There are numerous noteworthy items, but the most significant, by far, is that the DoJ made clear to Congress that even if Congress passes some sort of newly amended FISA of the type which Sen. DeWine introduced, and even if the President "agrees" to it and signs it into law, the President still has the power to violate that law if he wants to. Put another way, the Administration is telling the Congress -- again -- that they can go and pass all the laws they want which purport to liberalize or restrict the President's powers, and it does not matter, because the President has and intends to preserve the power to do whatever he wants regardless of what those laws provide.
Question number (5) from the Committee Republicans asked "whether President Carter's signature on FISA in 1978, together with his signing statement," meant that the Executive had agreed to be bound by the restrictions placed by FISA on the President's powers to eavesdrop on Americans. This is how the DoJ responded, in relevant part:
The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power. . . .
Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.“ (citations omitted).
Can that be any clearer for you - Congressmen, Senators, journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to "protect the nation." Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.
Thus, Sen. DeWine can pass his cute little bill purporting to require oversight, or Sen. Specter can pass his, or they can do nothing and leave FISA in place. None of that matters, because no matter what Congress or even the President do with regard to the law, the law does not restrict what the President can do in any way. They are telling the Congress to its face that all of the grand debates it is having and the negotiations it is conducting are all irrelevant farces, because no matter what happens, the President retains unlimited power and nothing that Congress does can affect that power in any way.
The reality is that the Administration has been making clear for quite some time that they have unlimited power and that nothing -- not even the law -- can restrict it. But here, they are specifically telling Congress that even if Congress amends FISA and the President agrees to abide by those amendments, they still have the power to break the law whenever they want. As I have documented more times than I can count, we have a President who has seized unlimited power, including the power to break the law, and the Administration -- somewhat commendably -- is quite candid and straightforward about that fact.
I believe that even people who are aware of these facts have not really ingested or accepted the reality that we have an Administration that has embraced this ideology of lawlessness. Yesterday, I received numerous e-mails from people asking why I had not written about this report from the Boston Globe, which reported:
When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.
The reason I didn't was because, as extraordinary as this signing statement is in one sense, it really reveals nothing new. We really do have an Administration which believes it has the power to break all laws relating, however broadly, to defending the country. It has said this repeatedly in numerous contexts and acted on those beliefs by breaking the law -- repeatedly and deliberately. They are still breaking the law by, for instance, continuing to eavesdrop on Americans without the warrants required by FISA.
This is not theory. The Administration is not saying these things as a joke. We really do live in a country where we have a President who has seized the unlimited power to break the law. That's not hyperbole in any way. It is reality. And the Patriot Act signing statement only re-iterates that fact.
In response to the Republicans' question (number 27) about whether President is exceeding his power by not just executing the laws but also interpreting them, the DoJ said this:
In order to execute the laws and defend the Constitution, the President must be able to interpret them. The interpretation of law, both statutory and constitutional, is therefore an indispensable and well established government function. . . .
The President's power to interpret the law is particularly important when he is engaged in a task -- such as the direction of the operations of an armed conflict -- that falls within the special and unique competence of the Executive Branch.
The "unique competence of the Executive Branch," to them, encompasses pretty much everything of any real significance, including what can be done to U.S. citizens on U.S. soil. With regard to all such matters, the President not only executes the law, but interprets it, and Congress is without power to do anything to restrict the power in any way. Here they are -- saying exactly this, again.
Put another way, the Administration has seized the power of Congress to make the laws, they have seized the power of the judiciary to interpret the laws, and they execute them as well. They have consolidated within themselves all of the powers of the government, particularly with regard to national security. This situation is, of course, exactly what Madison warned about in Federalist 47; it really is the very opposite of everything our Government is intended to be:
From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.
His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.
As usual, the most amazing aspect of all of this is not that the Administration is claiming these powers. It is that even as it claims them as expressly and clearly as can be, the Congress continues to ignore it and pretend that it still retains power to restrict the Administration by the laws it passes. And the media continues to fail in its duty to inform the country about the powers the Administration has seized, likely because they are so extreme that people still do not really believe that the Administration means what they are saying. What else do they need to do in order to demonstrate their sincerity?
I think if I were a member of congress I'd get my own bomb sniffing dogs.
ReplyDeleteHow's the book coming, Glenn? Did you get a nap, yet?
Take care, Jan
Glenn: I haven't read the DOJ responses yet, but one small quibble on your post: The fact that Carter signed FISA does not mean that a future President is estopped from concluding that the statute is unconstitutional. The problem is not that Bush is unwilling to abide by statutes that he considers unconstitutional (in that respect, there's nothing new), or that he has a different constitutional view from that of his predecessors. The problem is, as you have explained, one of substance -- that his constitutional theory of a Commander-in-Chief prerogative is shockingly broad. The relevance of the Carter signing statement is not that it exists, but that it was the culmination of a long and involved legislative process in which Attorneys General of both parties -- esteemed lawyers Ed Levi and Griffin Bell -- specifically considered the constitutional arguments (which were raised by none other than Lawrence Silberman during the hearings, and which were discussed on the floor of the House), and agreed that the modest limitations of FISA were constitutional. Bush's conclusion to the contrary thus is a break with decades of constitutional judgments of his predecessors. This by itself doesn't make it wrong, or illegitimate -- but it does point out how groundbreaking and alarming it is.
ReplyDeleteP.S. For what it's worth, I "broke" the story of the PATRIOT Act signing statement at the end of this post: http://balkin.blogspot.com/2006/02/mother-of-mercy-is-this-en_114098414956416326.html. But it's not worth much because, as you note, such statements are now pro forma for this Administration, which has issued dozens of similar statements.
I missed Hardball, Lou Dobbs and Keith last night, the only 'news' programs which might have mentioned this story. Did they address it?
ReplyDeleteI'm still convinced that we need to sharply focus on Dobbs and Olbermann.
The fact that Carter signed FISA does not mean that a future President is estopped from concluding that the statute is unconstitutional.
ReplyDeleteMarty - I agree. Others have, but I have never invoked the argument that Carter's signing of the law means that Bush is bound by Carter's understanding (although, as you point out, there is a political significance to that in that FISA is the by-product of an agreement by the country as to how eavesdropping should be regulated).
I quoted that question and answer not to make the point that Carter's agreement estops Bush, but to highlight that in the DoJ's answer to that question lies a claim that EVEN IF Congress passed new laws AND President Bush agreed to their limitations, he would still retain the power to violate that law. In other words, not just Carter's agreement, but even Bush's agreement, to abide by laws would not take away Bush's power to break that same law that he explicitly agreed to be bound be.
While the Boston Globe article may not have revealed anything new to those of us who read this blog, it was the clearest explanation of the radical nature of Bush’s actions that I’ve seen so far in the media. Can it get any clearer than that?
ReplyDeleteAnd the media continues to fail in its duty to inform the country about the powers the Administration has seized, likely because they are so extreme that people still do not really believe that the Administration means what they are saying.
There is another possibility. That the top of the corporate media fails to inform the people about this because it’s easier for them to go along with the administration than to confront them.
The administration has made clear to the media that there will be consequences for confronting them and the media, to a large extent, is willing to comply. That is the real lesson of yesterday’s fiasco with young Ben – the extent the press and media are willing to go in order to accommodate the radicals.
Billmon made this point quite succinctly yesterday:
The problem, writes Billmon, is that instead of coaxing the radicals to the center, “the media establishment is being coaxed further and further to the right -- and rewarded for staying there.” He continues:
But the eagerness of the corporate media to roll out the red carpet for the rhetorical bomb throwers of the right has been every bit as impressive as I expected, and then some -- to the point, as others have already noted, where it's getting hard to find a major conservative blogger who doesn't have some sort of MSM gig or affiliation, and/or isn't constantly being shoved down the optic nerves of the cable TV news audience.
The corporate suits now opening the journalistic doors to the propagandists of the authoritarian right are powerful and privileged people who hope that appeasing the blogswarm will help them remain powerful and privileged -- or at least avoid the fate of Eason Jordan and Dan Rather. This, as I (and many others) have already noted, bears a striking resemblance to a successful protection racket…
The authoritarian right doesn't want to overthrow the system; it just wants to purge it. And, as Keith Olbermann recently pointed out, there are plenty of suits in the corporate corner offices who would be more than happy to go along…
In other words, there are those in the media who understand completely the radical nature of what Bush is doing, but it is in their interests not confront them. Yes, it’s very clear that the emperor has no clothes, but it’s not in their best interest to point it out.
That is at least a possibility. The Boston Globe article is a step in the right direction, but until we see this widely debated on the talk shows, the administration will continue to get away with it.
In other words, there are those in the media who understand completely the radical nature of what Bush is doing, but it is in their interests not confront them. Yes, it’s very clear that the emperor has no clothes, but it’s not in their best interest to point it out.
ReplyDeleteGreat excerpt and I agree completely. One of the most significant issues - and one that I've written the second most about after these lawbreaking theories - is the concerted and very potent efforts to threaten and intimidate the media through a whole host of actions, including the increasingly formalized and serious threat of criminal prosecution, actions which the more authoritarian components of the Bush followers have been urging for some time.
In addition to laziness, a refusal to take the Administration's threats seriously and a whole host of other motives, it is unquestionably true that many jouranlists and establishment media types are simply afraid of the Administration and its many appendanges and - like trained dogs - know that there are rewards for compliance and punishment for disobedience. Case after case shows that, and reporters and media executives are hardly immune from noticing.
I think that the only way that people well come to realize the import of what the Bush administration is arguing is when we find ourselves corralled behind barbwire for speaking poorly of Our Leader.
ReplyDeleteKudos again to the Boston Globe for their editorial today “Blank Checks No Balances.”
ReplyDeleteBy the same token, Congress will have to insist on the reports required by the Patriot Act or watch as the principle of separation of powers turns into the practice of separation of the powerless.
Hey, it’s a start. At least someone over at the Boston Globe gets it, and isn’t afraid to point it out.
What you are describing to me is a coup, one not yet complete, but in progress.
ReplyDeleteAccording to my old Webster dictionary, a coup is "a brilliant, sudden, and unu. highly successful stroke."
Though not yet "successful," as defined by Webster, with the negligent and complicit Congress and media our country finds itself with, the Administration is well on their way.
No it's not a coup.
ReplyDeleteDems will eventually hold the Presidency and enjoy these same police-state powers. On an organized basis, the Democratic Party is not only doing nothing to halt or even impede this power-grab -- -they are not even speaking about it in terms that capture its world-historical outrageousness.
Glenn asks, What else do[es the Adminstration] need to do in order to demonstrate their sincerity?
The answer of course is, that there is only one thing that would do: The official alteration of the Presidential Seal to the design of the Nazi swastika. Now of course this won't happen, because while the Admin wants all of the forms of facist power, they're naturally wary of its symbols.
The broad populace and mainstream media will never be convinced that this has become a police state until they see the symbols they expect. They're incapable of understanding the forms themselves. Therfore Americans will never recognize this for what it is.
An observation:
ReplyDeleteNotice the word "wartime" missing from the latest arguments? Apparently there's a lot of bad stuff in the world, and the president needs these powers permanently. Whoever said it had anything to do with war?
Witness this post from John Hinderaker at Powerline last night:
A civil war is a species of war. If it isn't a war, it can't be a civil war. A "war" exists when opposing armies take the field; such is not the case in Iraq. What is happening there is not a war, it is terrorism, pure and simple.
What the terrorists are doing in Iraq, they could do here. If terrorists started exploding IEDs along American highways, would we be experiencing a "civil war"? No. The fact that most of the terrorists in Iraq belong to a particular religious faction does not convert their terrorism into war.
Actually, I think this point is an important one. What makes the situation in Iraq difficult is not that a war is going on. There was a war, and we won it easily. The situation is difficult in Iraq precisely because it is not a war, civil or otherwise; it is terrorism, which is far less devastating than war, but much harder to bring to an end. If we can't outlast terrrorists in Iraq, what reason is there to think we can outlast them anywhere else, including here?
To admit there's a war is to admit that violence is continuing, even escalating. Accepting that reality would lead one to see the reality of a civil war. THAT is dangerously close to admitting failure and miscalculation on the part of the Commander. Can't have that. Any failure is on the part of those preventing the president from doing his job, hindering the War On - er, Struggle Against Terror.
Hmmm...hindering...Hinderaker...
Protecting America (meaning this administration) against an attack (mid-terms) gives ample justification, using their mindset, to spy on political opponents. Who's gonna know?
ReplyDeleteAnd now, coupled with the signing statement on the patriot act, the CIA and FBI, NSA, et al is their own private gestapo to "protect America."
So does that include the ability to cancel and or postpone elections at their whim?
ReplyDeleteSo does that include the ability to cancel and or postpone elections at their whim?
ReplyDeleteToo obvious. Besides, it's much more fun to sit in on strategy sessions (electronically) and formulate an offensive defense in advance. Audit donors and generally be a pain in the ass.
I wonder why there was so much handwringing by the Republicans and the administration on re-authorization of the Patriot Act. If Bush doesn't think he's bound by the law, wouldn't he do what he wanted anyway?
ReplyDeleteI wonder why Congress, even one as awful as this one, is blithely handing over its powers. Have they collectively decided that they're just in if for the money and not for public service?
-- Unstable Isotope
pwapvt: Don't be silly, they would only cancel an election in the most dire of scenarios ... like the prospect of genuine progressive becoming president, or something.
ReplyDeleteQuestion number (5) from the Committee Republicans asked "whether President Carter's signature on FISA in 1978, together with his signing statement," meant that the Executive had agreed to be bound by the restrictions placed by FISA on the President's powers to eavesdrop on Americans.
ReplyDeleteThis is how the DoJ responded, in relevant part:
The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power. . . .
Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.“ (citations omitted).
Glenn, this is Con Law 101. One president signing off on a statute may not waive the powers and responsibilities granted to the office.
The courts have reversed several statutes over the years where Congress attempted to delegate its constitutional powers to the executive.
Justice's attorneys would have to be incompetent to give any other answer to Congress' question.
So does that include the ability to cancel and or postpone elections at their whim?
ReplyDeleteNo need to do that when you control the voting machines, is there?
I say again that the key to checking such outrageous power-grabs by the executive is judicial review.
ReplyDeleteAnd I remember you saying Bush would cede to a judicial opinion unfavorable to his position.
Really? I see no evidence of Bush kneeling before anyone.
Hasn't his administration stated that congress, nor the judiciary can stop him?
The inability of Congress (and probably most Americans) to recognize that their freedoms have been usurped by authoritarians is a text book demonstration of the power of inertia as defined by Newtonian physics. "An object at rest will remain at rest..." How much force will be exercised on them before they move? Will it matter?
ReplyDeleteIt's not unreasonable for the DOJ to hold their ground on the President's inherent power.
ReplyDelete"checking such outrageous power-grabs"
That's true, imagine the chaos that would ensue if the other two branches were not acting as a check on Congress.
"Its just a God damn piece of paper"
ReplyDelete~~~Chimpanzee in Chief
BART - You should read the DoJ's response, since it negates the only two points that you make over and over and over and over again:
ReplyDelete(1) The DoJ says at least 5 times that the standard used to eavesdrop under the TSA is EXACTLY the same as the standard used under FISA - under both, the DoJ claims - probable cause is needed to believe that the target is a suspected terrorist (see e.g., Questions 3-4, 32 of the DoJ's reply to the Democrats).
Thus, every time you come here and say that the President had to eavesdrop outside of FISA because FISA's probable cause standard is too stringent, you are - as I and others have told you before - repeating rank falsehoods which even the Administration denies.
(2) The DoJ also expressly admitted - again - that it is the FIRST Administration ever since the 1978 enactment of FISA to order warrantless eavesdropping outside of FISA (Question 33).
If you want to defend the Administration's lawbreaking, you're going to have to find other talking points to spout.
Truly a moment of unfolding extremes. The DoJ answer exposes, again, the extreme arrogance of power unchecked. By doing so they have surely pinned the Congress down where their only way out now is to cower or come up swinging. Bush has left absolutely no room for negotiation.
ReplyDeleteI had to make a long 12 hour drive over the last 2 days, got bored so started to notice the Impeach Bush bumperstickers, then started to count them. I counted an amazing 45! And that's not including the Mercedes Benz with an Impeach Bush flag strapped to its top as it soared down the freeway. Wake up Congress!
More seriously -- great crimes demand even larger ones to maintain the criminality. After the 2000 stolen election, the folks behind this administration knew that they were "playing for keeps."
ReplyDeleteSure, most were not ready to accept that at the time -- but more are seeing this now.
The problem is not chimpy, cheney, rove, and the people IN FRONT of the curtain. Clearly, they are not competent enough to rig national election while directing the "mighty wurlizter" media that "catapults the propaganda."
If you think this is bad, hold on to your ass -- you ain't seen nothin' yet...
I am grateful for your rational, persuasive pieces, Glenn, very refreshing to see a more rational, openmined approach than the rest of the "circle of links" "advertise liberally" crowd.
These issues are not about brand loyalty, selling T-shirts, or rants about topics that many clearly have no expertise in.
I hope that as we reach 2006 and 2008 that more move towards your model, realizing that we don't have to agree on every issue to agree that it is time for change.
We also will never get anywhere as long as we promote ourselves as a "brand" that supercedes a rational debate and reasonable compromise.
This comment has been removed by a blog administrator.
ReplyDeleteGlenn:
ReplyDeleteI quoted that question and answer not to make the point that Carter's agreement estops Bush, but to highlight that in the DoJ's answer to that question lies a claim that EVEN IF Congress passed new laws AND President Bush agreed to their limitations, he would still retain the power to violate that law. In other words, not just Carter's agreement, but even Bush's agreement, to abide by laws would not take away Bush's power to break that same law that he explicitly agreed to be bound be.
To the extent the DeWine Bill calls for congressional oversight, it is legal and a redundant restatement of Congress' current constitutional powers.
