Today, Republican Sen. Arlen Specter, Chair of the Senate Judiciary Committee, vowed to hold hearings on this rather startling (though not exactly new) presidential lawbreaking crisis in our country. According to Savage's article today (h/t CLG):
The chairman of the Senate Judiciary Committee, accusing the White House of ''very blatant encroachment" on congressional authority, said yesterday he will hold an oversight hearing into President Bush's assertion that he has the power to bypass more than 750 laws enacted over the past five years.
''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"
Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.
To recap: a Republican Senator is vowing to hold hearings because the President of the United States has embraced theories which maintain that he has the right to break the law and has, consistent with those theories, been breaking the law repeatedly and deliberately. Maybe some journalists other than Savage and The Boston Globe could tell their readers about that extremely significant fact.
In preparing his story, Savage sought, and obtained, a response from the White House to Specter's announcement, and -- as a good journalist should -- then promptly informed his readers of the false and misleading nature of the White House's claims:
Dana Perino, a White House spokeswoman, said via e-mail that if Specter calls a hearing, ''by all means we will ensure he has the information he needs." She pointed out that other presidents dating to the 19th century have ''on occasion" issued statements that raise constitutional concerns about provisions in new laws.
But while previous presidents did occasionally challenge provisions in laws while signing them, legal scholars say, the frequency and breadth of Bush's use of that power are unprecedented.
Bush is also the first president in modern history who has never vetoed a bill, an act that gives public notice that he is rejecting a law and can be overridden by Congress. Instead, Bush has used signing statements to declare that he can bypass numerous provisions in new laws.
That the President has seized the power to break the law isn't news to everyone. Senator Feingold, for instance, introduced a Resolution to censure the President precisely because he is engaging in ongoing illegal behavior. Sen. Feingold explained at the time what ought to have needed no explanation - that we simply do not have the option of allowing the President to violate the law with impunity if we want to continue to be a country that lives under the rule of law. That move provoked disapproval and even scorn from virtually all of the national press and from most members of the Senate, including those within his own party and from Sen. Specter himself.
But perhaps Specter -- who just last week threatened to cut off funding for the NSA program if the Administration continues its obstruction of Congressional investigations into that program -- has had enough. As Savage pointed out in his article last Sunday: "For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media." Up until now, most people chose to ignore the fact that the President was acting in accordance with these radical theories of lawlessness.
But the more out in the open those theories become, the less possible it will to ignore them. It is hard to imagine even Americans who are apathetic (or, as in Specter's case, craven and meek) expressing indifference over the fact that the President has -- literally and expressly -- declared himself to be outside of, and above, the law.
uuuuuuuuuuuuuuummmmmmmmmmmmmmmmmm
ReplyDeleteyeah......
The guy that invented the "magic bullet" theory that was used as the foundation of Warren Commission.
Great, no wonder ABC, History Channel, and the MSM have been pushin' "computer analysis" that "prove" the bullet did indeed perform those contortions.
Yup, time for another White Wash.
Trojan Horse:
ReplyDeleteThe term comes from the a Greek story of the Trojan War, in which the Greeks give a giant wooden horse to their foes, the Trojans, ostensibly as a peace offering. But after the Trojans drag the horse inside their city walls, Greek soldiers sneak out of the horse's hollow belly and open the city gates, allowing their compatriots to pour in and capture Troy.
I love your optimism Glenn and Charles Savage is spectacular.
But isn't one definition of insanity to keep doing the same thing over and over and expect a different result?
We keep trusting Arlen Specter over and over (as you have pointed out) yet we always get the same result: betrayal at the last minute.
Is there any reason to expect that same thing won't happen here?
Nevertheless, I'm enough insane to keep hoping :)
But perhaps Specter -- who just last week threatened to cut off funding for the NSA program if the Administration continues its obstruction of Congressional investigations into that program -- has had enough.
ReplyDeleteMore likely that Arlen Sphincter did not get ENOUGH!!!!!!!!!!!!!!
Maybe they will set him up with some young boys or gannon/guckert at the Watergate. Perhaps they will toss some more money in his "war chest."
He will continue to posture and distract and then hold more faux hearings.
The absence of "Traditional Media" reporting of this story is, in some ways, even more startling than the reporting on the WMD story.
ReplyDeleteThis is a curious case, Glenn. On the one hand, I absolutely agree that there needs to be some consistency of interpretation. "Original intent" becomes meaningless when everybody gets to create their own; moreso, when the President gets to declare which parts of a law do or do not apply to him.
