application of the Jackson concurrence to the arena of intelligence gathering.
Instead, all of the precedent concerning intelligence gathering state that this is an executive power.
Indeed, the congressional record indicates that the supporters of FISA were uncertain whether Jackson's theory actually applied in this case and whether FISA would survive in the courts.
Anyway, I await with interest the products of your work.
Finally, a poster called Orin Kerr a real liberal. Isn't he rather a libertarian? He stongly supported Alito, and seems to indicate a conservative bias, if anything.
ReplyDeleteEr, what I wrote is that he is a raging liberal, and that was sarcasm. I also am a libertarian, not a liberal, and I also supported Alito. And, like Kerr, I strongly doubt that Alito would uphold the Adminstration's extreme legal theories regarding its power.
Bart: I'm no longer in touch with my Con Law professor, having graduated from law school quite a few years ago. So, I won't be asking him for any answers to your questions.
It is simply the case that when this controversy erupted, I was deeply curious as to his opinion, I googled, and I found it.
I would refer you to the 2/2/06 Letter of Fourteen submitted to various Congresspeople (and signed by non-liberals like Richard Epstein and Bill Sessions) and cced to the FIS Court Chief Judge, for answers to your inquiries. That will also help you frame the correct legal questions. It has been linked here not too far below.
The opponents of this NSA program claim that congress has concurrent constitutional authority over foreign intelligence gathering which allows them to pass statutes limiting or eliminating the executive power.
ReplyDeleteNice try at framing the debate. The issue is whether or not the President has the Constitutional authority to ignore laws he deems unConstitutional, and he clearly does not. If the President wishes to act in a manner contrary to previously passed legislation, he must first challenge that legislation in court.
This made-up and abstract "authority" you want to talk about doesn't enter in anywhere. It's not in the Constitution.
Congress can draft up anything they wish. If it is signed by a sitting President, it then becomes law, until it is challenged in court.
If the President wishes to be free of the FISA restrictions, he must first challenge them in court. This is a fundamental part of the division of powers.
Nothing in the Constitution gives the President the authority to simply ignore law he doesn't like, and nothing in the Constitution gives the President the authority to determine which laws apply to him or not. He must take it to the judiciary.
"Find me a single case over the past 200+ years which supports the proposition that a provision of Article I of the Constitution gives Congress concurrent power with the President over the collection of intelligence on foreign groups and their agents in the United States and that allows the Congress to enact statutes limiting or eliminating the executive power over this type of intelligence collection."
ReplyDeleteI see, the problem is with your frame. You are assuming that all of the surveillance targets on domestic side must be “agents” of the foreign enemy. Many of us know better(http://www.aclu.org/safefree/spying/24009prs20060201.html) and know better than to simply trust the POTUS (any POTUS) to assure us, without judicial review, that all surveillance must, necessarily, be of enemy agents.
Hypatia said...
ReplyDeleteBart: I'm no longer in touch with my Con Law professor, having graduated from law school quite a few years ago. So, I won't be asking him for any answers to your questions.
It is simply the case that when this controversy erupted, I was deeply curious as to his opinion, I googled, and I found it.
I would refer you to the 2/2/06 Letter of Fourteen submitted to various Congresspeople (and signed by non-liberals like Richard Epstein and Bill Sessions) and cced to the FIS Court Chief Judge, for answers to your inquiries. That will also help you frame the correct legal questions. It has been linked here not too far below.
Thanks for the reference. I have already read this letter and this was partially what I was referring to when I posted that opponents cite to cases which have nothing to do with the gathering of intelligence.
If you can find some case law to support the application of the Jackson theory to intelligence gathering, I would be interested in seeing it...
prunes said...
ReplyDeleteThe issue is whether or not the President has the Constitutional authority to ignore laws he deems unConstitutional, and he clearly does not. If the President wishes to act in a manner contrary to previously passed legislation, he must first challenge that legislation in court.
Congress can draft up anything they wish. If it is signed by a sitting President, it then becomes law, until it is challenged in court...
OK...
So, if Congress passes a statute to detain all opponents of the NSA program such as yourself in concentration camps in North Dakota, Mr. Bush is obligated to arrest you and make you sit in stir until the courts rule on the constitutionality of this statute.