To the extent that the DeWine Bill ratifies and gives congressional approval of the NSA Program it is also legal and a redundant restatement of the President's current constitutional powers.
However, to the extent that the DeWine Bill is interpreted to limit or eliminate the President's Article II powers to direct and conduct the NSA Program, the bill would be unconstitutional no matter whether the President signed it to enact the legal parts of the bill or for purely political reasons. Expect a signing statement from the President reserving his constitutional powers.
Even absent such a statement, Mr. Bush cannot waive the powers of the office. Even if he was a weak incompetent like James Earl Carter and intended to waive the office's constitutional powers to congress, Mr. Bush simply does not have that power.
The cliche that we are a country of laws and not of men applies to this situation. The Constitution is the supreme law of the land and mere President or Congress may change it by enacting and signing a statute.
Once again, the Founders role over in their graves,
ReplyDeleteThe accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny - James Madison
And what was one of the grievances they had with King GeorgeIII
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
I saw an article in the NYT and in a diary at Daily Kos that there's a candidate for NY AG, Sean Patrick Maloney, who is proposing to sue the federal government over the NSA program.
ReplyDeleteGlenn have you given the proposal any serious thought?
From what I understand the complaint was drafted not just by Maloney but two other intersting people: J. Paul Oetken who served as Associate Counsel to the President in the Clinton Administration and as an attorney-advisor at the Department of Justice Office of Legal Counsel.
James E. Ryan who is academic dean and professor of law at UVA, he also clerked for the Honorable J. Clifford Wallace, Chief Judge, United States Court of Appeals for the Ninth Circuit. and clerked for the Honorable William H. Rehnquist, Chief Justice of the United States.
Jonathan Turley is said to be a supporter as well. What are your thoughts about a state AG bringing a claim against the government?
Glenn Greenwald said...
ReplyDeleteBART - You should read the DoJ's response, since it negates the only two points that you make over and over and over and over again:
(1) The DoJ says at least 5 times that the standard used to eavesdrop under the TSA is EXACTLY the same as the standard used under FISA - under both, the DoJ claims - probable cause is needed to believe that the target is a suspected terrorist (see e.g., Questions 3-4, 32 of the DoJ's reply to the Democrats).
Not quite. Justice is attempting to lower the probable cause standard here based on the wording of a single case.
Let us read the actual question and answer:
3. Is the internal standard used to decide whether to monitor the communications of a person in the United States under the Program identical to the FlSA standard? In other words, before someone’s communications are targeted for interception, does someone determine that there is probable cause to believe the target is knowingly conspiring with a foreign terrorist?
[Answer:] The Terrorist Surveillance Program targets communications only where one party is outside the United States and where there are reasonable grounds to believe that at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to believe” standard is a “probable cause” standard of proof. See Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“We have stated . . . that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’”). FISA also employs a probable cause standard (specifically, whether there is “probable cause to believe” that the target of the surveillance is an agent of a foreign power). See 50 U.S.C. § 1805(a)(3).
Justice has come under justifiable attack for using what is essentially the "reasonable suspicion" standard for stopping a person short of arrest to start an investigation and then coflating that with the higher "probable cause" standard for arrest and searches because of some loose language in this single case.
Justice knows this. Note further how they are referring to the "reasonable grounds to believe standard" as a probable cause standard as if this was one of several probable cause standards, some stronger than others.
Thus, every time you come here and say that the President had to eavesdrop outside of FISA because FISA's probable cause standard is too stringent, you are - as I and others have told you before - repeating rank falsehoods which even the Administration denies.
You have to remember that Justice is not a neutral in this matter. They are the government's attorney whose duty is to defend the legality of government programs.
In contrast, I am a neutral observer, albeit with my own interpretation of the law. I have criticized Justice's arguments on this matter in the past.
With this in mind, Justice clearly laying the grounds for a secondary defense that the NSA Program actually meets the FISA standard.
Their position is weak, although it is arguable if the courts uphold "reasonable grounds to believe" as a probable cause standard. They have a much stronger argument that captured telephone numbers meet a reasonable suspicion standard than they do that it would meet a higher probable cause standard, which is essentially the same as more likely than not.
(2) The DoJ also expressly admitted - again - that it is the FIRST Administration ever since the 1978 enactment of FISA to order warrantless eavesdropping outside of FISA (Question 33).
To the extent that the WH has decided to inform Justice of any past programs.
In any case, this is irrelevant. The President may not waive the office's constitutional powers through non-use.
If you want to defend the Administration's lawbreaking, you're going to have to find other talking points to spout.
This is amusing. If the WH supports your position, exactly whose "talking points" am I using?
I give you the basic respect of assuming that you are speaking for yourself and not Senator Feingold's office. I would appreciate the same respect.
FWIW, U.S. District Judge John D. Bates has been named to the FISA court.
ReplyDeleteBates, a former Whitewater prosecutor, was appointed by Chief Justice John Roberts in February to replace U.S. District Judge James Robertson, who quit shortly after news reports about the Bush administration going around the court to eavesdrop on U.S. citizens suspected of communicating with terrorists.
The appointment was not announced by the court. Secrecy News reported the appointment Friday after it appeared in Bates' official online biography.
Rest here.
Glenn,
ReplyDeleteThanks for following this issue. I appreciate the expertise you bring to your writing about it.
To any intelligent commentator here:
ReplyDeleteCan someone please tell me how as a matter of practicality (NOT ideological or philosophical distinction) does the already-low standards put forth in FISA in any way shape or form impede Article II?
Glenn writes that "[t]he DoJ says at least 5 times that the standard used to eavesdrop under the TSA is EXACTLY the same as the standard used under FISA - under both, the DoJ claims - probable cause is needed to believe that the target is a suspected terrorist (see e.g., Questions 3-4, 32 of the DoJ's reply to the Democrats)."
ReplyDeleteFrom this, Glenn appears to assume that the Administration could have performed these wiretaps under FISA. This is mistaken. DOJ has hidden the ball here: the standard is not "exactly the same." Far from it.
Even if "probable cause" means the same *degree of proof* in both cases (which is dubious, given that they're going with a "reasonable grounds to believe" standard), the important question is: Probable cause that the intercept will uncover *what*, exactly?
Under FISA, a wiretap targeted at a U.S. person can be approved only on probable cause to believe that the *target* (i.e., the U.S. person whose phone is tapped) is an agent of a foreign power. But under the NSA program, *they could not make this showing,* because in most cases the U.S. person is *not* an agent of a foreign power. Under the NSA program, by contrast, all that is required is reason to believe that *one party to the conversation* -- not necessarily the targeted U.S. person -- is a member or agent of Al Qaeda or of an "affiliated terrorist organization." (Compare Answers 3 and 34 of the DOJ response to the Judiciary Dems.) This is the "softer trigger" that Hayden spoke of -- they try to obscure this in Response No. 34 -- and it means that they *could not use FISA* for these wiretaps.
the Congress continues to ignore it and pretend that it still retains power to restrict the Administration by the laws it passes.
ReplyDeleteI must disagree with that point, Glenn. I think the Republican majority Congress is quite happy with this state of affairs: A Republican President with unlimited power. Senators DeWine and Specter are just going through the motions to provide plausible deniability that they didn't simply hand over the keys to the kingdom, so they can report home that they "did their best".
And with corporate control of the media in place, the media is exactly following its corporate duty: to keep a business-friendly Administration in power. Their duty is the duty of any business: to optimize profits. And keeping this most pro-Big Business Administration works toward that end.
And the effort is nearly complete to injure the Judiciary branch, at least at the highest levels, is complicit in perpetuating the de facto establishment of absolute Executive control.
To imply that there is any "battle" taking place within the Federal government itself, barring such people as Fitzpatrick that actually believe in a Constitutional nation of law, is merely playing into the propaganda.
So, if I'm reading marty correctly, DOJ and the Bush Administration have effectively invented a completely *new* standard under which the NSA program we're discussing operates and targets individuals for surveillance?
ReplyDeleteIs this new standard actually authorized in existing US Statute, or even legally recognized?
Marty Ledermen:
ReplyDeleteIf the target of a conversation is the Al Qaeda related person and conversations of that suspected Al Qaeda person with a U.S. Person are intercepted, then isn't it true that the U.S. Person is NOT a "target" of the interception and therefore FISA doesn't apply to that intercept?
Asks the "Dog"
"We, free people of Belarus, will never recognise the election. They are afraid of us. Their power is based on lies." - Alexander Milinkevich, speaking to a crowd of 7,000 protesters taken to the streets of Minsk
ReplyDeleteHere in the country that has been the model of a free republic for over 200 years, we take our liberties for granted, and like fat uncles too lazy to put down the remote, put on a shirt, and get off the sofa, we simply stare at the television; the oversized, high-definition plasma screen; look at the clarity; look at the pretty colors; look at all those bloody body parts and charred corpses in Baghdad; look at Cheney telling us how cowardly, incompetent, dangerous, seditious, and just plain stupid the Democrats are...
Bush just told us that the Constitution provides him with plenary powers that trump the Constitution itself, make the Congress nothing more than an instrument of check writing for his corporate friends (don't bother writing any legislation that tries to restrict or even scrutinize his powers - he won't read it, nevermind sign it.)Look they've permanently renamed the illegal domestic surveillance by the NSA the Terrorist Surveillance Program or just The Program (what network is that on?...is it on after The Unit?)...
We watched, in 2000, as the SCOTUS usurped the electorate in deciding who would be the POTUS; we watched in abject horror the events of September 11, 2001, but didn't notice the overthrow of the U.S. Government by an organized cabal of neo-con, hegemonic political idealogues whose long-term labyrinthian schemes, the evil complexity of which we have yet to surmise, were lossed upon the world...we accepted the terms of a massive legislative document, without even reading it, called the Patriot Act (Orwellian to the max), assuming it was about time we gave up some of these freedoms in order to be safe...
As the television screens became larger and more focused, the media message became more and more oblique, obtuse, and obfuscated; a nagging feeling that getting off this couch and protesting something - things seem to be getting lost here - began to interfere with our comfort zone...
It is impossible not to admire the people of Belarus who will not tolerate the usurpation of their government by corrupt politicians. It is also impossible not to be ashamed of a complacent, complicit, lazy fat uncle of a citizenry who refuse to miss an episode of American Idol to take back the government of the United States, as it was conceived and declared and proscribed by the Constitution.
yankeependragon asks:So, if I'm reading marty correctly, DOJ and the Bush Administration have effectively invented a completely *new* standard under which the NSA program we're discussing operates and targets individuals for surveillance?
ReplyDeleteIs this new standard actually authorized in existing US Statute, or even legally recognized?
The way I read Marty, and based on Glenn's post re: the Dewine amendments here, the Admin fears that what it is doing is constitutionally infirm. Quite aside from Bush's lawlessness wrt FISA, they fear 4th Am snags resulting from their "lower standard." To quote Glenn's post:
In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:
"to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . ."
...
The second concern the Administration expressed with DeWine's amendment was that it was quite possibly unconstitutional:
"The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a 'reasonable suspicion' standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a 'reasonable suspicion' standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions."
So, if I'm assessing the situation correctly, The Adminstration decided to do secretly what it feared it could not do openly without entailing the risk of a court challenge they could lose. It is perverse to opt for secret, lawless spying under the rubric of "inherent authority" and posit that this cures all the infirmities of a proposed amendment to FISA, but that seems to be what they've done.
Leaving aside the underlying and uncontestable fact the Administration has engaged in extra-legal activity here (sorry Bart, but the President himself has publically admitted this), my question remains:
ReplyDeleteAre there any legally recognized standards involved in this program?
And before Bart or anyone fall back on the "inherent authority" argument, I will note that this was not and has not been the Administration's argument since day one. In fact, I don't recall a single member of the Administration even offering this argument. Can we please confine ourselves to established case law and leave the ideological disagreement to the professional blowhards?
I will further note that neither Bart nor any of his fellow contrarians responded to the direct questions on this issue I posed yesterday. If you can't actually answer the questions at hand, please just say so. At least this lets the rest of us know you treat these issues with more seriousness than Matthews, Limbaugh and company.
Bart, again I ask for comment.
ReplyDeletePosse Comitatus Act. Why did Bush say it prevented him from using the Armed Forces to help save lives in New Orleans? According to you, article one section eight clauses that enable Congress to regulate the Military and all other powers don't apply to CinC powers. In view of my opinion that you view article one too narrowly I must ask, why be restrained by Posse Comitatus if CinC powers trump all else?
I never took Con Law 101, but I thought that a law was assumed to be constitutional until the Supreme Court said otherwise.
ReplyDeleteAnonymous said...
ReplyDelete"I wonder why Congress, even one as awful as this one, is blithely handing over its powers. Have they collectively decided that they're just in if for the money and not for public service?"
Congress has been handing over, abdicating their powers for some time now. IE: Congress is tasked with regulating commerce yet they have abdicated that responsibility, turning it over to the WTO. An unelected body with a three judge panel that deliberates in secret, and hands down decisions on how we can trade.
With that established as a precedent why should any of their other responsibilties be treated any differently? Oh yeah, except of course the one where they give themselves automatic pay raises by not voting against them.
The Patriot Act signing statement says they will not disclose to Congress anything that "may impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties."
ReplyDeleteIsn't the "impair foreign relations" portion a new addition to the national security and executive deliberations elements?
It's not a rhetorical question, I think it is, but I'm not certain.
Leaving aside the underlying and uncontestable fact the Administration has engaged in extra-legal activity here (sorry Bart, but the President himself has publically admitted this)
ReplyDeleteCould you please be specific on this claim? I don't remember the President or Attorney General admitting they engage in extra-legal activity.
If the president persists in ignoring or breaking the law the only redress we have under the constitution, before the next scheduled election, is removal of the president through impeachment. This is the bottom line and the administration knows that the republican controlled congress will give them an enormous amount of leeway before they'd consider impeaching the president.
ReplyDeleteMARTY - I think the confusion comes from the fact that the Administration has said different things at different times about the differences - if any - between what it can do under the NSA program and what it can do under FISA.
ReplyDeleteOn Sept 10, 2002, the DoJ's David Kris (who probably didn't know about the NSA program at the time) testified before the Senate Judiciary Committee that they could not eavesdrop on anyone as of that date that they could not eavesdrop on a year earlier - meaning that they had no greater eavesdropping power as of 9/10/02 as compared to 9/10/01.
Sen. Schumer asked Gonzales when he was testifying in February whether that statement was false, given that they had, in the interim, created the NSA program which presumably gave them broader eavesdropping powers than they had under FISA.
But Gonzales - in his 2/28/06 letter to the Judiciary Committee (.pdf)(see top of page 3) -- said that Kris' statement was absolutely accurate, because the standards for eavesdropping under the NSA program are the same as they are under FISA.
Now, you are right that they are claiming they can eavesdrop on someone when there is no probable cause to believe that the U.S. person is an agent of a terrorist group (as long as the person outside the U.S. is). But (and this kills me to say), the Dog correctly pointed out that FISA does not apply when a target outside of the U.S. calls into the U.S. - they can monitor that call even under FISA without a warrant.
It is unclear how the NSA program differs from FISA because we only have the Administration's say-so about this and they have given conflicting accounts. But they clearly have said that the standards are the same - not just the probable cause standard, but also the scope of who they can eavesdrop on.
If you disagree, can you describe a conversation where: (a) the Administration would be able to eavesdrop under the NSA program and (b) FISA would prohibit eavesdropping? I realize that you did that in your last comment but it wasn't completely clear to me.
Thanks for not responding to our CUT AND PASTE troll.
ReplyDeleteWhen this troll started inserting these memes from other conservative blogs and webs a few weeks ago -- they at least had the appearance of being part of a dialog.
Now, they are obviously just attempts to derail discussion by bring in the wingnut talking points that have little to nothing to do with Glenn's posts or the discussion in the thread.
There is an endless amount of propaganda out there, being paid for by US citizens, that our resident troll uses to fill up his clipboard -- there is no dialog and his points don't need to be refuted -- THEY MAKE NO SENSE IN THE CONTEXT OF THE THREADS.
So please show yourself and everyone that stops by some respect -- DON'T RESPOND TO THE OFF-TOPIC TALKING POINTS THAT ARE BEING COPIED AND PASTED INTO THE THREADS.
The capacity of lawyers to believe that the law has any objective relevance is an endless source of wonder.
ReplyDeleteAs one who spent some time in Spain in the early 70s and later knew quite a few people who fled Chile after Pinochet's 9/11 coup (karma is a bitch), I can attest that while many people knew what was coming and took steps to leave before they were arrested, tortured and disappeared, lawyers were the ones who expressed shock, surprise and indignation all the way to their unmarked graves.
I strongly recommend reading this article:
THE JUDICIARY UNDER THE DICTATORSHIP if you'd like to see how even the best of laws can be made to serve a tyranny.
America will never be the same during our (my) lifetime, and that's why we left. (My wife's book, OVER HERE: AN AMERICAN EXPAT IN THE SOUTH OF FRANCE, is now on amazon )
georgeolo says:
ReplyDelete"In view of my opinion that you view article one too narrowly I must ask, why be restrained by Posse Comitatus if CinC powers trump all else?"
I'll let Bart speak for himself but I don't remember anyone except the anti-Bushers claiming there was unlimited CinC powers. I believe the argument is narrowed specificially to electronic surveillance of terrorists and the constitutional conflict between inherent powers and congressional law-making. I think claiming unlimited CinC powers is a straw man argument.
Everyone talks about "three more years" and the "next president". Who's to say that there will be a new president in 3 years? Can't the current president, using similar arguments of unfettered executive power, cancel the 2008 elections in the name of national security? Who will stop Dear Leader in 2008 when he announces that the election will be suspended, temporarily, due to dramatic threats of terrorism?
ReplyDeleteThe current administration is staffed by war criminals and felons, many of whom would surely be arrested and imprisoned if the Republicans were to lose power. How can they afford to allow themselves to be voted out?