ReplyDeleteBut the curious thing is why this has become an issue now. Certainly, Bush has utilized the signing statements more than previous Presidents. But if it is -- or ought to be -- illegal/unconstitutional/etc in the first place, why do sheer numbers matter? If it's illegal to do it 500 times, it's illegal to do it once. If it's legal to do it once, why is it illegal to do it 500 times?
All that to say: why now? And why not previously?
We keep trusting Arlen Specter over and over (as you have pointed out) yet we always get the same result: betrayal at the last minute.
ReplyDeleteOh, I should have made clear - like I do every time I have to utter his name - there is nobody I trust less than Arlen Specter. I gave up placing any hope in him way back. He makes little noises pretending to have some dignity and autonomy and always - really, always - falls more obediently into line between the White House than anyone else.
Nonetheless, the fact that hearings are being held on the President's lawbreaking powers - in general, not just re: the NSA scandal - is significant, and the fact that a member of his own party is convening those hearings is more significant still.
Our government and media institutions are broken and, for now, won't and can't do anything meaningful against the Administation. We know that. But, at least in my view, Americans still constitute a real check on abuses of power, and the more the president's lawbreaking is talked about and in the open, the more likely it is that there will be accountability. That's why these hearings are a good thing.
They won't result in any blockbuster developments - but the more of these proceedings, investigations and debates there are, the better. When the NSA scandal broke, you couldn't get anyone to talk about the fact that this administration has claimed broad powers to break the law. Now, it's the subject of major newspaper exposes and hearings convened by a Republican Senator. That's progress.
All that to say: why now? And why not previously?
ReplyDeleteIn my view, there are 3 principal reasons:
(1) The power to ignore laws isn't just theoretical - they have used these theories to justify actual and deliberate violations of laws (including laws against warrantless eavesdropping, procedure-less detentions of American citizens, and the use of torture), and have - outside of the signing statement - made clear that they reserve the right to engage in conduct which particular legislation prohibits, even criminalizes.
(2) The signing statements have to be viewed in context - the administration is not just issuing boilerplate signing statements, but are asserting these theories of "law-ignoring" powers in Congressional hearings, judicial proceedings, and public debates -- these powers are a central component of their approach to governance and therefore require real debate and exmamination.
(3) Frequency matters. They do not just invoke this theory in those rare and extraordinary cases where there is a serious checks-and-balances dispute over which branch can exercise which power. When such disputes are rare and isolated, they do not threaten the core of our system of government.
This administration invokes this power as a matter of course, becasue they believe that not just with respect to specific legislative mandates, but as a general proposition with regard to all matters broadly relating to national security, that all Congressional "interference" is inherently improper and they have the power to ignore it.
That is an unprecedented state of affairs for our country and has no real precedent, at least no recent precedent.
To recap: a Republican Senator is vowing to hold hearings because the press finally brought up the story. It's akin to feeling sorry that you got caught, not that you did the nefarious act for which you were wanted.
ReplyDeleteNo illusions here that Mr. Specter didn't know any of this was going on.
I heard there is collusion between Specter and Glenn Greenwald. And, that these hearings Specter allegedly will hold are nothing more than a promotional gimmick for Greenwald's book.
ReplyDeleteIn the end, as per usual, Specter will not swear-in witnesses, and hearings wil be sham.
Specter has agreed to mention Greenwald's book during the hearings and he will receive a kickback from book sales. Greenwald and Specter walk away multi-millionaires, while the U.S. declines into chaos.
Just kidding. :-) I bought the book.
Addendum: How have all those other "hearings" worked out in the past?
ReplyDeleteexactly. Pull the other one, Senator.
Glenn:
ReplyDeleteSpecter to hold hearings on Bush's lawbreaking powers
Huh? What exactly are "law breaking powers?" Either Mr. Bush has the Article II powers which he claims or he does not. If he does indeed have these powers, then the statutes at issue are unconstitutional and no law has been "broken."
So far, neither the Boston Globe articles you have been citing nor your own posts show that the President does not have these powers. Indeed, both of you seem to studiously avoid addressing this question.
Why is that?
Instead, without a scinitilla of evidence, you keep slandering the President by repeatedly accusing him of "lawbreaking" on the basis that he has given Justice's legal opinions on various bills in attached as signing statements.
Since when is rendering a legal opinion the equivalent of "lawbeaking?" If so, you and I are in serious trouble.