Let's make this even more fun...
Congress also has the power to define the scope of your Habeus Corpus rights. Knowing this, Congress also passed a law denying all detainees the right to file habeus petitions to the courts.
You are pretty much screwed under this imperial congress which you argue exists.
Zack said...
ReplyDeleteThat is completely incorrect. Justice's opinion on this matter is clearly set forth in their white papers on the subject.
David Cole in today’s Salon has an article “The Dictator Defense” that just happens to dismiss Bart’s points one by one.
Juan Cole is a whack job professor of Middle East affairs, not an attorney. This should be interesting...
Justice’s white paper argues that Congress may not in any way impede the president's executive authority to choose the "means and methods of engaging the enemy."
Cole points out that this theory has few if any limits, since electronic surveillance is a "means and method of engaging the enemy," Congress cannot restrict it, even when it comes to spying on Americans without judicial approval, and even though Congress made such conduct a crime in the Foreign Intelligence Surveillance Act (FISA).
That is a completely incorrect statement of the law. Such conduct would be unconstitutional under the Keith case. The cases to which Justice does cite all hold that the President may conduct warrantless electronic surveillance of foreign groups and their agents in the United States, whether native or foreign resident.
And President Bush claimed the same power, albeit in arch legalese, when he attached a signing statement to the McCain Amendment in December, stating that he would enforce the law "in a manner consistent with the constitutional authority of the president ... as Commander in Chief" -- or, in other words, consistent with the president's authority to violate the law whenever he chooses to do so.
This has nothing at all to do with the case at hand. Presidents have made written comments about laws which they have signed for decades. These comments have no legal authority other than to give courts some guidance about what the President thought he was signing when Congress hasn't given a clue about what it was attempting to accomplish.
Cole also points out that the AUMF doesn’t say one word about wiretapping..
It is a basic tenet of statutory interpretation that a statute with expansive language need not list every act to be covered as long as the act can be fairly construed to fall within the plain meaning of the statutory language. The AUMF also said nothing about taking prisoners, yet the Supremes stated that the AUMF covered that act.
but that another statue titled "Authorization During Time of War," specifically addresses that issue. If Congress was willing to grant the president only 15 days of warrantless wiretapping when it declared war, surely one cannot interpret a mere authorization to use military force -- which is far less severe than a declaration of war, and which is entirely silent on the subject of wiretapping -- to authorize unlimited warrantless wiretapping.
Actually, the statute to which that moron Cole is referring is a section of FISA. FISA does not require a Declaration of War to amend it. Rather, FISA expressly allows that it may be amended by any subsequent statute, of which the AUMF is plainly among.
You are pretty much screwed under this imperial congress which you argue exists.
ReplyDeleteUnlike the imperial Presidency you are pushing for?
Don't pretend to be obtuse.
Congress must act within the law, just like the President. Congress could not pass any legislation as you describe without violating the 1st amendment, obviously.
The President has already detained American citizens without bringing them to trial, in violation of those citizen's Constitutional protections.
Congress also has the power to define the scope of your Habeus Corpus rights. Knowing this, Congress also passed a law denying all detainees the right to file habeus petitions to the courts.
This would be possible with a Constitutional amendment, obviously. No such amendment is on the table, or will be. Anything less than an amendment would not be adequate. You know this, and don't pretend that you don't.
The president does not have the authority to retroactively veto legislation he doesn't like. He has to take it to court.
The Validity Of Unconstitutional Official Acts
ReplyDelete16 Am Jur 2d, Sec 177 late 2d, Sec 256
"The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it....."
I wrote:
ReplyDelete“David Cole in today’s Salon has an article “The Dictator Defense” that just happens to dismiss Bart’s points one by one.”
Bart responded:
Juan Cole is a whack job professor of Middle East affairs, not an attorney. This should be interesting...
This has nothing at all to do with the case at hand.
Bart,
Can’t you read? Can’t you follow a link?
I said David Cole. I didn’t say Juan Cole.
David Cole is Professor of law at Georgetown University and this has everything to do with this case, since he’s working on challenging Bush in court over this very issue.
You’re so busy engaging in what I call your “legal grandstanding” that you can’t bother to get anything right.