Besides, in the view of our Unfettered Executive, anyone who does not vote Republican is a clear threat to national security and hence, there is no real reason for an election, since, from a national security standpoint, a Republican victory is the only acceptable result.
And don't mention the elephant in the room -- Haliburton's $350 million contract to build emergency detention camps in the mid-west.
I think the confusion comes from the fact that the Administration has said different things at different times...
ReplyDeleteLOL
Respectfully, that is the way propaganda works. We could apply that idea to EVERYTHING we have seen since the chimperor entered the 2000 race as a "800 pound" gorilla, destroying the ability of any other republican to raise any money. Clearly -- he was "someone's monkey."
The lying liars that stand in front of us and catapult the propaganda are not really causing the problem.
They will lie to us, change their stories, and use any other means of deception to prevent an honest national dialog that focuses the issues that underlie everything this administration does.
Great crimes require extraordinary means to enable the thievery to continue and allow the perpetrators to escape justice.
Looks like we may have our first test case - out of Albany, NY. A writ of mandamus has been filed with the 2nd Circuit.
ReplyDeletehttp://talkleft.com/new_archives/014380.html
The "unique competence" of the executive?
ReplyDeleteOy....
Can't the current president, using similar arguments of unfettered executive power, cancel the 2008
ReplyDeleteIf they can steal the 2000 election, "stand down" the government to enable 9/11, exploit those fears to destroy our Constitution & Bill of Rights, take the country into a war of conquest based on lies, participate in the "enron style" of theft of BILLIONS AND BILLIONS of dollars from both the public and private sector, proclaim their is no Social Secutiry Trust fund, sign into law bills that were not passed by BOTH house and senate, spy on Americans without following FISA, issues "signing statements" to signal that they will not follow laws...
You get my drift....
Yes, they could pull install the chimperor in chief for life too! And then, they would call anyone that questions it unpatrotic.
Link for all signing statements:
ReplyDeletehttp://www.gpoaccess.gov/wcomp/search.html
Type "signing statements" into the search box.
Marty Lederman said...
ReplyDeleteThe fact that Carter signed FISA does not mean that a future President is estopped from concluding that the statute is unconstitutional.
Ok can someone explain to a non lawyer how the President - ANY President - can "conclude", on his own, that a law (FISA if you like) is unconstitutional???? Regardless of which predecessor signed it into law?? Is the current Executive not bound by law at all then? I mean isn't this the very issue?? Doesn't this speak to the very heart of the separation of powers issue??
I was always taught that the Executive branch does not have the power to conclude, determine, judge or otherwise deem a law unconstitutional. Is this not the job of the Judiciary?? WTF??
If BushCo thinks the law is unconstitutional then shouldn't he and his minions be bringing it to the courts to question said law's constitutional validity??
It seems to me this speaks directly to the insanity of the whole thing. King George has claimed unlimited powers. He writes the law with his signing statements then looks at his own version of the law and deems it constitutionally worthy then executes his unchecked power as he sees fit!
What we have here folks is not an Executive in the traditional and lawful and balanced American system of government. What we have here is a DICTATOR.
The reason why the admin can't comply with FISA is obvious. What they are doing starts with a dragnet. They are tapping into the main trunk lines of the major carriers. It starts with a computer screening, most likely looking for key words, and is progressively narrowed down by computer artifical intelligence until it is turned over to a live agent for further evaluation.
ReplyDeleteUnder that scenario there can be no probable cause since they start out by screening everything.
Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends
By LOWELL BERGMAN, ERIC LICHTBLAU, SCOTT SHANE and DON VAN NATTA Jr.
"In other cases, lists of phone numbers appeared to result from the agency's computerized scanning of communications coming in and out of the country for names and keywords that might be of interest."
One theory that accounts for the arrogance of this administration is that they realize that they are already guilty of so much criminal activity that they have no choice but to behave in an imperial fashion. If they concede anything to Congress, a big can of worms could be opened, and there could be a tribunal featuring some of our high officials in orange jumpsuits someday.
ReplyDeleteYeah, Glenn, you're right. This is a declaration of total rule.
ReplyDeleteI have always thought that the founding fathers would have wanted us to rise up and do just that if we found ourselves in that predicament.
ReplyDeleteGuess you just stated the reason for the NSA scandal in the first place -- that's why chimpy and his gang of thieves are so shrill.
They are trying to create the meme that PATRIOTISM = FACISM
Glenn:
ReplyDeleteHa. You probably don't think the President has the unique, inherent authority to nationalize the steel mills in wartime, either.
Funny how most of my life, I was indoctrinated (in school and the media) that COMMUNISM was bad. In general, if we define communism as a central government controlling all aspects of people's lives, I agree that it is bad.
ReplyDeleteChimpy and gang are trying to convince us that a federal government controlling all aspects of people's lives for the profit of the military-industrial complex and a small group of wealthy elite (hint: most are also investors in "war machine)is good, in fact, somehow "patriotic"
Niether of these "models" have any input for the "will of the people," and all require a mighty wurlitzer MSM to "catapult the propaganda." Both of these models destroy free, open, and verifiable elections.
Is the only difference between chimpy and the "bad guys" from the cold war WHO OWNS THE WAR MACHINE?
In Russia, it was that governement and elite "insiders" enriched themselves.
In chimpy's America, it is the bush family, cheney, and a group of insiders that own the military-industrial complex. Remember, oil is a subset of the war machine.
It is really that simple -- the only difference between chimpy's policies and the "evil empire" is who owns the military-industrial complex.
it seems to me that NSA is conducting surveillance that never could qualify for such warrants.
ReplyDeleteThanks for putting this back in simple, direct terms. OF COURSE THEY ARE TRYING TO USE NSA TO CONDUCT SURVEILLANCE THAT WAS NOT LEGAL!!!!!!!!
That is what this is all about -- like "chimpy and gang" would create this distraction if they could just manipulate the status quo....
They would prefer to distract us with things like the Social Security Bamboozle Tour, but found that they could maintain the crimes they started in 2000 without breaking FISA.
http://en.wikipedia.org/wiki/Enabling_Act
ReplyDeleteThe Enabling Act (Ermächtigungsgesetz in German) was passed by Germany's parliament (the Reichstag) on March 23, 1933. It was the second major step after the Reichstag Fire Decree through which the Nazis obtained dictatorial powers using largely legal means. The Act enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag.
The formal name of the Enabling Act was Gesetz zur Behebung der Not von Volk und Reich ("Law to Remedy the Distress of the People and the Reich").
Key passages (from Wikipedia translation):
"In addition to the procedure prescribed by the constitution, laws of the Reich may also be enacted by the government of the Reich."
"Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain undisturbed."
Let's call the proposed Repub duck and cover-up "law" The Enabling Act.
Glenn asks me to describe a conversation where: (a) the Administration would be able to eavesdrop under the NSA program and (b) FISA would prohibit eavesdropping.
ReplyDeleteSimple: They put a tap on my phone, and record those conversations in which they conclude that I'm talking to an agent of an organization affiliated with Al Qaeda. (NOTE TO NSA: I don't have any such conversations. Just sayin'.) In this case, under FISA I am the "target" of the wiretap -- it's my phone that's being tapped. And I'm not an agent of a foreign power.
Indeed, this is exactly the scenario that led to the FISA standard. The government was tapping the Jewish Defense League, not because it thought the JDL was an agent of Israel, but because it thought the tap would pick up valuable information about Israel in calls to and from Israel. The DC Circuit held that this was *unconstitutional.* See Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975) (en banc) (plurality opinion) ("[W]e hold today... that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for protection of the national security."); id. at 689 (Wilkey, J., concurring in pertinent part) (agreeing with plurality that if exemption from warrant requirement exists, "it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power").
In order to avoid the constitutional problem identified in Zweibon, Congress required that if a U.S. person's phone is tapped, that person must be an agent of a foreign entity.
The NSA program eliminates that requirement, thereby violating FISA and, if Zweibon is correct, the Fourth Amendment, too.
In his letter, Gonzales attempts to elide this distinction by suggesting that the overseas Al Qaeda agent is the "target" of the tap, even if the tap is on my phone. I'm not a FISA expert, but I think this is a complete (and intentional) misreading of FISA -- it recreates the Zweibon scenario that FISA was intended to prevent.
glenn,
ReplyDeletenot to prejudice my comment - #214/5 - to your previous posting, TP have news of an appointment replacing Robertson to the FISA court (did "Hypatia" also mention this here) which I did not know about until now.
I wonder tho whether Dean knew about this appointment in making remarks on Sen. Specter.?
To me the move signals some kind of fallback position.. of which we should be aware.. yes?
keep up the good work.
Glenn said: But Gonzales - in his 2/28/06 letter to the Judiciary Committee (.pdf)(see top of page 3) -- said that Kris' statement was absolutely accurate, because the standards for eavesdropping under the NSA program are the same as they are under FISA.
ReplyDeleteI really don't think Gonzales' letter says that.
I read the letter several times and it seems to me to be saying exactly that. It is defending Kris' statement as accurate, and Kris' statement was that they had no greater ability to eavsdrop in September 2002 than they did on September 10, 2001 - the only way that could be the case is if the NSA program did not allow any greater eavesdropping the FISA.
If you disagree with that, can you provide a little more analysis than just "I really don't think Gonzales' letter says that."
It seems that Glenn wants to prove the FISA standards are being applied by the administration -- sans involvement by the FISA court -- or at least that Gonzales says so. I think the record does not establish that; at most it shows Gonzales dissembling.
Why would I have an interest in proving that FISA standards are being applied by the Administration. I have no such interest, and that isn't my intent at all.
I am just pointing out to Bush supporters like Bart -- who claim that they had to eavesdrop outside of FISA because FISA's evidentiary standards are too strenuous -- that, according to the Administration, they are using the same standards under the NSA program as FISA mandates, and that they have no greater eavesdropping powers - the only difference is WHO approves the eavesdropping, not the scope of the eavesdropping.
Either (a) the Administration is lying about this or (b) they're telling the truth which means that the justification given by Bush supporters is false. That is the only point I'm making.
You seem to think that (a) is true. So do I. But the Administration IS claiming that the standards are the same, which is my only point.
Sort of like how it's hard to think of things that Congress can't regulate under the commerce clause, it's difficult to think of things the President can't do in a time of "war" if his interpretation of the Constitution stands. Is he allowed to personally execute people as long as he calls them a traitor before or afterwards? I'm guessing yes, if he felt like it. We have ourselves a dictator.
ReplyDeleteThe following is an excerpt from Clancy Sigal
ReplyDeleteon
counterpunch
First, the American news item:
The federal government has awarded a $385 million contract for the construction of 'temporary detention facilities' inside the United States as part of the Immigration Service's Detention and Removal Program. The contract was given to Kellogg, Root & Brown, a subsidiary of Halliburton. The camps would be used in the event of an "emergency", said Jamie Zuieback, an Immigration service official.
The following article appeared in a Munich newspaper in 1933 to mark the "grand opening" of Dachau, Germany's first concentration camp. This month marks the 73d anniversary:
Münchner Neueste Nachrichten,
Tuesday, March 21, 1933
A Concentration Camp for Political Prisoners in the Dachau Area
In a statement to the press, Himmler, Munich's Chief of Police announced:
On Wednesday the first concentration camp will be opened near Dachau. It has a capacity of 5000 people. Here, all communist and-so far as is necessary- Reichsbanner and Marxist officials, who endanger the security of the state, will be assembled.
Dems will eventually hold the Presidency and enjoy these same police-state powers.
ReplyDeleteYou're assuming that the rules stay the same no matter who's in office. The entire argument here is that there is no rule of law. The rules are whatever you want them to be at the moment. Republican Senators would change their tune instantly if Hillary were to become president, and I wouldn't rely on Alito and Roberts to hold to their "unitary executive" idealogy if a liberal Democrat takes office. None of them would consider this hypocrisy because the law in their eyes is a means to an end not an end in itself.
Can't the current president, using similar arguments of unfettered executive power, cancel the 2008 elections in the name of national security? - Franklin
ReplyDeleteI believe that the Administration could construe itself that power, but I doubt this politically-savvy crowd would do so - that would be raising the temperature fast enough that the frog might realize it is being boiled.
No need in any case - given the impetus of the 24-hour news cycle to play to the national id, and the Republicans control-through-fear drumbeat (the definitive id appeal), voter marginalization will continue to allow Diebold to give the GOP the edge.
Actually, presidents might decide that laws are unconstitutional and should not be enforced.
ReplyDeleteNot the issue here, we are talking about proclaiming that the administration does not need to follow a law regardless and then actively breaking the law.
And then the administration proclaims that it does not actually follow any new laws either - that the other branches of government are irrelevant.
What this whole illegal and unConstitutional (coup) mess is proving to me is that we need a basic reshuffle of the government via the Constitution. One thing that is needed is to take the DOJ from the Executive branch. It should belong to the Judicial. The Exec should ONLY have the military under its command.
ReplyDeleteThe judicial, especially given the radical winger threats against it since Bushie was appointed, needs a stick with which to keep both the other branches in check.
If not the judicial branch getting control of the DOJ, then it should be setup as a separate branch of government. In any case, it needs to be divorced and independent of the Executive (and the Legislative).
Oh, and a new Amendment needs to be offered. It must clearly and unequivocally state that the President is bound by the Constitution and Bill of Rights. It must be made inarguable that the President can ignore laws or do anything s/he feels necessary "to protect the nation." Uh-uh. A President is NOT protecting the nation (or upholding the Constitution) by violating ANY basic civil rights for ANY reason. The 4th Amendment doesn't have an escape clause in it. I want it made absolutely clear that NO President gets to violate ANY Amendment EVER.
Could he claim that the Congress lacks the authority to limit his powers, including impeachmet, under the claim that whatever abuses he was being impeached for fell under his predefined constitutional authority?
ReplyDeleteWouldn't that be an interesting situation....
A president that was appointed by tbe supreme court in a corrupt election where he lost the popular vote and stole the election in FL and used non-verifiable voting machines to claim majority support that exit polls demonstrate he did not win, then claims that because of "presidential power" (that he never actually won) he is no longer accountable to constitutional oversite...
WOW, you couldn't have made this up...
Two naive questions:
ReplyDeleteWho's behind it? Clearly not that cyclist Bush. Cheney appears preoccupied with shooting people and making hay for Halliburton while he still can. So if not those two than who? Ideological cadres of DoJ? Whoever it is (they are?) I'm impressed. Discreetly effective.
Quuestion 2, How does that "faithfully execute the laws" verbiage of constitutional oaths fit into all this?
I was always taught that the Executive branch does not have the power to conclude, determine, judge or otherwise deem a law unconstitutional. Is this not the job of the Judiciary?? WTF??
ReplyDeleteUntil Chief Justice Marshall decided in Marbury v. Madison (1803) that the Supreme Court is the supreme arbiter of whether a law is unconstitutional or not, all three brances of the government theoretically had equal power to decide this question. By the time of Marbury it had become obvious that this tri-partite system was unworkable, so Marshall grabbed the power for the Supreme Court, but he had to do so on the basis of very vague "inherent" powers that are to be found nowhere in the actual text of the Constitution.
Today's Federalist Society believes quite strongly that Marbury was wrongly decided and that the last 200 years of Constitutional theory have supported a system of final judicial review that was illegal from the start.
Bush's decision that he as President has the power to decide what's Constitutional is merely the culmination of the Federalist Society's wet-dream. Sadly, Bush has also seeded the federal judiciary with hundreds of Federalist Society members (including Chief Justice John Roberts), so the wet-dream is about to become a reality.
Guess we really just need to be grateful that we can still choose between 2 different versions of colored corn-sweetener water, COKE or PEPSI
ReplyDeleteUnless people demand the chimperor's removal from office, looks like the rest of our "democracy" is almost as good as gone.
Much is made here of the Carter FISA signing statement of 1978 but that is misleading because Bush43 post 9-11 asked Congress to modify the FISA law and worked with Congress for a very long time (something like 18 mos) to enact changes the Bush43 Administration could accept. You may recall former S. Daschle's statements--after the NSA Warrantless spy program became known--about negotiating with the WH on FISA where he recalls Congress balked at only one thing Bush43 requested and that was 'the unlimited ability to spy on anyone, anywhere and at anytime the Executive Branch decreed was necessary based on National Security concerns.
ReplyDeleteThen Congress passed the new FISA legislation and Bush43 signed it in 2003.
Thus, imo, the FISA law he is breaking is in part one of his own creation and one he agreed to abide by and uphold when he signed it.
The excuse that he is doing all this to protect the country should sound familiar to anyone old enough to have lived through Nixon's Watergate spying scandal.
Bush43 has no legal excuse for doing what he has authorized NSA to do.
He knows he is wrong or he would not have lied multiple times in public speeches to the Electorate that the Administration had warrants for wiretaps. He knew they didn't, he lied to cover up his authorization of illegal acts and to cloak his Administration under the protection of the US Constitution.
There is no question he and all his enablers should be removed from office and tried for crimes against the American people.
I'm wondering how long these incisive free-speech discussions will be permitted to continue.
ReplyDeleteI'm wondering how long these incisive free-speech discussions will be permitted to continue.
ReplyDeleteDoes anyone else get PORTSCAN intrusion attempts from DoD IP addresses?
Have they started "watching" us?
And second, since, at this point, neither censure nor impeachment stands any chance of actually passing, because the GOP controls congress, the only thing we could hope to accomplish with either remedy is to raise public awareness of Bush's lawbreaking, force the administration to devote its resources to fighting off this charge, and embarrass the GOP as the elections near.
ReplyDeleteThere is no doubt that Bush deserves to be impeached. Clearly, he knew he was lying about FISA warrants and the lead up to the Iraq war. It was interesting for a man who put Saddam and 9/11 in sentences a gazillion times, to slip up and say how “very careful” he was never to say Saddam was behind 9/11. He’s not as stupid as he appears. He knew exactly what he was doing, and he was coached relentlessly.