In preparing his story, Savage sought, and obtained, a response from the White House to Specter's announcement, and -- as a good journalist should -- then promptly informed his readers of the false and misleading nature of the White House's claims:
Dana Perino, a White House spokeswoman, said via e-mail that if Specter calls a hearing, ''by all means we will ensure he has the information he needs." She pointed out that other presidents dating to the 19th century have ''on occasion" issued statements that raise constitutional concerns about provisions in new laws.
But while previous presidents did occasionally challenge provisions in laws while signing them, legal scholars say, the frequency and breadth of Bush's use of that power are unprecedented.
Bush is also the first president in modern history who has never vetoed a bill, an act that gives public notice that he is rejecting a law and can be overridden by Congress. Instead, Bush has used signing statements to declare that he can bypass numerous provisions in new laws.
Huh?
Exactly how was Ms. Perino's statement in any way misleading? Rather, it was the reporter who is being misleading by erecting and knocking down a strawman.
Perino correctly observed that Presidents have occasionally used signing statements since the 19th century. Then the reporter observes that Mr. Bush has used them more than previous presidents, even though Perino never said anything concerning this fact.
But perhaps Specter -- who just last week threatened to cut off funding for the NSA program if the Administration continues its obstruction of Congressional investigations into that program -- has had enough.
Should anyone care? Specter is chairman of the Judiciary Committee and has no jurisdiction over intelligence gathering nor the clearance to receive this information.
You are being very misleading by claiming that Congress has not been fully briefed by the Executive on this program. The Intelligence committee leaders have been briefed from the outset and the new NSA Program subcommittee has received dozens of hours of briefings by Justice and NSA and had hundreds of questions answered.
Not a single briefed member of Congress claims that this program is illegal.
If Arlen Specter is going to hold hearings into lawbreaking, I hope he intends to identify the Mob Bosses who are behind all the lawlessness.
ReplyDeleteFor another piercing article on those Mob Bosses (also known as The War Party):
http://antiwar.com/justin/
"War With Iran? It would mean the end of our Republic"
Seems the real problem is the same one that has kept, according to one recent article, Sen. Feingold's Presidential possibilities from "taking off".
Money.
Why does Bill Gates think that immunizing third world children is a substitute for preserving our Constitutional Republic?
Does he plan to raise his own children in another country?
(I just posted this on the wrong thread by mistake so I reposted it here.)
Spector has a history of talking a good game and then wilting at crunch time.
ReplyDeleteUntil I see evidence otherwise, I will continue to believe that there are no good Republicans.
John Emerson
Glenn writes But, at least in my view, Americans still constitute a real check on abuses of power.
ReplyDeleteThat's it exactly, which is why I think you wrote your book.
It's up to Americans.
I wish Specter would mention Glenn's book at the hearings.
It might be the only valuable thing he's done since he first got in office.
BTW, Ethics Question posed to long time bloggers:
What happens if a commenter writes someone very laudatory about a person whose views the commenter thinks he endorses and then he finds out differently after more exposure to those views?
Is the commenter supposed to issue a retraction? If not, will someone come back in the future and say "But you wrote that you loved that person, etc. etc." and discredit any new opinion you might have about someone else?
What do other people do about this problem?
That is an unprecedented state of affairs for our country and has no real precedent, at least no recent precedent.
ReplyDeleteThe difference is one of degree, though, and not of nature. As far as I can tell, what you're saying is that "the new boss is the same as the old boss....but moreso." That it's been like this for a long time, but now it's getting out of hand. A little lawbreaking is one thing, but now the Executive branch is taking it too far.
From a pure political stability and public choice perspective, I can see the merit in that argument. From a principled perspective, though, it seems a lot like people saying "ok, blowing 5 stoplights in one day is one thing, but 25 is a crime."
That doesn't give me a lot of confidence that we're actually going to clearly define the separations of power involved. Just that we'll ask the President to keep the volume down.
Uh Bart, this post is about Bush's "signing statements" where he signs a law and then says I've got my fingers crossed so the law doesn't really mean what it says. Specter is not upset about the spying on Americans, he's upset about the erosion of the balance of power between the 3 branches of government. Obviously your deep seated hatred of Glenn Greenwald and all the goodness he represents has clouded your apprehension of these simple facts and you believe this is about the NSA and ATT. That was last week. New talking points please, maybe something about how James Buchanan ignored any laws he wanted to...
ReplyDeleteJon Henke writes: The difference is one of degree, though, and not of nature. As far as I can tell, what you're saying is that "the new boss is the same as the old boss....but moreso." That it's been like this for a long time, but now it's getting out of hand. A little lawbreaking is one thing, but now the Executive branch is taking it too far.