You’re beyond hope.
the fly: The Constitutionality of laws can only be determined by the Judiciary. The invalidity of of unConstitutional laws is a description of the status of those laws, but whether any particular law has that status or not is the Judiciary's perogative to determine. The Executive does not have that privilege.
ReplyDeleteFor instance, if the President challenged FISA's Constitutionality, and it was found to be unConstitutional after all, the Executive would not be legally liable for conducting warrantless surveillance of American citizens even though they had done so before determining that FISA was unConstitutional, due to the General rule that you cited.
On the other hand, if FISA was found to be valid, the Executive could potentially be prosecuted for violating FISA.
If citizens, like the President, could simply decide for themselves which laws were and were not Constitutional, we would have no effective law at all. Since the Constitution does not grant the President any special privilege to determine the Constitutionality of previously passed legislation, he must challenge any offending legislation in the courts.
The President does not have a retroactive veto. Determining the Constitutionality of previously passed legislation does not fall under the Executive's scope of authority.
.... those witnesses will not be permitted to testify as to the internal deliberations which took place within the DoJ regarding these programs (on the grounds of executive privilege and perhaps attorney-client privilege),...
ReplyDeleteCorrect me if I'm wrong, but didn't the courts decide during the Clinton years that there was no ACP between the president and the lawyers on the public payroll?
While I'm a fan of ACP (in fact, got a LTTE published in the NYT about this when Starr was going after Foster's attorney at the time), I thought the RW managed to tras ACP as applicable to those employed by the gummint, in theory doing the work of the gummint and thus indirectly of the American people -- the public -- themselves.
Cheers,
I still say the whole AUMF defense is a problem for the administration...it seems they're not really using it as a legal justification per se; they're just using it to claim that Congress abdicated their claim of authority (i.e. the authority of the FISA court) over this kind of surveillance when they passed the AUMF--that is, this defense amounts to the claim that with the AUMF, Congress simply backed away from any claim of authority which conflicted with the executive's authority. Note the subtle distinction here; this is technically not a legal basis for the surveillance. Instead, it's just a claim by the executive that there is currently no debate over who has the authority here. Via the AUMF, it would thus seem, Congress simply relinquished their claims regarding surveillance of U.S. persons communicating with foreign terrorists. So the question of the constitutionality of FISA becomes moot.
ReplyDeleteBecause if they are using it as a legal justification, then they are agreeing that during peacetime, the executive has no authority to bypass the FISA courts when they are required by FISA. But why would that be the case? It seems that would be the case only if FISA were in fact constitutional.
And in that case, the constitutional status of the AUMF becomes important. If the executive has his powers of foreign surveillance inherently, how could an AUMF modify them? If the AUMF is just an admission by Congress to consent to the executive's actions, then it doesn't really have any legal bearing...but then, if FISA is constitutional during peacetime, why whould it suddenly become unconstitutional during war? According to Yoo's theories, for example, you don't need a statute to enter a state of war--war just happens. So why would that affect the status of FISA?
Very tricky issues.
Very tricky issues.
ReplyDeleteThat's one way to put it. Another way is that blatantly clear and reasonable interpretations of American law are being intentionally obfuscated with multiple absurd and contradictory legal theories.
The fact is, warrantless wiretapping of American citizens is always illegal. It has never been otherwise.
But you have done a nice job of pointing out the self-contradictory nature of the administration's stance!
prunes writes:
ReplyDeleteThe fact is, warrantless wiretapping of American citizens is always illegal. It has never been otherwise.
Well, yes it has. Please see the following link:
History of Wiretapping
Wow, I didn't know that! Thank you for the link.
ReplyDeleteYou will note in that that although not required in 1928, warrants are now required for wiretapping.
I didn't know that! Thank you for the link!
ReplyDeleteYou will note in that link that while warrantless wiretapping was legal in 1928, it is so no longer.
Bart,
ReplyDeleteCan’t you read? Can’t you follow a link?
I said David Cole. I didn’t say Juan Cole.
Ooops!
I stand corrected.
I was blogging at another cite discussing one of Juan Cole's inane posts and I jumped the gun over here...
However, I stand by the legal analysis I made concerning DAVID Cole's arguments. They will fail in the courts unless he is arguing in the 9th Circuit...