However, although he deserves to be impeached, I have to agree with Armando.
First, as you say, we don’t have the votes anyway. And secondly, I think it censure will be much more effective in “raising public awareness” simply because it isn’t so severe the discussion will be on the issues. With impeachment, the GOP will turn the discussion to the “act” of impeachment rather than the issues. (They’ll try that with censure too, but it won’t be so effective.)
Unfortunately, the public isn’t ready for the discussion of impeachment yet, but censure is gaining ground fast, that’s why Cheney is so aggressive on this subject. It’s a bluff.
As Armando points out, impeachment is ultimately a “political” question. I think that quote from Barney Frank is right on the mark:
"Impeachment is an outlet for anger and frustration, which I share, but politics ain't therapy . . . Bush would much rather debate impeachment than the disastrous war in Iraq."
I want to talk about the “reasons” Bush should be impeached rather than the “act” of impeachment itself. Once the public “gets it” then it will be time for impeachment.
In the meantime, I’m pleased that Lapham, Keillor and others are talking about it the way they are, but that does not mean that we need to pursue it as an active policy. Let’s keep talking about the law-breaking, keeping impeachment in the background, and if the election changes the composition of the Congress, then it will be the time for talk of impeachment.
First things first.
Now we're getting down to the nitty gritty in these comments, thanks especially to those of Glenn, Marty Lederman, JaO, gris lobo, and even the 'Dog' above.
ReplyDeleteI'd like to try to recap the key points made above, to clarify the lay of the land:
If I'm not mistaken, the military has jurisdiction OUTSIDE the borders of the United States only. Inside our borders, the FBI/DOJ has jurisdiction on matters of electronic surveillance and law enforcement, including those that may have to do with "foreign intelligence" (the DOJ's Attorney General prepares applications for FISA Court warrants).
The Executive Branch, on its own say-so alone, is now using the military (the NSA is a part of the Department of Defense) to spy on Americans INSIDE our borders for alleged purposes of "foreign intelligence" in defiance of federal law (FISA) and in defiance of the protections of the Fourth Amendment to the Constitution. [As far as I'm concerned the Fourth Amendment to our Constitution trumps ANY alleged "inherent Article II authority" of the Commander in Chief of the Armed Forces in our Constitution. An enumerated right of the people in the Constitution trumps an unenumerated alleged power of the President in the Constitution, period.]
The Executive Branch has chosen to bypass a mechanism which was specifically set up by Congress in 1978 to accommodate the need for electronic surveillance INSIDE our borders in pursuit of "foreign intelligence." [I think JaO and gris lobo have the reasons for this pretty well pegged above: massive U.S. dragnets of data being filtered by computer programs, a process which is being knowingly MISREPRESENTED by disingenuous legal assumptions and statements by Attorney General Gonzales.]
This bypassed mechanism is FISA and its secret court. FISA, as Marty Lederman points out, was created as a result of concerns about abuses of Executive Branch surveillance power in the early seventies (abuses which were infringing on the Fourth Amendment rights of Americans), and was especially informed and driven by the Zweibon v. Mitchell domestic spying DC Circuit opinion in 1975.
FISA's jurisdiction is electronic surveillance INSIDE our borders only, and therefore its jurisdiction STOPS at our borders. That is because FISA is attempting to legislate the protections of the Fourth Amendment in the area of domestic electronic surveillance for foreign intelligence (as well as searches), and the Fourth Amendment protections stop at our borders. Therefore, as JaO clarifies, intercepts made by the military OUTSIDE our borders while targeting subjects overseas, may legally monitor communications to and from the U.S. which cross our borders and involve U.S. persons on U.S. soil, IF, and only if, those U.S. persons are not the targets of the surveillance AND if the intercepts by the military occur OUTSIDE our borders.
Yet, as pointed out above, both the New York Times and the Washington Post have reported or inferred that the intercepts of cross-border communications by the NSA surveillance program have occurred INSIDE our borders, and therefore absolutely fall under the jurisdiction of FISA, and of its procedures.
FISA is a very good faith, well-written, thoughtful effort to preserve the protections of the Fourth Amendment to the Constitution, while simultaneously safeguarding necessary domestic surveillance by the Executive Branch in pursuit of foreign intelligence. And in my opinion, FISA gives a real advantage to the Executive Branch in its pursuit of foreign intelligence which DID NOT EXIST before FISA: The secret FISA court. The Fourth Amendment doesn't specify that warrants to search or spy on Americans may be issued in secret. FISA allows this, in recognition of the modern realities of communications, and to ENSURE that WARRANTS ARE OBTAINED in accordance with the Fourth Amendment's clearly worded protections of the rights of Americans in America.
To take the extraordinary LEGAL power of a secret court issuing secret warrants to spy on or search Americans in America, and then toss aside NOT the secret spying or searching it permits, but ONLY the CRITICAL oversight and check of a supervising Judicial Branch secret court, which is FUNDAMENTAL to FISA, is a breathtaking abuse of power. And to then EXPAND the secret spying on Americans by the military beyond even the parameters permitted in secret by FISA, is basically to turn the military on the American people themselves. I sincerely doubt that any Congress would have created a secret method of spying on Americans in America WITHOUT very close oversight and involvement by either the Judicial Branch or the Legislative Branch. So such a practice ABSOLUTELY and unquestionably violates our right to privacy under the Fourth Amendment as Americans, and completely subverts the idea of America as a constitutional democracy.
"Anything to defend the country" is so mind bendingly vague, how could any civilized country said to be ruled by such a blandishment? Who determines what that even means or what the scope of that even is? And who really thinks that Bush knows defending the country from a hole in the ground?
ReplyDeleteAnd who really thinks that Bush knows defending the country from a hole in the ground?
ReplyDeleteWell, guess chimpy's TANG service record should tell us something.
let's see.....
He went AWOL...
Would rather snort coke and party....
hhhhhhhhhhhhhhmmmmmmmmmmmmmmmmmmmmmm
An enumerated right of the people in the Constitution trumps an unenumerated alleged power of the President in the Constitution, period.
ReplyDeleteI'm wondering how hard it would be to write a script that would automatically follow any post by Bart with one containing this statement. Probably not that hard. Probably wouldn't work with Blogger though.
I believe the same point was made in a previous comments thread last night when the false comparison between the Rather dust-up and Ben D's plagiarism. One would think those who are so quick to celebrate and deify 'character' would be at least mildly disturbed by this issue.
ReplyDeleteBut then, as I said last night, that would entail they actually hold standards.
Re: Ben D.
ReplyDeleteAtrios contacted P.J. O'Roarke who said he never heard of Ben nor gave him any permission.
It's possible Glenn should focus on whether certain people who form Bush's most loyal, vocal, dangerous supporters are merely insane, and that is what explains their behaviour.
Even when any sane person would have known the jig was up and that he was under a microscope and his alibi would be checked by thousands of people, he continued to lie and told a whopper that anyone sane would have known would be proven false within hours.
That's not a mark of "cultism". That's a mark of insanity.
I truly believe it's possible that the RedState and Frontpagemag. and Instapundit and the NRO crowd are all insane.
It's the rest of the Republicans who still support Bush who are more curious.
To check out this premise, go to antiwar.com and read Pat Buchanan's new article on neo-cons, in which he talks about a recent article Fred Barnes wrote in the Weekly Standard.
Could anyone read that and not realize Barnes is insane? In short, he suggests Bush fire everyone, everyone (forgetting that the Vice-President is elected by the public, and cannot be fired), and appoint Condi Rice Vice-President and then annoint her as the next President.
One more opening on the SC and they would probably authorize doing away with the next Election.
Wartime, don't cha know.
BTW, I wrote a long post at the tail end of yesterday's comments trying to get across a certain point, in case anyone cares what I think.
ReplyDeleteAfter that, I found this new article by PCR. I am going to post it here, but then not post my usual blathering any more today, so I ask your indulgence in taking up bandwidth, but I cannot think of a single thing written thus far which better sums up what has happened to America.
In it's own way, it addresses the same theme that Glenn's post yesterday did about "most Bush supporters" but points out, as I was trying to tell Glenn, that it goes way beyond "most Bush supporters." It's most Americans. That's the real problem. Thank you for letting me post this whole article. I strongly urge that everyone read every word, which is why I am not just posting the link.
What’s Become of Americans?
by Paul Craig Roberts
Imagine knocking on America’s door and being told, "Americans don’t live here any longer. They have gone away."
But isn’t that what we are hearing, that Americans have gone away? Alan Shore told us so on ABC’s Boston Legal on March 14:
"When the weapons of mass destruction thing turned out not to be true, I expected the American people to rise up. They didn't.
Then, when the Abu Ghraib torture thing surfaced and it was revealed that our government participated in rendition, a practice where we kidnap people and turn them over to régimes who specialize in torture, I was sure then the American people would be heard from. We stood mute.
Then came the news that we jailed thousands of so-called terrorist suspects, locked them up without the right to a trial or even the right to confront their accusers. Certainly, we would never stand for that. We did.
And now, it's been discovered the executive branch has been conducting massive, illegal, domestic surveillance on its own citizens. You and me. And I at least consoled myself that finally, finally the American people will have had enough. Evidently, we haven't."
In fact, if the people of this country have spoken, the message is we're okay with it all. Torture, warrantless search and seizure, illegal wiretappings, prison without a fair trial or any trial, war on false pretenses. We, as a citizenry, are apparently not offended.
There are no demonstrations on college campuses. In fact, there's no clear indication that young people even seem to notice. . . .
The Secret Service can now declare free speech zones to contain, control and, in effect, criminalize protest. Stop for a second and try to fathom that. At a presidential rally, parade or appearance, if you have on a supportive t-shirt, you can be there. If you’re wearing or carrying something in protest, you can be removed.
This! In the United States of America.
Readers tell me that Americans don’t live here any more. They ask what responsible American citizenry would put up with the trashing of the Bill of Rights and the separation of powers, with wars based on deception, and with pathological liars in control of their government? One reader recently wrote that he believes that "no element of the U.S. government has been left untainted" by the lies and manipulations that have driven away accountability. So-called leaders, he wrote, "talk a great story of American pride and patriotism," but in their hands patriotism is merely a device for "cynical manipulation and fraud."
The Bush regime acknowledges that 30,000 Iraqi civilians, largely women and children, have been killed as a result of Bush’s invasion. Others who have looked at civilian casualties with greater attention have come up with numbers three to six times as large. The Johns Hopkins study accounted for 98,000 civilian deaths. Andrew Cockburn, using more sophisticated statistical analysis, concluded that 180,000 Iraqis died as a result of Bush’s invasion. The former prime minister Iyad Allawi says that Iraqi sectarian violence alone is claiming 50–60 deaths per day, or 18,000–22,000 annually, a figure that could quickly worsen.
Some were killed by “smart bombs” that weren’t very smart and dropped on hospitals, schools, and weddings. Others were mistaken for resistance fighters and killed. Still others were killed by spooked, trigger-happy U.S. troops. And many died due to the breakdown of the Iraqi health system.
Now comes a report in the online edition of Time magazine that U.S. Marines went on a rampage in the village of Haditha and deliberately slaughtered 15 unarmed Iraqis in their homes. The Iraqis were still in their bed clothes, and 10 of the 15 were women and children.
The Marines turned in a false report that the civilians were killed by an insurgent bomb. But the evidence of wanton carnage was too powerful. Pressed by Time’s collection of evidence, U.S. military officials in Baghdad opened an investigation. Time reports that "according to military officials, the inquiry acknowledged that, contrary to the military’s initial report, the 15 civilians killed on Nov. 19 died at the hands of the Marines, not the insurgents. The military announced last week that the matter has been handed over to the Naval Criminal Investigative Service, which will conduct a criminal investigation."
If this story is true, under Donald Rumsfeld and George Bush’s leadership, proud and honorable U.S. Marines have degenerated into the Waffen SS. Those of us raised on John Wayne war movies find this very hard to take.
A fish rots from the head. Clearly, deception in the Oval Office is corrupting the U.S. military. One reader reported that on March 19 his local PBS station aired a program which discussed the deaths of two young American soldiers in friendly fire incidents similar to Pat Tillman’s death. In each case, he reports, "elements within the military falsified reports and attempted to shift blame to either enemy combatants or allied (Polish) forces."
The neocons have yet to tell us the real reason for their assault on Iraq, which has so far produced 20,000 dead, maimed, and wounded U.S. soldiers, between 30,000 and 180,000 (and rising) dead Iraqis, and demoralized U.S. Marines to the point that they commit atrocities on women and children.
Would real Americans accept these blows for the sake of an undeclared agenda? Perhaps it is true that Americans don’t live here any longer.
This is what I have been trying to say all along. The Death of Outrage has finally poisoned us all.
Eyes wide open, I am as enthusiastic as you about Paul Craig Roberts' powerful and intelligent dissections of the ills presently eating away America from the inside...but...my concern about your posting columns by him in their entirety has to do not with your taking up bandwidth or adding that much more to the comments section for people to read, but with propriety. This material is Roberts' intellectual property, and no doubt copyrighted by him. It may be that he is not making money off the columns he posts to the internet, (I usually read his stuff over at COUNTERPUNCH, but it can be found elsewhere). Certainly, once on the web, it can and will be cut, pasted and circulated at will, and Roberts may even countenance this.
ReplyDeleteNontheless, it seems to me more proper to post a link to the site where one may find Roberts' columns in their original context. (You expressed doubt recently as to whether people click on links to read hyperlinked material, and, of course the answer is, those who are interested in it will.)
If your enthusiasm for exposing as many people as possible to Roberts' work compels you to act as an "advance agent" for him, so to speak, perhaps you could post the title and first paragraph of one of his columns, then give the link (or URL) where interested readers can satisfy their whetted appetites for more of Roberts' incisive commentary.
But, don't mistake my comments here as a negative reaction, but more as an encouraging advisory; as I said, I am quite an enthusiast of his writings myself.
Cheers!
Senate Judiciary will hold hearings next Friday on censure.
ReplyDeleteMeanwhile, it's going beyond insane. You can't talk to your doctor or lawyer anymore:
DOJ: NSA Could've Monitored Lawyers' Calls By KATHERINE SHRADER, Associated Press Writer
Sat Mar 25, 10:19 AM ET
WASHINGTON - The National Security Agency could have legally monitored ordinarily confidential communications between doctors and patients or attorneys and their clients, the Justice Department said Friday of its controversial warrantless surveillance program.
Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court.
"Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening.
To Bart (provided he's still listenting) -
ReplyDeleteSo, knowing this, are do you still offer your otherwise unquestioning support to this program?
I as your being a defense attorney would, after all, make you as much a target as your potential clients.
The rogue element who has taken over our government and its enablers (see: almost everyone) is a dog with rabies in its early death throes.
ReplyDeleteThat's when rabid dogs are the most dangerous.
The same Fred Barnes whose new book is reviewed today in the NY Times Book Review section listing as the "good guys" Cheney, Rumsfeld, Rice, Paul Bremer, Tony Blair, and Brit Hume and presidential speechwriter Michael Gerson now writes an article, well in the words of Pat Buchanan in an article called "Are the neocons going crazy?":
"Barnes calls on Bush to fire press secretary Scott McClellan, chief of staff Andy Card, political adviser Karl Rove, National Security Adviser Stephen Hadley, Defense Secretary Donald Rumsfeld, Treasury Secretary John Snow – and Vice President Richard Cheney.
"The trickiest issue is how to handle Karl Rove," says Barnes....
Barnes urges Bush to appoint Condi vice president and "anoint" her as "presidential successor."
Who would replace Condi at State? Pro-war liberal Joe Lieberman.
Is there no provision in the Constitution for what to do if the Executive, the Congress, and the Judiciary all become insane at the same time and start acting like madmen?
Wait just a big moment. In the review of Barnes' new Book "Rebel-in-Chief" in which Barnes states "forget all the carping from liberal, pollsters and spineless conservatives: the party is doing just great, thanks almost solely to the visionary leadership of George W. Bush who deserves comparisons with Harry Truman, Ronald Reagan and both Roosevelts", the article says, writing about the other book covered in the review "Take it Back" by Carville and Begala that there is 'delightful chapter called "The Meeting" which alone is worth the price of the book' about "the candidate" and the "candidate's college roommate."
ReplyDeleteWhat "candidate"? Does he mean Clinton? And who is "the candidate's college roommate?"
I ask for an important reason. Can a researcher on this site help me out here?
Thank you.
I'm not going to say that you and Armando are wrong here, as this is clearly a judgement call, but I still disagree.
ReplyDeleteWell, I can’t say that you are wrong either, and I’d love to think you were right. But with so many Democratic politicians concerned only about covering their own ass instead of standing up for principle, and a media who has been intimidated into a combination of stupor and sycophancy, I’m a bit cautious.
We’ll find out soon enough how Feingold’s censure resolution is received by both the public and his fellow Democrats. However, you may be right, because if Feingold had been completely cautious we wouldn’t have got this far. So it might not be long before I’ll be joining you on this one.
Hysterics are not constructive.
ReplyDeleteYour belief that Chief Justice Roberts plots to overturn Marbury is quite preposterous.
ReplyDeleteAnd until very recently, the idea that the President of the United States would announce that he is not bound by the laws passed by Congress would have been preposterous.
I don't care what the Federalist Society pretends to believe as reflected by their mission statement. I've been to their meetings and I know what they really believe.
Robert 1014. I appreciate your comments. I read that PCR gave anyone who wants to reprint his articles online permission to do so. I'll write and ask him to be sure that is true.
ReplyDeletePCR is essentially, above all, a True Patriot. His whole point now is that unless the citizenry wakes up soon, it's going to be too late.
I'd bet that's about the only thing on his mind these days. He's been writing daily columns about this same subject.
I've been to their meetings and I know what they really believe.
ReplyDeleteOh? When (and where) was the last meeting you attended? And...
What is it that they "really believe"?
ReplyDeleteDoes anyone else get PORTSCAN intrusion attempts from DoD IP addresses?