ReplyDeleteNo, it really is a difference of nature. Frequently people will point out that the President is justified in refusing to enforce laws he deems to be unconstitutional, and that is so, as none other than Antonin Scalia has stated. But what that means is if Congress, say, passed legislation purporting that it could appoint and remove all of the Executive's cabinet secretaries, any Executive would be justified in ignoring that. It is patently unconstitutional, and there is no serious argument to be made otherwise.
What Bush is doing is different. He is arguing that hundreds of statutes become unconstitutional only when he feels inclined, in the name of national security, to ignore them on an ongoing, institionalized basis. They are not unconstitutional on their face, or as applied to anyone else. The radical claim he is making is that if Bush wants to ignore any law that remotely pertains to national security, his wish renders the statute unconstitutional by virtue of thwarting his will. He thereby becomes the lawmaker, and not the law-enforcer.
In effect, what he is doing is eviscerating Congress of any legislative authority in any area that touches and concerns national security. The federal courts will never uphold such a notion -- which destroys separation of powers as established by the Founders -- and that is why the Bush Administration moves heaven and Earth to keep its theories from judicial review. Congress and the Executive, as the SCOTUS has said, share constitutional authority in the area of national security, but Bush is extinguishing the authority of Congress. That cannot be allowed to stand.
election year politics, Warren Commission style
ReplyDeleteDear Glenn,
ReplyDeleteThanks once again for your insightful posts and commitment to our Constitution and Bill of Rights. I don't contribute often or much in terms of content to the comments, but I read you daily, send links to your site to friends, and appreciate not only the quality of what you post but also the quality of many of those comments by folks who do respond.
What's amazing is to see the defense of this legal theory from "conservatives".
ReplyDelete>What's amazing is to see the defense of this legal theory from "conservatives<
ReplyDeleteWhich is why I share Glenn's hope that this is a sign of more Republican involvment with this issue.
As I've stated before, if it were a Democrat engaged in this sort of power grab IT WOULD BE JUST AS WRONG!
Cross-posted at The Disenchanted Idealist
ReplyDeleteI don't get it. If I were, say, the CEO of some big media corporation other than FOX, and I saw that Bush was on the verge of going down in flames, and if I also saw that none of my competitors were taking advantage of it, I'd see a huge business opportunity: be the one network/newspaper/whatever that Americans could trust to actually verify (or disprove) Bush's statements, whose editorialists/hosts/whatever would actually be proved correct by history once Bush's approval drops below 30%. Think about it. ABC (or whoever) could brag for the next 30 years about bringing down Bush the same way that the Washington Post is still bragging about bringing down Nixon. If I were at the NYT, I'd be embarrassed that untrained bloggers were doing better journalism than my own employees and see the danger up ahead.
Are the media so scared of Rush Limbaugh and the FCC that they can't act in their own long-term interests? Are they so squeezed financially that they can not afford to take the short-term risk? Or are they just blind?
If the Democrats take back Congress, it would be interesting to see if they could pass a law forbidding/limiting the power of these signing statements.
ReplyDeleteThen maybe Bush would have to veto!
Talk about exploding heads.
NobodySpecial said...
ReplyDeleteBart: Huh? What exactly are "law breaking powers?" Either Mr. Bush has the Article II powers which he claims or he does not. If he does indeed have these powers, then the statutes at issue are unconstitutional and no law has been "broken."
It is not the duty of the President to interpret the laws. It is his duty to follow them.
The President has no duty whatsoever to follow a law which either unconstitutionally exceeds Congress' Article I powers or unconstitutionally infringes upon the President's Article II powers. Such a law is null and void.
Let's say Congress passes a law which declares that law enforcement should execute you on sight. Should the President enforce that law pending a Court ruling?
If he does indeed have these powers, then he would have speedily put forth that argument before the courts.
Once and for all - THE COURTS ARE BARRED BY THE CONSTITUTION FROM RENDERING ADVISORY OPINIONS...PERIOD. There is no case in controversy for the courts to decide until the President interprets a statute as unconstitutional and then acts to violate that statute and in doing so injures a citizen.
Brian McCaffrey said...
ReplyDeleteBart: Huh? What exactly are "law breaking powers?" Either Mr. Bush has the Article II powers which he claims or he does not. If he does indeed have these powers, then the statutes at issue are unconstitutional and no law has been "broken."
So far, neither the Boston Globe articles you have been citing nor your own posts show that the President does not have these powers. Indeed, both of you seem to studiously avoid addressing this question.
Why is that?
Brian: Bart, the central organizing priciple of Glenn's blog has been to refute the Administration's postion that Article 2 and the AUMF give POTUS unique powers to break the law, or "law breaking powers" as you put it. He has done so clearly and completely in a series of posts readily accessible to the blogosphere, check the archives if you have a moment, start in January and just keep reading.
Glenn is bringing up a new subject - the statutes to which Mr. Bush has attached signing statements which argue that the President's Article II powers trump some provision in that statute.
Glenn claims that this somehow amounts to "lawbreaking."
However, Glenn declines to make a supported legal argument as to why even one of Mr. Bush's signing statements misinterprets the Constitution.
A couple days ago, I reposted 10 of these statements as provided by the Boston Globe and described the legal constitutional basis for each.
No one here had a legal argument in rebuttal.
Either put up a legal argument or shut up with the lawbreaking slanders.
Here's Andrew Sullivan, on Glenn's hero, Juan Cole.
ReplyDeleteI don't find it surprising that a Republican Senator is going to hold hearings on this. What better way to claim the issue has been put to rest than to express 'serious concerns', hold hearings where witnesses who are not under oath can be praised for the great job they are doing pertectin us from terrists, then conclude that everything is ok. It would be much worse for them if they stonewalled and let administration critics drive the story. This way the hearings become the story and when they reach their inevitable conclusion, that's the end of the issue for anyone but the moonbats.
ReplyDeleteThis is now a tried and true technique take control of a potentially damaging issue and whitewash it. I'm done playing Charlie Brown to Spectre's Lucy.
By the way, I read an article yesterday in which Specter was compared to Churchill for his courageous stands against the President. I wish I could remember where I saw it. I can't find it now. It killed me.
ReplyDeleteIf the Democrats take back Congress, it would be interesting to see if they could pass a law forbidding/limiting the power of these signing statements.
ReplyDeleteThat would probably take a constitutional amendment. Which should also include a clarification of Article II and the separation of powers. And we'd have to use the Constitutional Convention route(for the first time ever), because the Rubber Stamp Republican Congress would never pass such a thing with the required two thirds majority.
Actually that's a pretty cool idea - someone should start agitating for a Constitutional
Convention. It would be a cool way to drive a wedge between the states rights libertarian wing of the Republican party and their current Neocon overlords.
JaO writes: It is not the signing statements that matters; it is actual violation of particular statutes (if and when such violation occurs).
ReplyDeleteI completely agree with that. Signing statements are neither here nor there, if their only purpose is that envisioned originally by the young Sam Alito, namely, to manufacture some Executive equivalent of legislative history for the judiciary's consumption.
But in light of Bush's radical theories of Executive power, they take on new meaning as an announcement of his expansive application of those theories. Otherwise, really, no one need give a fig about signing statements, and on their own, and as his predecessors also employed them, they just don't bother me. Ditto for Bush's embrace of the "Unitary Executive" theory. That isn't the problem here. The problem is Bush's evisceration of the constitutional authority of another branch, not the Executive's protection of its powers of appointment and such.
Bush is claiming law-breaking power that Youngstown squarely forecloses, and which Justice Jackson said if permitted, would be a step toward dictatorship. The Executive must be held to the rule of law, even when national security is involved, and even when we are at war; otherwise, the Executive is not distinguishable from a monarch. That is what the "moonbat" Robert Jackson wrote.
Bart, what part of 'I'm the President and I can do anything I want because I'm Commander-in-Chief [of the armed forces, not the country] and we're in a war [that I started by lying my a** off]' is in the Constitution? He took an oath, in front of the world, his hand on the Bible which he's so respectful of, to faithfully execute the laws and preserve and defend the Constitution. A signing statement that amounts to 'I don't like this law so I'm going to sign it and then ignore it' doesn't exactly fit with that oath, does it?
ReplyDeleteIt is not the signing statements that matters; it is actual violation of particular statutes (if and when such violation occurs).
ReplyDeleteAnd how do we know if an actual violation has occurred?
Let’s say the president directs the FBI to ignore provisions of the Patriot Act consistent with his signing statement. How would we know?
The FBI’s Mueller said he saw no reason the FBI could not share how they were enforcing the Patriot Act with Congress. He then added a “BUT” :
But he also said that he was bound to obey the administration, and declined to promise that he would ''go out there and fight" on behalf of Congress if Bush decided to override the Patriot Act's oversight provision and ordered the FBI not to brief Congress.