Have they started "watching" us?
Was you to post some logs with ip addresses that map into the DoD I'd be much obliged. Being continually scanned is just a part of being on the 'ol internets these days. I would be very surprised if any competent parts of the DoD used DoD allocated IP blocks to originate their scanning activities. Which I'm completely convinced they do.
March 16, 2006
ReplyDeleteDachau's 73rd "Grand Anniversary" Celebrated
Feds Schedule $385 Million Concentration Camp To Be Built By Halliburton Subsidiary
By CLANCY SIGAL
I am not one of the "Hitler is here!" crowd. From personal experience.... I have felt the heavy hand of the ignoramus on my shoulder.....
So you get hardened. Shrug it off. Resist paranoia. Fill your wallet with the telephone numbers of lawyers. And wait for something to happen when nothing actually does, at least to you.
Then your eye falls on a barely-noticed article in a local Southern California newspaper.....
and the stomach-tickling fears start all over again.......
Isn't anybody wondering why we're not hearing from political elders and America's past statesmen on what Bush is doing?
ReplyDeleteWhere is Daddy Bush and Bill Clinton on George W. Bush's mad grab for power? Why is everybody silent?
We've had whispers and mutterings from certain corners, like Jimmy Carter's eulogy at Coretta Scott King's funeral and Sandra Day O'Connor's speech a couple of weeks ago, but nothing from anybody else. Where the hell is everybody? It's as if they all know that we've passed the point of no return (debt, global warming, loss of the middle class, outsourcing of jobs, etc.) and they're amassing as much personal wealth as they can, moving to high ground and hoping to be alive when the smoke clears.
In the last few weeks, the chattering cable class has been floating a meme that Bush's staff is tired and that he must change course, bring in new blood if he's to avoid lame duckness. After reading James Risen's book, it's perfectly clear that not only isn't that going to happen, the two people who most need to retire (Cheney and Rumsfeld) may never leave. They can't afford to leave - between the secrets and the overhaul of the Pentagon and the intelligence agencies, they can't let non-approved people in.
For a very long time now I've been wondering what Bush, Cheney, Rumsfeld and Rove have on members of Congress and the media, to keep them all so obedient, so unorganized. We out here in the wilderness keep looking for a sign, for somebody to pick up the gauntlet and resist the destruction of the United States.
It doesn't look like it's going to happen.
I've been thinking lately of how this must have been what the passengers on the planes on 9/11 must have been experiencing. Knowing that the planes were going to be crashed into buildings, that they were going to die, but hoping somebody would intervene and prevent it. It's as if we're all looking for someone to do something, but so is everybody else.
This is crazy.
I have a question: if Congress is unable to confront Bush on his making legislation basically irrelevent, is there something we as voters can do? I mean, isn't Bush's attempts at marginalizing and ignoring Congressional legislation somehow violating our rights as voter/citizens to have representation in Congress? I mean, why vote for a Congress when the President will just ignore it?
ReplyDeleteI live in Australia and I should point out that this lawlessness has destroyed a considerable amount of credibibility in the eyes of the world.
ReplyDeleteYour once strong and well respected nation has been reduced to a group of broken lawless cowboys by the efforts a single man.
Not to mention your debt.
USA needs to be saved. Not from terrorists, but from yourselves.
ap.
John Roberts is not the President, he is the Chief Justice. And if Bush's claims ever come in front of Roberts in a case, I am confident that he will lead an overwhelming majority of the court in rejecting them.
ReplyDeleteAnd if you had said, prior to the decision in Bush v. Gore, that you were confident that the Supreme Court would never take on a case that would get it mixed up in deciding who would be President of the United States, you would have been of the same opinion as 99% of America's lawyers.
What you don't understand is that the Cabal that has taken over this country does not believe in the legitimacy of our Constitutional system of checks and balances. They are like the revolutionaries in France in 1789, who were determined to replace the Ancien Regime with a totally new system. We are like the progressives in the French aristocracy who continued under the impression that Robespierre and the rest only wanted to reform the system instead of overthrow it. They continued, confidently, under that impression until they were marched to the guillotine.
"They are like the revolutionaries in France in 1789"
ReplyDeleteI submit that what we're seeing here is a pervasive historical illiteracy. Or maybe it's just denial. History is a lot bigger than the Federalist Papers. I, again, recommend "Citizens", by Simon Schama, as a corrective to the idea that civilized norms govern political upheavals nominally classified as "democratic".
Hopefully JaO provides a good logical argument why this conclusion is false. I welcome it.
Hey, sorry to go off topic in the thread, but I'm having a hard time finding the answer I'm looking for and I thought this might be the place where someone would know.
ReplyDeleteDoes anyone have any information on Echelon, or remember how it played out in the media when that program was unconvered between 98-00?
I know that the ACLU and Bob Barr were up in arms about it, and that Gen. Hayden and Tenet testified that the program was complicit with FISA, but I can't find much other than that about it.
Did anyone ever dig into it very much?
How many times have Bush and his officials described any criticism of or disagreement with anything they say as giving "aid and comfort" to the enemy - just happening to use the phrasing describing the constitutional standard for treason. Is there any doubt that the determination for secrecy is motivated in part to give them the freedom to spy on political opponents and critics as if indistinguishable from threats against the national security?
ReplyDeleteNo mere legislation is going to make a dent on this steamroller bearing down on our democracy. Only censure, or withholding executive branch funding, or an impeachment inquiry, can make a difference; and whatever the format, must be backed by a public outcry clear enough to give our administration convictions of a new, more modest ideal of its own power.
yankeependragon said...
ReplyDeleteAre there any legally recognized standards involved in this program? And before Bart or anyone fall back on the "inherent authority" argument, I will note that this was not and has not been the Administration's argument since day one.
Actually, the President has depended on the Article II authority from the beginning. It is the AUMF argument which was added later.
georgelo said...
ReplyDeleteBart, again I ask for comment.
Posse Comitatus Act. Why did Bush say it prevented him from using the Armed Forces to help save lives in New Orleans?
I don't recall Bush ever discussing that issue. It was raised by others in the military and administration after the the Hurricane.
The Posse Comitatus Act prevents the military from imposing martial law in a state absent a military invasion or insurrection unless invited in by the state. I recall the allegation being made that the WH asked for that permission from the LA governor when the hurricane was passing through and she denied the Army permission to federalize the national guard and come in.
According to you, article one section eight clauses that enable Congress to regulate the Military and all other powers don't apply to CinC powers. In view of my opinion that you view article one too narrowly I must ask, why be restrained by Posse Comitatus if CinC powers trump all else?
Article II gives the President power to command the military, but not to impose military law on a state during peacetime.
Glenn Greenwald said...
ReplyDeleteI am just pointing out to Bush supporters like Bart -- who claim that they had to eavesdrop outside of FISA because FISA's evidentiary standards are too strenuous -- that, according to the Administration, they are using the same standards under the NSA program as FISA mandates, and that they have no greater eavesdropping powers - the only difference is WHO approves the eavesdropping, not the scope of the eavesdropping.
Either (a) the Administration is lying about this or (b) they're telling the truth which means that the justification given by Bush supporters is false. That is the only point I'm making.
Justice is offering a legal defense argument, not lying about a fact.
I happen to disagree with the Justice legal argument and I have given my reasons why in a great deal more detail than Justice gave in their answer to Congress.
Its amazing how all of us "Bush supporters" have different interpretations from Justice...
"if Congress is unable to confront Bush on his making legislation basically irrelevent, is there something we as voters can do?"
ReplyDeleteYes, we can write a New Constitution outside Article V, change the rules, and lawfully revoke abused powers. We don't have to have a Constitutional Convention to do this: [ Click ]
We can say, "Game is over" and "We are in Charge" -- we revoke all the powers you're abusing.
We can then force the Members of Congress and Military to take an oath to the New Constitution and lawfully protect our rights from this domestic threat.
So let me get this straight... According the Constitution, the President's duties include the duty to "preserve, protect and defend the Constitution of the United States." And it is claimed that, in order to perform this duty properly, the President must have the power to "discard, abandon and attack the Constitution of the United States"???
ReplyDeleteI wonder: just how many articles and amendments is the White House admitting they violate?
Gandalf: "And it is claimed that, in order to perform this duty properly, the President must have the power to "discard, abandon and attack the Constitution of the United States"???"
ReplyDeleteIf he's going to abuse power -- we need not recognize that abused power, and can lawfully revoke it.
He wants it both ways: To avoid changes needed to compel assent, he asserts the law to abuse; to justify abuse he ignores the law.
There's no rational debate with this idiot: Time to quit muckying around and revoke the abused powers with a new Constitution.
Congress isn't doing their job: Time to send them a new wake up call in the form of a new constitution. The time for "playing around" with these idiots needs to end -- they're not listening and want to drag this out.
Time's up. We need a new constitution.
Eyes Wide Open said...
ReplyDeleteResponding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court.
"Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening.
yankeependragon said...
To Bart (provided he's still listenting) -
So, knowing this, are do you still offer your otherwise unquestioning support to this program?
This argument does not affect my support for the NSA Program for the purposes of intelligence gathering against foreign groups and their agents.
Whether the government can also use intelligence as evidence in a criminal trial evidence is a separate issue entirely.
This issue has not been resolved by the courts. However, I think that the courts would resist this argument.
After the FBI conducted warrantless searches of the car and home of foreign agent Aldrich Ames, Justice intended to introduce evidence gained from those searches in his criminal trial. There was a great deal of controversy about this and Justice ducked the issue by blackmailing Ames to plea out by charging his wife.
As a defense attorney, I would sure as heck argue to exclude any evidence gained this way. I am not sure how I would rule on this if I were a judge. I would need to do a great deal more research.
JaO says:The general notion that mainstream conservative justices are in cahoots with Bush to uphold his exclusive war powers is just silly. Yoo is out of the mainstream, a radical revisionist. But the notion is sometimes floated by wishful wingnuts and paranoid moonbats alike.
ReplyDeleteWhat he said.
Robert Levy is both a member of The Federalist Society and a Senior Fellow in Constitutional Studies at Cato. This has been mentioned here before, but he eviscerates another Federalist member in a debate about Bush's illegal NSA program here.(pdf.)
The idea that all Federalist Society members -- or even most -- are authoritarian nuts who believe Marbury is bad law and who thus reject judicial review, is daft.
I have no doubt that should this NSA program end up before the Supreme Court, Bush would lose resoundingly. The Opinion might even be unanimous, the law is that clear.
However, I am somewhat fluent in French, and that may taint my perceptions.
Bart: "This argument does not affect my support for the NSA Program for the purposes of intelligence gathering against foreign groups and their agents."
ReplyDeleteThe basis of this support is on a narrow definition of "the program" -- however, the larger NSA activity has yet to be accounted for.
Why is the President using money -- which Congress has not appropriated -- for the "45 day review"?
No answer: It's illegal.
. . .
We can go round and round all day long on this: YOu have to decide whether you are for the rule of law, or you are for tyranny.
The current non-sense isn't getting resolved, and neither is a discussion over "evidence." These are not simply matters of constitutional law, but criminl law -- to which the Congress refuses to recognize.
What's a solution to this Congressoinal stand off over the Constitutoin? I hear nothing but blabbering back and forth over "what this does or doesn't mean": We need some leadership here, not this continued non-sense over "how long are we going to wait."
They're doing teh same they did in Guantanamo and Abu Ghraib with the NSA activity: Doing what they want, ignoringn standards, and saying, "Hay it's for the cuase." COme to find out the "big cause" that supposedly "justified" detentions at Guantanamo -- was based on non-sense: The "supposed evil people" -- that were supposedly detained at Guantanamo, as were under Surveillance -- were not related to any criminal activity.
Believe the non-sense all you want: The error is to see the larger picture of misconduct from Guantanamo and Abu Ghraib -- and see how it tells us all we know about the "other NSA programs": They are using non-sense to rationalize illegal conduct.
You want to "discuss this" for the next 3 years -- as has been done with the WMD-DMS memo-stuff? Get real, that's a non-starter. The time for this non-sense needs to end.
We going to have some leaders her, or are you goign to debate back and forth trying to convince some "adjudicator". Here's a hint -- you're talking about power, and that's at oddsd with the adjudicator you're trying to "win over": The voter.
The voters don't have the comprehension of what is needed -- we need some leaders who are going to call it like this is, and lawfully-swiftly move to force the Congress to act with a credible threat of a new constitution. OTherwise, you're asking the American public to "put up" with your continued non-sense for "maybe three more years."
Hay: This non-sense needs to end. Is this the kind of coutnry you want -- as it is --? Fine, then you've chosen the wrong side of the law. Pick sides and let's figure out what's to be done. You're either a leader or you're irrelevant.
Wake up. This is a dictatorship.
Isn't anybody wondering why we're not hearing from political elders and America's past statesmen on what Bush is doing?
ReplyDeleteI'm more puzzled by why the Senate and House aren't up in arms about Bush's assertion of power. Bill Clinton and Bush Sr. were both presidents and were probably tempted by the idea of unrestricted power themselves. Because of that, they're likely to be somewhat sympathetic to Bush's argument, even if they don't fundamentally believe in it.
The Senate and the Congress, on the other hand, are being directly slighted by the president's actions. It's their power he's grabbing. Self-interest alone should be enough for the majority of Senators and Congressmen to push back against him. When he say's he can't submit to congresional oversight, he's saying that we can't trust the Republican lead congress to act in the nation's interest. Instead of being offended by that argument, they're tripping over themselves to make his actions legal and cover him politically. Bill Frist is acting like the president's water-boy, not the leader of a co-equal branch of government.
You know, I ask myself why I stick around and continue to read the screeds of Mr. Greenwald. When I first came here I believed (sort of) that he was bankrolled by George Soros. That made him a “hired gun” (or “hack” to use the appropriate term). That belief stood up, as he bombasted and hyperbolized about the NSA “scandal” [not much of a “scandal” if only two or three political opponents willl vote for it, but nevermind]. Then I thought he was bankrolled by Howard Dean. Or maybe it was the other way ‘round, first Dean and then Soros. Anyway, I always read (past tense) his stuff as “hired gun” material.
ReplyDeleteThen comes the screed on how “the Bush movement” (whatever that is) is unprincipled. So, if one is a hack, does one immediately [in the same post, yet] recognize that one is full of sh*t? The short answer is “No”. The original post was manure. However, the updates implicitly confirm that the author is recognizing that the original post was manure. This is (where I come from) called integrity. Well, integrity is not really part of being a hack. Integrity is sort of “checked at the door” for hacks. So right now I am confused.
Maybe it was a “boys night out” “go ahead and have some fun” “I don’t really care about this” moment. Hmmmmm.
Frankly I wish more Presidents would exercise the kind of "balls" that Bush does. How else does the Executive branch protect its rights. Congress certainly expands its power each and every day and the Courts expand theirs by interpreting the law. Ultimately it will be our 3rd brand of government that has the say-so in this matter, not Congress, not the press and thank God not the Blogsphere.
ReplyDeleteMatt, your argument -- and clear basis of illsory hope -- fails. You're entering the Twi-Matt-zone:
ReplyDeleteMatt: "Frankly I wish more Presidents would exercise the kind of "balls" that Bush does." -- The same recklessness as Hiter?
Matt: "How else does the Executive branch protect its rights." -- Executives don't have rights, they have power and ministerial duties. Bush ignored the law: FISA is a ministerial duty. Those who absue power, lose the right to claim they are protecting the Constitution. They are despots.
Matt: "Congress certainly expands its power each and every day and the Courts expand theirs by interpreting the law." -- I feel like I'm watching a twilight zone episode: Oh, so we're to believe that the Executive is needed to tame the abuse of Congress. Get real.
Mat: "Ultimately it will be our 3rd brand of government that has the say-so in this matter, not Congress, not the press and thank God not the Blogsphere." -- I don't believe you're serious. What happens -- as has already been done -- the Executive ignres the 3rd Branch. Remember, the FISA court is part of the 3rd Branch. Can't argue "the 3rd Branch will save us" -- Bush is already ignoring what you say will "save us."
The third branch was the one that rubber stamped the Iraq war; where's the "big followup" on the "big fraud" committed onthe court -- we have no WMD; so why nothing done to revisit what was a fraud upon the court in 2003 over the Iraq War? Wow, I'm impressed with the 3rd Branch. Which lawyer is going to "get around to" looking at that one? 3rd Branch only works if you've got a credible powerbase that offsets what the executive is doing -- we have the opposite: The courts are getting ignored.
But why stop there, the 3rd branch, as in the one where the lawyers show up and plead their case before the court? Wow, look what a great job that's been to date. "Illegal war in Iraq," hay maybe we'll get around that after more laws are broken. We need something that is a little more responsive and timely, not something what we have: That "gets around to" reviewing matters with the favorable weather. Despite the "big ruling" over Hamdi by the "third branch", the President keeps doing it. Wow, so much for the "big stonewll" by the 3rd Branch.
The maladministration (defending the wiretaps):
ReplyDelete"The relevant distinction between the two methods -- and the critical advantage offered by the Terrorist Surveillance Program [sic] compared to FISA -- is the greater speed and agility it offers"
The relevant distinction, based on just the law, is that the so-called "Terrorist Surveillance Program" doesn't require any warrants or any independent evaluation of whether the people being surveilled are actually probably terrorists, just the "probable cause" 'say so' of the spooks at the NSA.
Hate to say it, but this is the real significant differnce. If the maladministration wants to make the case that there are other differences, it's up to them to make that case, rather than saying "trust me" and repeating ad nauseam that they won't talk about it because of reasons of Nixonian "national security"....
Cheers,
"The Senate and the Congress, on the other hand, are being directly slighted by the president's actions. It's their power he's grabbing. Self-interest alone should be enough for the majority of Senators and Congressmen to push back against him."