How do we know Bush hasn’t already done that? Would Mueller tell us? He just said he must obey Bush, and if he did, wouldn’t that mean that we wouldn’t know if the FBI was directed to violate the Patriot Act?
And then Mueller added this: ''I can assure with you with regard to the FBI that our actions would be taken according to appropriate legal authorities."
What the heck does that mean? Who is that legal authority? Bush? He’s obligated to obey Bush, so what legal authority would he go to if Bush ordered him to violate the Patriot Act and not tell anyone?
kovie said...
ReplyDeletebart said: The President has no duty whatsoever to follow a law which either unconstitutionally exceeds Congress' Article I powers or unconstitutionally infringes upon the President's Article II powers. Such a law is null and void.
If congress passes a law and the president believes it to be unconstitutional, he can either veto it or observe it. He has no other legal choice.
Yes, the President may simply ignore the unconstitutional law.
There are no penalties for ignoring an unconstitutional law.
For example, let's say Congress passes a law making Arlen Specter the Commander in Chief of the military and makes it a felony crime for Mr. Bush not to hand over the nuclear launch suitcase to Mr. Specter. Mr. Bush tells Mr. Specter to take a hike when he comes to the White House for the nuclear launch suitcase. Mr. Specter files criminal charges against Mr. Bush for violating this statute. When the Court finds the statute unconstitutional, Mr. Bush is not subject to any criminal penalties for ignoring the unconstitutional statute.
Indeed, because the President swears and oath to uphold the Constitution, he is duty bound to ignore unconstitutional laws.
What Constitutional authority is inherent in a “signing statement”?
ReplyDeleteDoes the President, by issuing said statement, exclude himself from the confines of the Law?
Has this “signing statement tactic been tested judicially?
From my understanding, the President is not only responsible for executing laws, but is also subject to them. It seems that the “signing statement” is a defacto line item veto. I mean to accept the parts he likes and dismiss the inconveniences. Has that already been found to be an Unconstitutional usurpation of Congressional Authority?
The problem here, as in all areas of this Presidency, is oversight and review. If these theories were actually tested – I don’t see how they could pass any Constitutional scrutiny.
Jon Henke’s point about frequency is quite valid. If the tactics were legal and this President was just much more egregious in his uses, I don’t see the problem.
The problem is that the Executive branch is declaring superiority over the democratic system of governance—It is antithetical to constitutional dicta.
Where is the checks and balances?—where is Judicial review?
Another problem with lapdog one party rule.
This comment has been removed by a blog administrator.
ReplyDeleteCato just released and excelent paper on the Constitutional disaster that is the Bush administration. Hard to dismiss Cato as a bunch of left-wing moonbats, huh?
ReplyDeletehttp://www.cato.org/pub_display.php?pub_id=6330
Glenn:
ReplyDeleteOur government and media institutions are broken and, for now, won't and can't do anything meaningful against the Administation. We know that. But, at least in my view, Americans still constitute a real check on abuses of power, and the more the president's lawbreaking is talked about and in the open, the more likely it is that there will be accountability.
This is a bit off-topic. I agree that holding hearings is a step in the right direction. In fact, thanks to people like Glenn and Charlie Savage I think we're well on our way to overcoming the threat to US democracy brought about by the combination of Bush and 9/11. The hard part (as any psychologist will tell you) is to come to terms with and properly articulate the problem. Actually implementing a solution is comparatively easy.
But really worries me is this: What would have happened to us if we had another 9/11 style attack in 2005, and then yet another under (say) a Democratic president in 2009? I don't think Bush's low approval ratings would have occurred if Americans still thought they were under threat. Heck, if I had been living in the US on 9/11 I might have counted myself as one of the 80% peak Bush backers back in late 2001. Many of you commenters probably did.
In other words, in addition to fending off the current Republican attacks on democracy itself, are there things that could/should be done to avoid a repetition of these attacks the next time Americans start fearing for their lives?
Perhaps this is where multilateralism and the "international community" comes in.
Bart, evidently thinking the world works according to right-wing talk-show rules, said:
ReplyDeleteEither put up a legal argument or shut up with the lawbreaking slanders.
I'll do neither. And you'll like it.
You keep making your own "Article 2" argument as to why Bush can break the law. If you were AG there'd be a reason to answer you. As it is, your pet theory isn't being used by anyone but you, (except as a vague fall-back position--which they arrived at as they ran out of other excuses--but even then they never staked anything on it, just mentioned it.)
But as you say, either the POTUS has these powers, or he doesn't. You assume he does, and go from there. But he doesn't. So he's breaking the law left and right, and will be slapped down either by congress ahead of time, or the courts afetr ward. If it comes to the courts, Bush will wish congress has stepped in and saved him from his own hubris.
End of story.
I think this is what they call in PR "getting in front of an issue."
ReplyDeleteWhite Wash. Trojan Horse. Rope-a-dope. Playing possum. The Ol' Buff N' Bluff.
Bart said:
ReplyDeleteYes, the President may simply ignore the unconstitutional law.
There are no penalties for ignoring an unconstitutional law.
Lets say congress makes a law barring the executive from spying on Americans as part of its Article 2 charge to protect. Suppose the Prez violates this law, and sites any # of reasons why he can do so. When charges are filed against the prez, and the courts rule he broke the law, and sweep all his excuses aside, including one put up by a junior counsel from CO, the prez gets frog-marched out of the building.
And you can take that to the bank.
Richard said...
ReplyDeleteCato just released and excelent paper on the Constitutional disaster that is the Bush administration. Hard to dismiss Cato as a bunch of left-wing moonbats, huh?
It's not hard to dismiss them as a bunch of righ-wing nutjobs, though.
Laws are deemed to be constitutional until the courts rule otherwise. It is not the president's job to substitute his own judgment about the constitutionality of laws for that of the legislative branch which passes the laws.
ReplyDeleteIf the president truly believed in the co-equality of the three branches, he would have the integrity to veto those bills he believes are unconstitutional, and let the courts render a decision.
The rampant use of signing statements is a clear indication that he does not trust that the courts would uphold his interpretation.
From article II
ReplyDelete>Before he enter on the Execution of his Office, he shall take the following
Oath or Affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of
President of the United States, and will to the best of my Ability, preserve,
protect and defend the Constitution of the United States."
Section 2
The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States.<
Yep, it sure says he can ignore a law that's been on the books for 30 years, because the body that's entrusted with the solemn duty to declare a state of war shouldn't be in a position to actually control any aspect of our national securty apparatus.
So says the bart/dog!
Bart, I don't understand your example.
ReplyDeleteOnce a bill has been passed by both houses of Congress, it doesn't become law until signed by the President. It won't become law if vetoed by the President unless Congress overrides the veto. Why wouldn't the President just veto a law which is blatantly unconstitutional (because only the President can be the Commander-in-Chief)?
I think that's part of the issue here. What's stopping the President from simply vetoing laws he feels are unconstitutional? Even though this President and Congress were in lockstep, was he seriously concerned about an override? IMaybe I'm overreaching, but it appears the President and this Congress are colluding to write and pass laws that the President in particular has no intention of following. I must agree with jao, hypatia, and those other posters who believe that this is clearly meant to avoid judicial review, and to fool the American people into believing that Congress and the President are diligently passing laws that they intend to follow. Insane.
There's something else Bart seems to have difficulty absorbing:
ReplyDeleteFISA has *not* been ruled or deemed "unconstitutional" by any Court at any level. Indeed, there is not (to the best of my knowledge) a single case pending that addresses the statute's constitutionality.
Ergo, until the Courts rule otherwise, it remains the law of the land, and thus by definition 'constitutional'. Arguing the other way, no matter how passionately, doesn't change this simple, fundamental fact.
What a simple concept, eh? Wonder why a lawyer has so much difficulty with it.
Ah! The good old days. Good times, eh?
ReplyDeletePapers released on January 1, 2006 from the British War Cabinet have shown that, as early as December 1942, the Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution with the use of an Act of Attainder to circumvent legal obstacles, and was only dissuaded from this by pressure from the U.S. later in the war. In late 1943, during the Tripartite Dinner Meeting at the Tehran Conference, Stalin proposed executing 50,000-100,000 German staff officers. Not realizing that Stalin was serious, Roosevelt joked that perhaps 49,000 would do. Churchill denounced the idea of "the cold blooded execution of soldiers who fought for their country." However, he also stated that war criminals must pay for their crimes, and that in accordance with the Moscow Document, which he himself had written, they should be tried at the places where the crimes were committed. Churchill was vigorously opposed to executions for political purposes. [1] [2]
Which table do you want to sit at during the next incarnation of the Nuremburg trials and the Subsequent Nuremberg Trials when this game of musical chairs and mockery of the law comes to an end, defense or prosecution?
There have always been a variety of elements of the law that are morally ambiguous. Dickens said the "law is a ass". The law is also full of asses.