ReplyDeleteThe way forward is to make COngress do what they refuse to freely do by:
1. Stripping them of absolute immunity when it comes to appropriations for unlawful activity -- and making those appropriations, not just the expenditure -- unlasful;
2. Forcing there to be a Congressoinal decision after Judicil Review whether the law is Constitutional -- none of this "presume the act is lawful" nonsense
3. Revoking the Article 1 Section 5 power to make/enforce member rule and transfer that power to the States
4. Transfer the GAO-auditing-IG-DoJ enforcement powers out of Congress-Executive and transfer them into a fourth branch
. . .
Bottom line: Congress needs a wakeup.
The maladministration continues:
ReplyDeleteSection 106(j) of FISA, 50 U.S.C. 10806(j), provides that if a court later declines to authorize an interception that was previously authorized by the Attorney General under the so-called 'emergency' exception to FISA, it may order disclosures about the surveillance to U.S. persons whose communication was intercepted. Thus, using the 'emergency' exception poses a risk that surveillance activities will be subject to public disclosure. To reduce that risk, the Attorney General follows a multi-layered procedure before authorizing interception under the 'emergency' excpetion to help to ensure that any eventual application will be approved by the Foreign Intelligence Surveillance Court."
(my emphasis)
IOW, they won't tell you about the ones that don't make the grade of "probable cause". They'll do it, and if it doesn't pan out, they'll keep it secret so that the provision of the FISA that provides for a check on abuse -- the disclosure provision (which is discretionary, as noted above, on the rather conservative FISA court), which is needed for people to know that they've been snooped on unjustifiably in order to even begin to seek redress --
is circumvented. Once again, "trust us, we're from the gummint". The only time the maladministration needs to fear this is if their snoops are not justifiable in the end to a court ... AND ... this conservative court gets pissed off enough at their abuse so as to mandate disclosure to the injured parties.
That's a hell of a 'justification', folks. But about par for the maladministration.
Cheers,
This may have already been asked in some form or another but I have been curious about something. The Bush admin has been arguing that Congress may not enact legislation that seeks to limit Bush's constitutionally bestowed powers. But what about the reverse? Couldn't it be said that just as Congress may not impinge upon the powers of the executive, the executive may not do the same for the legislative?
ReplyDeleteFor instance: say legislation is passed that seeks to limit the amount of funding for the war in Iraq (the so called power of the purse, which seems to be the only thing the Congress has left). What if, when signing the bill into law, Bush declares the right to ignore the funding limit because it impinges on his right as commander-in-chief to conduct the war as he sees fit to. Wouldn't this declaration be seen as Bush usurping a power bestowed onto the Congress thru the Constitution?
Note: I am in no way a legal scholar, and it probably shows in my asking this question.
jao said:
ReplyDelete"Now that the jig is up, it is time to consider the policy issue of what FISA amendments might be appropriate to authorize enhanced surveillance going forward. And that analysis should start with the realization that the de facto surveillance today is actually greater in scope than FISA would allow."
Why bother when you have an executive that believes that they don't have to follow any law that is passed anyway?
The first thing that has to be done is to reign in an out of control executive, and it's beginning to look like the only way to do that is by impeachment and removal.
This reminds me of an instance when Clinton was still in office. An individual shot up a Jewish day care center in California. Gun control advocates immediately jumped on it claiming that another gun control law was needed. The fact was that the individual was already in violation of multiple gun control laws already on the books.
My point being that simply passing or amending another law won't solve the problem. The only thing that will is enforcing the laws that are already there.
It is a fact that Bush has broken the law. He has admitted it and has said that he will continue to do it. So until we have a Congress that is willing to enforce the law by holding Bush accountable for his actions any other action the Congress may take is useless, actually less than useless.
In former times when a President was opposed to a law he did what the Constitution provides--he used his power of VETO.
ReplyDeleteThis President simply declares that the law exists, but not for me.
If we accept this we will deserve what we get.
Anonymous said:
ReplyDelete"The voters don't have the comprehension of what is needed -- we need some leaders who are going to call it like this is, and lawfully-swiftly move to force the Congress to act with a credible threat of a new constitution."
Your elitism is showing. The voters haven't had the opportunity to weigh in yet. They will in November and I believe that absent the fraud that has occured during the last three election cycles, they will weigh in with a rejection of what is going on with loud enough voice that it will astound many.
It's about time somebody else picked up on this "little" fact.
ReplyDeleteWe know the President isn't obeying the 4th or 14th Amendments or FISA. The Executive's excuse is Article II power.
Senator Arlen Specter has said on the Senate floor, in session, (in the moments after Senator Feingold introducted his censure movement), "Doesn't the Constitution trump a statute." He was referring to Article II trumping FISA.
If the President has powers to trump the FISA statute, then he has powers to trump any *new* statute that Congress passes, by the same argument.
His power is UNCHECKABLE.
Why do we even have a 4th and 14th Amendment if the Executive Branch doesn't have to follow them?
Clearly, Article II does NOT trump these laws. The President has broken the law. He should resign.
Bart said:
ReplyDeleteQuisque pharetra sagittis magna. Cras ultricies justo nec ligula. Maecenas at metus eu nulla mattis bibendum. Sed eu arcu. Pellentesque vitae mauris. Etiam convallis, dui eget aliquam auctor, odio lectus imperdiet diam, accumsan vehicula odio arcu in arcu. Nam ut est at dolor varius pretium. Ut at nisl. Maecenas vel nibh. Morbi convallis, arcu in dictum pharetra, odio urna semper odio, sit amet dictum magna massa id erat. Mauris eu odio. Nullam est ipsum, feugiat quis, hendrerit sed, mattis vitae, justo. Praesent sapien elit, luctus a, suscipit non, placerat in, purus. Donec placerat nulla sit amet est. Curabitur sodales ultricies sapien. Pellentesque habitant morbi tristique senectus et netus et malesuada fames ac turpis egestas. In condimentum nonummy quam.
Ut lectus dolor, malesuada sed, lobortis eget, vestibulum id, dolor. Morbi arcu felis, congue sed, interdum nec, varius ultrices, ante. Pellentesque aliquet, purus non ultrices rhoncus, magna odio adipiscing lacus, nec volutpat leo leo eget sem. Mauris tempus, sem ultricies facilisis sodales, sem libero semper nunc, sed aliquam tellus tellus nec augue. Integer porta. Nam pellentesque dictum felis. Proin massa. Suspendisse eleifend orci nec diam. Mauris laoreet elit at justo. Proin sapien urna, eleifend id, faucibus cursus, consectetuer et, magna. Nulla varius nisi nec nunc.
Aenean rutrum adipiscing lorem. Maecenas dui. Curabitur euismod. Aliquam faucibus lacus sit amet diam. Fusce convallis leo non lorem. Nunc sodales urna a urna. Sed nec erat eleifend lacus pharetra suscipit. In facilisis sodales felis. Nulla in augue. Pellentesque pulvinar, lacus id commodo tincidunt, metus sem dapibus lorem, quis tristique eros leo eleifend nibh. In tristique arcu interdum metus. Aliquam a pede at tortor suscipit commodo. Mauris eget massa. Duis nonummy lacus vitae diam. Praesent a arcu sit amet turpis faucibus sodales. Suspendisse luctus eros. Vestibulum fringilla. Donec volutpat, dolor nec hendrerit accumsan, urna nisl volutpat arcu, et dictum ante metus vel dolor.
Sed sagittis. Mauris eget est. Duis tincidunt convallis ipsum. Curabitur ut mauris. Sed ultricies. Mauris eleifend. Maecenas laoreet ligula eu lacus. Aenean malesuada. Suspendisse eu eros eu metus accumsan lacinia. Maecenas consectetuer aliquam ante. Aenean ipsum. Donec vehicula. Cras elementum sollicitudin lorem. Proin tortor purus, consequat a, vulputate non, sagittis aliquam, purus. Fusce id urna vel sapien commodo bibendum. Praesent arcu sapien, auctor at, accumsan at, porttitor eu, nibh. Phasellus felis. Mauris id nisi egestas nunc commodo pellentesque. Aliquam mauris. Nulla facilisi.
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Broder's column this morning was titled, "An End Run Around the Constitution."
ReplyDeleteI thought, wow, maybe the Wise Old Washington Insider has woken up to the threat posed by Bush's claims that he can do anything he wants, as long as it's connected with protecting the nation.
No such luck. It's about some idea for an interstate compact to ensure that the popular vote winner wins the electoral vote too. For some reason, Broder thinks this longshot idea is a threat to the Constitution worth his attention, but what's going on right now isn't.
I suspect Rip Van Broder can't be awakened.
Re: notherbob2 at 2:19am
ReplyDeleteClearly it isn't only the left that will indulge in rhetorical overreach and scatology. I'm not naive enough to think the 'Anonymous' commentator here who makes it a point to call any of us on it will pony up and admit the same.
That said, I have yet to see anyone here present actual evidence against the assertion. Name calling and proposing 'sinister' motives (as if countering the RWNM with acutal facts or counter-opinions is in any way 'sinister') moves the discussion nowhere and merely demeans the commentator.
And a small bit of advice: if you want to lecture anyone on 'integrity', actually address the question or issue on substance or simply admit you can't.
Anything else is just noise.
Another simple question: Isn't a background concern in the controversey about executive inherent powers a question of the "right" of the executive branch to declare martial law? That is, if the Congress limits the President's powers, then s/he cannot declare martial law in the future event of, let's say, invasion, breakdown of civil order, and so on.
ReplyDeleteTo the cynic librarian -
ReplyDeleteThis may be a concern, but one I would put under the heading of 'Red Herring'.
What is under discussion is if the President has any enumerated 'right' to summarily ignore a US Statute in what is technically a time of peace (no Declaration of War, remember) and engage in activity that may well infringe on 4th Amendment guarantees.
I say 'may' because we simply don't know the full scope of the program under discussion and whether it actually holds to any verifiable legal standards.
His capacity to declare Martial Law in time of national emergency is neither contested nor under discussion as this is more clearly falls under the C-i-C provision in Article II (whether such a move is either desirable or appropriate will depend upon the circumstances).
Despite what some here have claimed, the NSA program under discussion is of more dubious standing as we are not formally at war (again, there has been no Declaration of War from the Congress against *anyone*) and 'intelligence gathering' activities may or may not be covered under any AUMF passed since 9/11.
Yankee: Thanks for your response. I see why some might think the concern I mention would be a red herring. I guess I'd ask, though, why is it a red herring to ask whether passing one law would infringe on the potential exercise of an unacknowledged but accepted "right" such as martial law.
ReplyDeleteLet me be clear: I am not saying that at this time the Congresspeople are thinking consciously about this issue. The President's ability to declare martial law is one of those tacit understandings that few acknowledge (at least so far) but all accept.
What I see happening in this discussion about the President's inherent executive powers is an appeal to that tacit understanding without bringing it into the open.
On the other hand, until you clarify for me why questioning the President's inherent executive power does not imply or include this tacit understanding, to call it a red herring is begging the question.
I'm not naive enough to think the 'Anonymous' commentator here who makes it a point to call any of us on it will pony up and admit the same.
ReplyDeleteThere are certainly people on right-wing blogs that cannot resist the strange temptation to employ scatological imagery in their "flame" posts. So what? Only a child will give the HE DOES IT TOO defense when confronted with misbehavior.
It's a bizarre compulsion whether done by the right or the left.
Just a side comment:
ReplyDeleteWhen we have a corrupt and distorting set of news media, we should realize that 'we' do not know what 'they' are thinking for the same reason that 'they' don't know about much of what is going on.
The media report the abysmal poll numbers, and then go on as if the country is solidly red.
It's my belief that Americans are sickened by the idea that we have become the nation of torture and war based on lies.
Why don't they take to the streets? They have. But it doesn't get reported, or if it does, the comments of the six Protest Warriors standing in their Ann Coulter T-Shirts get as much space as the organizers of a 100,000 person march.
We don't know what the American public feels, because even as we inveigh against the distortions of the media, we still rely on them for our perceptions of them.
Not that we have much choice. But we should be careful in talking about 'sheep'.
To the cynic librarian -
ReplyDeleteI see where you are going with this. What is at issue is a relatively straightforward issue of whether the President is actually bound to follow US Statute as it is written; no-one within the Administration (so far as I know at least) has made the claim or challenge that FISA itself is unconstitutional.
If such a challenge actually is made in Court, much would depend upon how SCOTUS rules. If they do find that FISA does intrude upon Article II but nevertheless uphold it on the grounds it is an acceptable control on the Executive (thereby defending against potential 4th Amendment violations), this *could* set a broader prescedent for future Congresses to further legal controls on the President's authority. Of course those future statutes would face the same challenge before the Courts and as 'respect for prescedent' is strictly a tradition within the Courts and not an absolute, those future statutes would have to be argued ever bit as persuasively.
My point is: yes, you could make the argument at this time that FISA and this entire controversy is an intrusion on the President's Constitutional authority, and thus set the prescedent. However, until the Administration actually makes that argument and the Courts finally rule on the issue, this is all hypothetical.
To anonymous at 11:46am -
ReplyDeleteI take it back then and appreciate your ackowledgement.
By the same token, one would think the more mature thing to do when such rhetorical mud is slung is to simply ignore it and address the issue on substance.
It's my belief that Americans are sickened by the idea that we have become the nation of torture and war based on lies.
ReplyDeleteWe don't know what the American public feels...
Hey, we've got a Kerry man here! The presence of both those observations in the same comment is redolent of Kerry's "I voted for it before I voted against it" refrain that Karl Rove once called "the gift that kept on giving."
Very amusing, that.
Yankee: Exactly. Bring it out into the open. The president's entire justification for NSA eavedropping is a grand deception built on numerous misunderstandings anf vague implications.
ReplyDeleteThe foundation of the deception is that the US is at war. That simply is not true, as Gonzeles' statement before the Senate judiciary Committee shows.
But that deception goes unchallenged. Based on it, however, the admin and its supporters can pull in all of these tacit understandings, such as the
President's right to declar martial law.
The point is, there's no war, no emergency that would support such an exercise of power. I say no emergency--the 'war on terror" is a massive PR campaign against a threat that simply is not that great. In this regard, I agree with Francis Fukuyama in his most recent writings.
yankeeasshole:
ReplyDeleteat least no one on the left called Dr M L King or Corretta Scott King communists -- and those on the left were polite when she passed away.
But take the high-road here. We both know that the myth of chimpy's "energized base" is wearing thin and that your proclaimations here don't make anything so.
In fact, most here won't even waste their time reading them.
The chimperor has no cloths and most of america sees that. You don't acutally have any cloths either, but that is OK if you are just an egotistical blogger.
Can you say Dictatorship?
ReplyDeleteTo anonymous -
ReplyDeleteEither something has been misinterpreted here or you're thinking of someone else.
I don't support either the current Administration nor its policies, nor do I agree with its supporters on anything from the color of the sky (which is blue, btw) to their notions of religion and politics (the two of which should be kept very, very, very far apart).
I've stated quite bluntly that George W Bush is a laughing stock as a President and the last six years have been a monumental embarrassment to both our nation and our history.
What exactly then brought out this sudden attack? The fact I can still play 'devil's advocate' on some of these issues?
mds: Hypatia said it best when she noted that this is not the theory of the Unitary Executive, but of the Unilateral Executive.
ReplyDeleteSir or Madame! Clearly you seek to ensnare me in the plagiarism-hunting maws that are bringing down the low and the mighty.
But it shall not stand! I have always identified the statesman Albert Gore as the originator of that distiction.
;)
To yankeependragon...
ReplyDeleteAs GWB would say...time for regime change!!! Remove the Dictator!!!
To anonymous -
ReplyDeleteOkay, I'm officially lost.
jao said...
ReplyDeleteBut the plain text and legislative history of FISA contemplates amendment during wartime, and Bush and Congress should have considered additional authority after 9/11. It is still appropriate to do that now.
Am I wrong here or was this not already done? Perhaps someone can clarify but I believe I have read that not only was FISA "adjusted" at least once but also that DeWine or some other nincompoop proposed legislation, well before it was known that BushCo was breaking the law, to amend FISA that BushCo rejected by saying that FISA was sufficient.
Glenn can you comment or correct me if I am wrong here please?
Jao - if what I have stated above is true what is the god-damned point of further legislation? I am a reasonable person. If I thought that what was really at issue was BushCo being handcuffed by out of date or ineffective laws I would be open to hearing ideas but the plain fact is that it does not matter the law. Good or bad - right or wrong - helpful or constricting... King George will do what he wants to do.
I do not like your comments. I am beginning to believe you are not genuine. "War time" my ass... when will the "war" end Jao? I am completely unwilling to give up any more of my civil liberties for some modicum of perceived safety - terrorists and neo-cons be damned I say.
I for one DO think the Constitution is a suicide pact. Without it and our rule of law our country means nothing and is dead anyway.
I for one DO think the Constitution is a suicide pact.
ReplyDeleteHerein lies the crux of the debate. There are those, like rh, who believe that we should allow our enemies to destroy us be shielding themselves behind our constituional liberties. There are those (nearly everyone else) who do not.
Does anyone believe that the majority of our legislators will ever endorse the sentiment expressed by this fellow rh?
“I have yet to see anyone here present actual evidence against the assertion.”
ReplyDeleteApparently once Pendragon is enamoured of a concept (in this case “noise” as opposed to factual content) it becomes a hammer and every comment that is disliked is a nail. I said: “...the updates implicitly confirm that the author is recognizing that the original post was...” [Word Thesaurus: “implicitly: tacitly, unquestionably, by nature, inherently, basically, virtually, natural, simply, and by inference.” “confirm: corroborate, establish, verify, bear out, resolve, authenticate, substantiate, justify and make certain.”]
I suppose that when one views the world through a prism, facts which are contrary to one’s predilections [Word Thesaurus: ”predilections: prejudice, propensity, bent, penchant, bias, disposition, favoring, inclination and leaning.”] are difficult to discern.
Tell me, Pendragon, if Rush Limbaugh dedicated your favorite song to you, could you stand to listen to it through the end? If you did, would you enjoy it or be gritting your teeth?
This question about whether the war on terror is a real war is just a matter of so-called semantics is a logical mistake, I believe. The notion of a semantic difference implies that there are no real, practical consequences that adhere to the terms.
ReplyDeleteIn the case of whether a military action is a war or not does have practical consequences, however. As AG Gonzales pointed out, being at war carries with it consequences for treaties and related international policies into which the US has entered.
I suggest, moreover, that the question of whether the US is at war has legal and constituional consequences as well, not to mention political consequences. As some have suggested here, in a time of real war, the populace is willing to cut the executive branch some slack that it ordinarily would not do at other times. That is, the public is willing to give the President the benefit of the doubt when it comes to securing the borders and the country's defense.
What I have suggested is that the illusion of carrying out a war that is not really a war gives the President this benefit, when in fact he should not be given it. It's only an illusion whose political and social capital he can exploit because no one is willing to reveal what's happening for what it is: a lie and a deceit perpetrated not to gain the benefit of the public interest but instead a charade to further enable the political and social interests of a party and its supporters.
I am not so sure that the solution to this dilemma resides solely in the courts. The courts have shown themselves quite willing to expand the idea of a resolution for the use of military force in such a way as to equate it to what a President is allowed to do in a time of war. That is, the courts have bought into the notion that the President has the same powers under a resolution as s/he does during a time of war.
What I have suggested is that the illusion of carrying out a war that is not really a war gives the President this benefit, when in fact he should not be given it.
ReplyDeleteWhat word would you use to describe what is going in on Iraq and Afghanistan, the whatever-you-want-to-call it thing in which over 2300 or our youth have perished and 9,000 more have been wounded during various battles in both places?
Is there a single Democrat in Congress who would get up and declare that we're not in a war?
anon: I do wish Dems would; I think it would burst the bubble that blocks people seeing the reality--that this is a sham that many innocents have died in and for.
ReplyDeleteOf course, the Dems have only to point to AG Gonzales' statements to show that even the administration knows it's not a war.
What other term can we use--well, I imagine that the great spin-meisters can pull some other euphemism from their asses.
But let's at least call a spade a spade--otherwise, we exist in this shadowy world where words mean what people want them to mean and everyone is going around confused and dazed because what they think is real is just a phantom devised by the political parties' spin machines.
...what they think is real is just a phantom devised by the political parties' spin machines...
ReplyDeleteWhat is it if it isn't a war? Over 80 journalists have died in this [spinmeister fills in something here]?
What are you going to tell their families...that they died in a "phantom"?
notherbob2 at 5:05pm -
ReplyDeleteWhat exactly does all that have to do with my original point?
Any number of things can be considered 'implicitly confirmed' in the world (including that the elections of 2000 and 2004 were effectively stolen through an orchestrated effort on the part of the Republican Party), yet do not rise to the level of confirmed fact.
So, again, show me where the underlying assertion has been concretely countered. Otherwise please just say you can't and let the matter rest there.
anon: Exactly. That's the ethically terrible aspect of this "war" that haunts us now and probably will for some time to come. If you think that question is not being asked by the soldiers themselves, I suggest you take a look at some of the stories about returning soldiers that raely make it into the news--those detailing the ethical and moral hells that the soldiers go through when they finally make it back home, either physically whole but psychologically damaged or crippled and psychologically damaged.
ReplyDeleteJao said...
ReplyDeleteHowever, that does not alter the real policy equation. Now we know that surveillance beyond the bounds of FISA was deemed to be needed in practice. We do not need to make policy today based on yesterday's disinformation.
I am very confused now. Do you or do you not support more legislation?
Are you working from the "trust big brother" principle? Are you are saying that because King George deems zero oversite warrantless wiretaps of American citizens necessary that that is all we need know? What the heck are you talking about? It makes no sense to me at all.
As to the "knowing" that there is a need for surveillance beyond the bounds of FISA - Who says? For the love of all that is holy - how do we "know" that "surveillance beyond the bounds of FISA" was/is needed?? I, for one, "know" nothing of the kind. Who says it? BushCo. Who is using it illegally and without oversite? BushCo. Who are they spying on? Who the hell knows? Are you advocating the "everything changed post 9/11" position? If so please explain why is FISA not sufficient? And you had better come up with something new because the standard talking points of "it takes to long" or "it is too difficult to meet the probable cause criteria" et al. are spurious, disingenuous, without merit and only being pushed by a power hungry Executive and those supporting this unitary powers theory.
This entire argument is ridiculous on its face. We the people, who are supposedly being protected are having our civil liberties trashed. We haven't the first clue what BushCo is doing, other than knowing he has broken the law, because he acts illegally and then hides, obfuscates and lies at every turn. BushCo divulges nothing and the rest of our government refuses to hold them accountable. Passing more laws will not help. There is no recognition of checks and balances or even good faith on the part of BushCo. Removing BushCo and the supporters of their plan to marginalize, disenfranchise and criminalize the American people is the only viable solution to this mess. He will not stop until he is stopped.
I suggest you take a look at some of the stories about returning soldiers that raely make it into the news--those detailing the ethical and moral hells that the soldiers go through when they finally make it back home, either physically whole but psychologically damaged or crippled and psychologically damaged.
ReplyDeleteThis happens in every war. In WWI is was called "shell shock." In WWII it was called "combat fatigue." Today it's called "post traumatic stress syndrome." Each war has its own term to describe the same phenomenon. War is a brutal and savage business, and it will always be so. Some get psychologically ground up in its gears.
Is your point that the phenomenon is worse today than it was in the past?
If so, please show us the evidence.
anon: Indeed what can make actions done in war worse than what they are already? That was your question earlier; I suggested, following your own comments, that what can make it worse is the fact that these actions were done in a situation that is based on lies and deceit--which, I believe, is what's happening now.
ReplyDeleteThis is the ethical terror I spoke about. It's a terror that borders on despair. A despair that is willing to accept any reason for what one has done just as long as it takes away the guilt and doubt about whether one was indeed fooled into killing people for a lie.
...that what can make it worse is the fact that these actions were done in a situation that is based on lies and deceit--which, I believe, is what's happening now.
ReplyDeleteIndeed you do. You and your fellow "Bush lied men died" mantraists underly the very problem you describe. Some boys come home having seen the ghastly goings-on in war, and they're confronted with shouts from rooftops that the returning soldiers' comrades "died for a lie." This is bound to have an effect on some.
This being said, the phenomenon isn't a useful (or sensible) thing to use as an anti-war argument. Aside from helping perpetuate the problem, it isn't an easy thing to convince others of, especially if you can't answer a simple question like the one I posed above: is it worse now than in the past?
Jao: I agree with much of what you say about rule of law and so on. I still think, however, that in times of war or extraordinary emergencies such laws can be abrogated--for a limited time.
ReplyDeleteI suggested that war is one of these; the President's ability to declare martial law--abrogating civil and other rights--during emergencies seems to be a tacitly accepted prerogative or right of the President. I also suggested that this tacit understanding is the context within which many are willing to accept the current President's argument for executive privilege.
That's why I think the question of whether this is a war or not is important. If it is a war, then this tacit understanding about executive privilege seems to undergird all arguments. The reason why the courts might not wish to impinge on the President's "privilege" is because it realizes that if it does, then in a time of emergency he would be hampered from declaring martial law.
I had not read that Biden supported the view that a resolution to use force is the same as declaring war. That explains a lot about why the Dems are reluctant to support a censure. As I have argued before, the Dems don't want to support censure because they realize that they might need that power themselves when and if a Dem is President.
I find the argument that a resolution to use military force equates to a declaration of war as extremely dangerous and ultimately fallacious, based as it is on a false analogy. It is dangerous because it hands over to the President the discretion about when and where that force is to be used and in what manner.
It's a refusal of responsibility on Congress' part to uphold its own constitutional powers to oversee and maintain an ethical and political curb on the President's abuse of war powers.
It is fallacious, as I say, because the analogy between what a President can do during a war is, hypothetically, different from what s/he can do as a result of a resolution.
In terms of foreign policy, Zbigniew Brezinski has examined this question about what differentiates a war declaration from a resolution to use force. Alberto Gonzales acknowledged these differences in his testimony before the Senate Judiciary Committee.
The upshot of these remarks is that unless and until Congress either declares a war or acknowledges that a resolution to use force differs from an actual war, then they will have problems bringing the President to task for his abuse of executive power.
None of this should lead you to think that I approve of the President's actions, which I consider to be illegal and potentially dictatorial. The only way, however, that this power play will be curtailed is when Congress clearly defines what the President can and cannot do in times of emergency demanding martial law, times of war, and times of police actions called into being by resolutions to use military force.
PS Brzezinki's comments can be seen at Think Progress, along with related links
ReplyDeleteTo jao -
ReplyDeleteI believe the reason the cynic librarian and I (among others here) constantly re-emphasize the point that there has been no formal Declaration of War by the Congress is because so much of the Administration and its supporters depend upon a "we are at war" meme to justify much of its ever-expanding grabbing of 'powers'.
Given there has been no formal Declaration of War passed by the Congress, one is left with the fact we are legally in a time of peace. Let me hasten to add that we do have troops on the ground throughout the world and that they are engaged in actual combat; this is an undeniable fact. Let me further add that indeed the majority of the conflicts of the last half-century have been essentially undeclared but no less violent than WWII.
That said, the Administration and its supporters are consistently declaring "we are at war", using this as essentially an excuse to expand the Executive's powers and discretion to a truly unprescendented degree AND insisting neither the Judiciary nor the Legislature has the power or authority in which to contest this.
The problem then isn't so much that Congress hasn't declared war (lacking an state actor against which to do so) as much as the Administration's actions are taking place in a legal gray area with little or no Congression inquiry into their nature or actual legality.
Does that answer the question or have I simply confused matters further?
anon: Actually, the public seems to have caught on to the fact that this "war" is a lie. Recent polls show that they think we went to Iraq for the wrong reasons. Most people now accept the fact that Bush lied about the reasons for invading Iraq. I suggest that these views indicate an unspoken anxiety, which I've been writing about here.
ReplyDeleteJao: Since I understand that many people don't follow links, here's the Brzezinki quote that I've been relying on during this discussion"
ReplyDeleteBut it is a part of this atmosphere of Manichean polarization which is being bred by a phony definition of reality. Neither President Truman nor Eisenhower – Democrat and Republican – ever spoke of America being a “nation at war” during the Korean War. Neither President Johnson nor Nixon ever spoke of America being a “nation at war” during the Vietnam War. Yes we have a serious challenge from the potential threat of terrorism and we have to wage an unrelenting struggle against it. But to describe America repeatedly as a nation at war – implicitly of course with a commander and chief in charge – is to contribute to a view of the world by America that stimulates fear and isolates us from others. Other nations have suffered more from terrorism than America. None of them has embraced that definition of reality.
As you can see, the notion that President Bush has purveyed the illusion of a war has political consequences, at least as Brzezinski sees it.
I have been exploring not only the political aspects of this illusion but also the ethical dimesnions.
That said, the Administration and its supporters are consistently declaring "we are at war", using this as essentially an excuse to expand the Executive's powers and discretion to a truly unprescendented degree AND insisting neither the Judiciary nor the Legislature has the power or authority in which to contest this.
ReplyDeleteUnprecedented degree? I don't think so. And you're not admitting that the legislative branch is contesting some of the administrations actions, and if the dispute goes into the federal courts, that branch will also have its say.
What are you so worried about? A debate is taking place, and time will tell what happens. The administration has a strong case, and is using the power of its (coequal) status to push against certain legislative and judicial perogatives. Would you expect anything less? The legislature is pushing back, lines are being drawn, and the contest is playing out.
Crying foul and whining about the administration isn't going to advance your cause.
This is a classic American political struggle. and does not, despite the hysterics and bombast of many here, signal the end of life as we know it.
anon: Actually, the public seems to have caught on to the fact that this "war" is a lie. Recent polls show that they think we went to Iraq for the wrong reasons. Most people now accept the fact that Bush lied about the reasons for invading Iraq. I suggest that these views indicate an unspoken anxiety, which I've been writing about here.
ReplyDeletePlease remember that if you live by polls you'll die by them. If the violence lessens in the next few months the polls will turn around. Then where will you be?
I don't agree that "most people accept the fact that Bush lied." If people really believed that the "anxiety" you feel would not be "unspoken." You are against the war...fine. But I believe most people consider our liberation of 55 million muslims from tyranny to be a good thing, and that our motives are not craven or evil.
As Victor Davis Hanson wrote in a recent column:
Ever since 9/11 we have been in a long, multifaceted, and much-misunderstood war against jihadists and their autocratic enablers from Manhattan to Kabul, from Baghdad to the Hindu Kush, from London and Madrid to Bali and the Philippines. For now, Iraq has become the nexus of that struggle, in the heart of the ancient caliphate, rather than the front once again in Washington and New York. Whose vision of the future wins depends on who keeps his nerve — or to paraphrase the Duke of Wellington at Waterloo, "Hard pounding, gentlemen; but we will see who can pound the longest."
I am convinced most Americans feel this way, and most American politicians too, both Democrat and Republican. I believe it is your view that is in the distinct minority, and I do not believe it will prevail.
anon: You asked a question about what difference it makes whether this the conflict in Iraq is based on lies or not. You also asked for an example that might clarify this difference.
ReplyDeletePerhaps you are familiar with the West Point military ethics professor who went to Iraq to engage in a conflict that he thought exemplified the best of military ethics. Unfortunately, the corruption and dishonesty he found there were so great that he committed suicide.
In his suicide letter, he wrote:
"I cannot support a msn [mission] that leads to corruption, human rights abuse and liars. I am sullied. I came to serve honorably and feel dishonored.
"Death before being dishonored any more."
See Helena Cobban's remarks about this man of honor and his despair at seeing his country brought to this level. Also see the long posting on Col. Westhusing at Robery Lindsay's blog.
Unfortunately, the corruption and dishonesty he found there were so great that he committed suicide.
ReplyDeleteA sad story. I read the articles you linked to, and frankly, I'm not convinced his suicide can be laid entirely on his discovery of "corruption and dishonesty." The letter in which he wrote those words was written weeks before his death.
I think his death is a tragedy, but I don't think it provides a very good example of the consequences of going to war on a "lie." After all, I can link to hundreds of stories in which soldiers write about the nobility and heroism we display on a daily basis in that very dangerous place. Most soldiers returning from their Iraqi tours are not damaged goods, suffering from "post traumatic stress syndrome." Most get on with their lives, as soldiers have done from time immemorial.
Pro 29:12 If a ruler hearken to lies, all his servants [are] wicked.
ReplyDeleteI notice that some discussion's centered around censure vs impeachment. Note that the two aren't incompatible, and that censure now makes impeachment later MORE feasible given Bush's inclination to ignore what Congress says. My arguments why censure is better, from VichyDems:
ReplyDeleteRuss Feingold’s motion to censure, rather than impeach, the President for authorizing warrantless NSA surveillance, is a very good idea. It will keep the NSA surveillance issue on the media, and public, radar at a time when the White House is desperate to see it go away. In a Congress controlled by Republicans, censure stands a much better chance of success than does impeachment, since some Republicans may support a censure motion to simply get the issue done and over with and to establish their “independent” credentials with voters before what could be a Republican bloodbath in November. Democrats will look less opportunistic, and more noble, supporting a motion that will chastise the President without toppling him. Republicans’ efforts to whitewash the NSA scandal, as they’ve done in the Senate Intelligence Committee and will try to do in the Judiciary Committee, will be publicized much more widely, and more critically, if viewed through the magnifying lens of concurrent censure proceedings. And if the President is censured but continues to pursue warrantless surveillance programs like the NSA’s or the similar, "dark" programs that some officials and whistleblowers have hinted at, the Republicans will have little choice but to accede to impeachment proceedings.
"The voters haven't had the opportunity to weigh in yet. "
ReplyDeleteIncorrect. The voters are already weighing in: It's called: "Calls for impeachment."
The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.
ReplyDeleteThere is no war. Congress has not declared a war and Congress alone has the authority to do so. The framers of the Constitution intended the President to protect the nation from attacks by other nations, not from crazed fundamentalists. The DOJ's logic, taken to the extreme, makes the President responsible for any bar room brawl in Mexico involving a U.S. citizen. I don't think that's what the Constitution intends. And I think it's just as much a stretch to say the President has unlimited powers as a result of terrorism.
Anonymous -
ReplyDeleteI appreciate a cool head in chaotic times as much as anyone. Can you honestly tell me that you aren't a bit concerned at the course of current events? Can you honestly say that the establishment of Camp X-Ray, the frequency and escalation of Extraordinary Renditions, the Administration's refusal to abide to the Geneva Conventions or the US Code (Amended), its refusal to give or allow any manner of honest accounting of developments in Iraq or Afghanistan or elsewhere...can you honestly tell me that all that doesn't make you even remotely nervous at what they may plan or attempt next?
The asserted benefits of the changes to FISA are illusory. Jao "1) The problem with current law is that there is no mechanism to get the contested legal issues before the courts. Specter's bill provides that."
ReplyDeleteThe basis for your assertion is weak. You cite nothing to warrant confidence that there is "no mechanism". There is a clear mechanism: The civil cases against the NSA have already started. The problem is there's no will within Congress to assert the impeachment-related power to investigate and remove the man from office for violations of the law.
. . .
The #2 assertion asserts incorrectly that the existing FISA warrant exceptions in Title 50 do not cover this."2) An overwhelming majority of those debating these issues -- including many, such as myself, who are outraged that Bush apparently has violated existing law -- also say they believe surveilling suspected Al Qaeda operatives is important. And the law apparently needs an amendment to accomplish that legally and feasibly."
This is not supported; rather, the "foreign agent" exception is well grounded to have warrantless surveillance. The problem in this case is that even those exceptions were ignored; and the White House-NSA-DoJ have simply relied on the "we believe that you may be"-standard, which is at odds with the Constitution.
Further, it is a false choice to say that the law as it stands is defective in this regard; it's clear what is an exception to the warrant requirement. If these were bonafide NSA intercepts of "foreign powers/agents" -- as is permissible under the warrantless exceptions -- then there would be no issue. The problem is the statute explicitly requires these exceptions to exist; the Constitution does not grant the Executive power to create more exceptions to the Constitution, especially when it comes to [a] domestic surveillance against [b] Americans who have simply been [c] caught up in the [d] NSA vacuum cleaner.
The issue is that the warrant exception does not permit -- as has the White House done -- self-issuing warrants based on a tenuous-assertion of belief that someone may be talking to someone. That's not an exception, merely an assertion that "we don't know so let's violate the law to find out" -- as was done in Guantanamo.
. . .
As to your claim in 3, not clear what "issue" you're asserting is upon us. You'll have to flesh out your argument.
3) "Whether anyone on this blog likes it or not, the issue is upon us. Competing bills to amend FISA are up for a hearing in the Senate the day after tomorrow. Some bill is going to pass, and the wrong bill could do serious damage to the cause of upholding separation of powers and the rule of law.
The real issue is that Congress -- by its effort to change the law -- accepts the conduct is at odds with the existing law. That is called a crime: Congress was not delegated power to ratify unlawful Executive conduct, nor assent to violations of Article I Section 9 which require funds to be used for lawful purposes; or violations of Article II Section 3 which requires the laws to be enforced, not explained away as inconveniences on the road to dictatorship and unlawfully consolidated power.
Using your argument, the "bills to Amend FISA" are sufficient basis to conclude that the conduct is outside FISA, to be sanctioned not ratified.
We need not assent to power abused; nor to those who unlawfully use military force, power, and technology against their own citizens. Not only is this a war crime, but when this law is violated when engaging civilians, the civilians are not bound to assent or comply with the laws the offending party is ignoring: Namely, the US Constitution.
ReplyDeleteBy engaging in unlawful use of force – as they assert they are doing in this war – under the just war theory those who are victims of this unlawful use of military force and power are not bound by the standards which have been ignored. DoJ’s arguments – in asserting they can do this in times of war – not only is a frivolous argument, but is the legal foundation to conclude The US Government is not serious about the Constitution; neither should the American public. Namely, if the government is not going to protect the Constitution; then we need not recognize the delegated powers or the Constitution that is ignored. They’ve put the Constitution in the trashcan; it is time we put a lid on it, and lawfully revoke the powers they are abusing, and only delegate powers that are going to be respected.
The easy way is to impeach; the hard way is “wait for an election.” Time is up. This crew has failed. The needed solution is a wake up call to Congress: Unless you lawfully assert your power to tame this dictatorship, we’re going to revoke all your power immediately.
Time for a New Constitution. We don’t have to wait until November. If they want to change the FISA and not enforce it, then we have all we need to know that they are not serious about the Constitution: It is time to create a new one outside Article V without a Constitutional Convention -- Here's how this can be lawfully done, and what Congress needs to realize is already happening behind the scenes: [CLick ]
Here's an idea: Why not keep the existing law as it is, enforce that, and impeach the President.
ReplyDeleteWhy are we having a discussion about updating FISA, when the conduct clearly violates the war, "mandating" the change? This is a diversion from needed impeachment.
Further, are we going to "make new changes to FISA" once the rest of the NSA illegal activity -- the rest of the programs Gonzalez doesn't want to talk about -- is revealed? The prescription is to enforce the law, not rewrite the law to ratify a dictatorship.
Tom "that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government"
ReplyDeleteThis government is destructive to the rights of people; we need not consent or assent to an abusive system which refuses to do what should be done. It is not a question of whether things will lawfully change; the question is whether this Federal government will freely assent to what is inevitable, or unlawfully resist it be compelled to assent to the rule of law.
Their oaths are to a document they do not respect; their conduct is at odds with the law; their conduct is without legal foundation; and there is no meaningful interest to do what should be done: Assert the rule of law, compel the offending White House and NSA to assent to the rule of law, and comply with their agreement with We the People: The Constitution.
Rather, they mis-use the law to abuse; and ignore the law to abuse. This government has no legitimacy. Their only option is to do what they've been doing since 2001: Distract attention from what is destructive to our rights: Their incompetence, and their willingness to ignore the law to justify abuse.
We need not assent to that which is devoid of legal foundation and is at odds with our Constitution.
. . .
Glenn,
Your title has an error: "Administration tells Congress (again) - We won't abide by your ' laws' "
The laws are not the laws of Congress; the laws of the laws of We the People -- they are our will. We have not delegated the Executive the power to ignore our Will, nor have we delegated any power to Congress to ratify the abuse of power.
JaO said...
ReplyDelete"My point being threefold;
1) The problem with current law is that there is no mechanism to get the contested legal issues before the courts. Specter's bill provides that.
2) An overhelming majority of those debating these issues -- including many, such as myself, who are outraged that Bush apparently has violated existing law -- also say they believe surveilling suspected Al Qaeda operatives is important. And the law apparently needs an amendment to accomplish that legally and feasibly.
3) Whether anyone on this blog likes it or not, the issue is upon us. Competing bills to amend FISA are up for a hearing in the Senate the day after tomorrow. Some bill is going to pass, and the wrong bill could do serious damage to the cause of upholding separation of powers and the rule of law."
And all of your points are utterly meaningless in the face of an executive that claims to be bound by no law. All anything that is passed will be is another piece of paper to be ignored.
JaO writes:
ReplyDelete"The general notion that mainstream conservative justices are in cahoots with Bush to uphold his exclusive war powers is just silly. Yoo is out of the mainstream, a radical revisionist. But the notion is sometimes floated by wishful wingnuts and paranoid moonbats alike."
I thank you for the detailed response. I hope that you are right. We shall see.
jao said:
ReplyDelete"The public obviously and understandably wants the practical standards to be looser, so long as the Fourth Amendment is not violated. Under Specter's bill, the courts would have the responsibility to determine that any such surveillance program comply with the whole Constitution."
And just how did you determine that the public wants the standards to be looser?
jao said:
ReplyDelete2) An overhelming majority of those debating these issues -- including many, such as myself, who are outraged that Bush apparently has violated existing law -- also say they believe surveilling suspected Al Qaeda operatives is important. And the law apparently needs an amendment to accomplish that legally and feasibly.
You, like Bart start with a false assumption and then try to make a reasonable argument based on it.
No one has any problem with surveilance of suspected Al Qaida operatives, and such screening could be accomplished with the current FISA law as it stands. However suspected Al Qaida operatives are not what is being surveiled here.
What is going on is a massive fishing expedition. The NSA is tapping into main switches and every call that comes into or goes out of the U.S. is being screened by computer. The computer analyses the calls using AI looking for key words etc. Whittling the number down until at some point the most likely are turned over to a live analyst for further evaluation. Reputedly 500 hundred calls are being listened to at any one time. Not because they are supected Al Qaida but to see if they are Al Qaida. It is still a fishing expedition, even at this point.
Fishing expeditions are not, never have been and never should be IMO legal.
jao said:
ReplyDelete"When the public deals with the common-sense proposition that "When Al Qaeda is talking to someone in this country we should find out what they are saying," people just respond affirmatively. I do, and I have been actively blogging in opposition to the illegal surveillance for three months non-stop."
Again you start with a false assumption which negates the rest of your argument. Of course people will agree when the question is worded the way you have it. However that doesn't fit the reality of what is going on.
jao said:
ReplyDelete"In what way? Do you not think people understand that there would be less surveillance of such conversations if the letter of FISA were being followed?"
What do you mean in what way? There is no "in what way"
You said:
"When the public deals with the common-sense proposition that "When Al Qaeda is talking to someone in this country we should find out what they are saying," people just respond affirmatively. I do, and I have been actively blogging in opposition to the illegal surveillance for three months non-stop.
And I said: that isn't what is happening. It is a fishing expedition.
JaO said...
ReplyDeleteGris Lobo,
Do you not trust the courts to disapprove fishing expeditions if they violate the Fourth Amendment?
Fishing expeditions by their nature violate the fourth amendment.
You are still trying to obfuscate the basic question here.
Bush broke the law, he admitted breaking the law and he has said he will continue to do so.
So what makes you think that he will obey any court ruling? He has already said he will continue to break the law.
jao said:
ReplyDeleteAnd, once again, it is the court that would determine whether the surveillance is within the bounds of the Fourth Amendment, or not.
Do you not trust the court to make that determination?
No court is needed to determine whether Bush broke the law. He has already admitted breaking the law and has said he will continue to do so.
As an analogy:
A man breaks into a store. He admits doing so. Instead of taking him to court for breaking the law you want to go to court to determine whether burglary is a crime or not.
jao said:
ReplyDelete"So I ask you again, for the third time, do you not trust the courts to ensure that the surveillance programs they approve do not violate the Fourth Amendment?"
And I will answer for the third time that when an individual has broken the law, admitted to breaking the law, and has said he will continue to break the law, that there is no need to go to court to determine whether the law is legal.
If Bush wants to use as a defense that the law is illegal or that it doesn't apply to him he can do that at his impeachment trial.
"the phrase "fishing expedition" is not in the Constitution."
No kidding, neither is the term electronic surveilance. Or a lot of other terms. But by it's very nature we both know that massive fishing expeditions are not legal under the fourth amendment.
And by the way, in American law the normal method for testing a law is by bringing a case in which the law has been violated before the court.
ReplyDeleteWhat you appear to be doing is to try to exonerate Bush before the fact by having the law reviewed before a case has been brought. And then to add insult to injury you want to amend the law to make what he has done legal after the fact.
It is against the law to pass an ex-post facto law but I'm pretty sure you figure that once it is amended to be legal, that you figure no one will want to impeach Bush for past transgressions that are now legal.
In other words you are trying to get Bush off by doing an end run around the way the law is supposed to work.
You may end up accomplishing your goal but that doesn't mean I have to agree with it.
Congress should repeal the war making authority it granted Bush after 9/11. That is the 'enabling legislation' that this White House relies upon to rationalize all their seizures of power.
ReplyDeleteAnd then, to enforce the point, Congress should withold all funding to run the White House.
There are those, like rh, who believe that we should allow our enemies to destroy us be shielding themselves behind our constituional liberties.
ReplyDeleteThere's also something called the Clear & Present Danger test. Is El Qaeda in fact a clear and present danger to our form of government, a danger so serious that unconstitutional measures are in fact justified by circumstances?
Obviously El Qaeda can be a clear and present danger to American lives. But if we accept the premise that any potential threat to American lives by any extremist group justifies unconstitutional measures, then any excuse for dictatorial behavior becomes possible. We can use the "it's a dangerous world out there" argument to rationalize doing away with the Constitution altogether.
Yes, it is a dangerous world. It always has been(as the framers of the Constitution were well aware)and to some extent it always will be. But then that's the whole point of having a constitution in the first place, to help ensure that we go on ruling ourselves by laws even as we use force to deal with dangerous adversaries.
JaO said...
ReplyDelete"My goal is not to get Bush off the hook at all, but to make a policy change going forward."
You may believe that but the effect will be as I described. Bush will get off the hook regardless of which bill passes if either one does.
"One of these bills, in all likelihood, will pass the Senate. Why you rant about "impeachment" in this echo chamber and fail to support an alternative, the other side will pass the DeWine/Cheney bill, which really does gut FISA."
I make no excuses or aplogies for my rant. Bush is the man that because of his lies is responsible for the death of over 2,300 American soldiers and 17,000 more wounded, many of whom will suffer with those injuries for the rest of their lives. Brothers in arms, the select elite group of combat soldiers who have actually put their lives on the line because we were led to believe that doing so would safeguard our society and preserve our freedoms.
Bush is the man that through his incompetence is responsible for unnecessary deaths during hurricane Katrina.
Bush is the man that has sat back and allowed the invasion of our country. (violating his oath of office that requires him to protect us from that very thing) And because of his violation of his oath we now have hundreds of thousands demonstrating in our streets. People that are here illegally, people that not only shouldn't be here but most certainly shouldn't have the priviledge of demonstrating for rights they have neither earned or deserve.
Bush is the man that has condoned torturing prisoners. Something that not only violates international law but puts our combat troops in further danger in this and any other conflict we may engage in. For if we condone torture ourselves how can we complain about others that may torure our men when they are captured.
Bush is the man that has imprisoned thousands under the flimsiest of charges (only ten of the 300 held in Guantanamo have been charged with anything) in a prison offshore because he believed that it would put them out of reach of the U.S. judicial system. Many imprisoned because he paid a 25,000 dollar bounty for each one turned in by Afghan warlords. How many were turned over not because they have done anything wrong, but for the money? (a large sum in that part of the world).
Bush is the man that has blatantly violated the separation of Church and State by providing federal contract dollars to religious organizations.
Bush is the man that has trashed the Constitution in so many ways that it is hard to believe that this is still the same country that I grew up in.
Bush is the man that has violated the law, has admitted doing so, and has said that he will continue to do so in the future.
So excuse me if I rant but I make no excuse or apology for doing so.
I do not condone or agree with any bill that attempts to turn the law upside down for the benefit of the man that has done all that I have described and more.
A bill that if passed not only turns the legal system on it's head but also IMO violates equal protection under the law statutes.
For if we are to allow review of the law before charging anyone with violating the law in Bush's case are we not obligated to do the same for every criminal that breaks the law.?
Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court.
ReplyDelete"Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening.
Last week, I was unable to respond to a question as to whether this Justice position is justified under the law.
Having done a little research, it appears that Justice is relying upon United States v. Truong Dinh Hung, 629 F.2d 908, 912-17 (4th Cir. 1980).
In Truong, the FBI wiretapped the telephone of a NV agent with the permission of the AG but without a judicial warrant for the purpose of identifying the agent's coconspirators in a plot to send classified documents to NV. After the FBI identified the perpetrators and brought a criminal case to Justice, they continued to wiretap without a warrant.
Justice attempted to introduce the evidence gained by the wiretap and the defense objected on 4th Amendment grounds.
The trial court held that the President's Article II authority over foreign affairs allows him to authorize warrantless electronic eavesdropping to gather intelligence on foreign groups and their agents. Furthermore, so long as the warrantless surveillance is primarily directed towards intelligence gathering like identifying other enemy agents, any evidence incidentally gained during this warrantless surveillance was admissible in court.
However, when the surveillance becomes primarily to gather evidence for a criminal trial, then the surveillance requires a warrant of the evidence is barred by the 4th Amendment.
The 4th Circuit adopted the trial court's opinion in total and the Supreme Court denied cert to review the opinion.
jao:
ReplyDeleteTruong could not possibly have resolved the question about whether the surveillance today is "lawful" under FISA, because Truong was a pre-FISA case.
But of course, bart already knew that. He is just blowing smoke again.
Actually, FISA is not enforcing the 4th Amendment and has no exclusionary provision in the statute, thus any evidence gathered in violation of FISA (to the extent it is constitutionally enforceable) should be admissible unless the courts read an exclusionary provision into FISA>
I had presumed presidential signing statements to signify the executive's view and proposed modus operandi concerning the enforcement of Congrssional laws. Since so many of Bush'e signing statements directly contradict the the spirit and the letter of Congressional laws, what is the legal validity of these statements? Can they be used as a defence against any (possible future?) charge(s) of acting outside the law? Can they be used to define the spirit or refine the letter of statutory provisions? I ask this because the nature of these recent signing statements convey nonacceptance of the laws' provisions by the exceutive yet it signs these laws into statutes rather than seeking to veto and thus refer them back to the Congress for reconsideration. If these signing statements were merely voicing disagreement or displeasure, they probably would not amount to much. The statements, however, are explicit in laying out the executive's intent to ignore them altogether as if the statutes don't actually exist. Who decides on the statements' legal standing? The Supreme Court? Do we wait until we face the crisis?
ReplyDeletesona said...
ReplyDeleteI had presumed presidential signing statements to signify the executive's view and proposed modus operandi concerning the enforcement of Congrssional laws. Since so many of Bush'e signing statements directly contradict the the spirit and the letter of Congressional laws, what is the legal validity of these statements?
Nothing really.
They are the Presidential version of a senator putting a statement into the record. The court has to be really reaching to use either to interpret a statute. The text should control in almost all cases.
In Mr. Bush's case, he is mostly arguing that he is not waiving any Constitutional powers by signing a particular law. However, no court should hold that an individual president can waive a constitutional power of the office..unless the judge is a "living constitution" nut.
Bart keeps saying: international telephone calls from the US to foreign countries where one end is a telephone number captured from al Qaeda
ReplyDeleteWhere is he getting this information that the numbers were "captured from al Qaeda". I highly doubt that. If this were true, wouldn't that be probable cause that would allow a court (especially the very permissive FISA court) to issue a warrant.
The Supreme Court decided in Marbury v. Madison that the Supreme Court has the sole authority to decide "What is Constitutional and What is Not". This includes what are the bounds on Presidential Authority and the concequences of his oath of office "to faithfully execute the office of President of the United States" and to "preserve, protect, and defend the Constitution of the United States".
ReplyDeleteThis issue will inevitably reach the Supreme Court and the court will most likely decide that Bush and the NSA have violated the FISA Statute § 1809 and § 2511. The court will probably also decide that the president when acting as "The Commander in Chief of the Armies and Navies of the US" does not have any inherent authority to violate the law as written by the legislature and interpreted by the courts.
The question then becomes, will Bush obey the court's decision or will he act like Andrew Jackson and defy the court?
Does the war powers act apply only durring times of war?? Speaking of the constitution, only Congress can declare war. The granting of authority to use force is not a declaration of war. Only Congress can declare war. Since Congress did not declare war, we ain't in one and War Powers does not apply. Bush is not a 'War President'. We are not at war. Useing force maybe, but NOT AT WAR AS ONLY CONGRESS CAN DECLARE WAR AND THEY DID NOT>
ReplyDelete