Oh, and Bart? Unless you're prepared to transcribe and defend ALL 750 signing statements President Bush has put his name to, don't cherry-pick 10 and expect the rest of us to be impressed.
ReplyDeleteFriendly advice.
In the 60's we used to call what Specter "the genuflector" is doing "co-opting", though in this case it's not quite that, since Specter intends to do nothing but make a little show.
ReplyDeleteWhat's stopping the President from simply vetoing laws he feels are unconstitutional?
ReplyDeleteApparently nothing. Is this president going to overturn/ignore Marbury v. Madison and reverse 200 years of American jurisprudence?
But the curious thing is why this has become an issue now. Certainly, Bush has utilized the signing statements more than previous Presidents. But if it is -- or ought to be -- illegal/unconstitutional/etc in the first place, why do sheer numbers matter? If it's illegal to do it 500 times, it's illegal to do it once. If it's legal to do it once, why is it illegal to do it 500 times?
ReplyDeleteAll that to say: why now? And why not previously?
Jon, I don't recall if this appeared in either of his articles but on Countdown, Savage told Keith Olbermann that a major difference is previously signing statements had an acceptable rationale (like finding an aspect of the law in opposition to a SCotUS ruling) while many of Bush's signing statements run in opposition to what has been established as constitutional/unconstitutional.
HWSNBN sez:
ReplyDeleteA couple days ago, I reposted 10 of these [signing] statements as provided by the Boston Globe and described the legal constitutional basis for each.
No one here had a legal argument in rebuttal.
Clue for you, troll: Repeated assertion is not "argument", much less "legal argument". Most people consider "Because I said so. I SAID so, didntcha hear me?" to be rather weak rhetoric. Here's an example of your "argument":
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
Every President has limited reporting of intelligence gathering to the Congressional intelligence committees or as subcommittee thereof. Congress on both sides of the aisle leaks like a seive.
Dec. 30: When requested, scientific information "prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."
Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.
Ditto.
Now that last one was truly astounding in its depth and perspicacity, eh? I also note the copious cites to supporting cases, and the absense of any logical fallacies such as the "tu quoque" fallacy.
Is it any wonder that the mere average legal intellects here couldn't manage a rebuttal to that fine "argument"? Guess that's why pretty much no one responded although I'll admit I did ... a fact you ignore here, you bloviating troll).
*/SNARK*
Cheers,
Bart said:
ReplyDelete"However, Glenn declines to make a supported legal argument as to why even one of Mr. Bush's signing statements misinterprets the Constitution.
A couple days ago, I reposted 10 of these statements as provided by the Boston Globe and described the legal constitutional basis for each.
No one here had a legal argument in rebuttal."
I didn't see them. I'm sure you cherry picked them to support your argument, but just to be thorough which thread did you post them on?
The McCain torure amendment and the Presidential signing statement:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
However, Article I Section 8 of the U.S. Constitution gives Congress the sole authority to make Rules for the Government and Regulation of the land and naval Forces.
Cato right-wing nutjobs?
ReplyDeleteI'll buy that, but non-partisan?
Bwahahahaaaa! Don't! It hurts to laugh that hard.
Though officially non-partisan, Cato is heavily linked to the Republican Party and the conservative movement in general. The large donors who fund both Cato and Republican candidates include Fed Ex founder Fred Smith, Australian-born media tycoon and Fox CEO Rupert Murdoch, tobacco-maker Phillip Morris, the John M. Olin Foundation, and Charles Koch. Cato also draws its staff largely from a Washington DC-based pool of Republican writers and lobbyists.
This is despite the fact that Cato frequently differs with Republican Party positions. Only a small minority of Republicans subscribe to Cato’s laissez-faire economic policies, as evidenced when the Republican controlled Congress refused to even consider President George W. Bush’s 2005 proposals to partially privatize Social Security, an idea strongly backed by the Cato Institute.
How strongly? Guerilla strength...
The Cato Institute has been a long-time advocate of Social Security privatization. A chief early architect of Cato's thinking on private accounts was Peter J. Ferrara. The Washington Post's Thomas Edsall wrote in February 2005: "The emergence of the center-right phalanx backing the Social Security proposal is a major victory for the Cato Institute, a prominent libertarian group. In the late 1970s and early 1980s, Cato was almost alone in its willingness to challenge the legitimacy of the existing Social Security system, a politically sacrosanct retirement program. Recognizing the wariness of other conservatives to tackle Social Security, Cato in 1983 published an article calling for privatization of the system. The article argued that companies that stand to profit from privatization -- 'the banks, insurance companies and other institutions that will gain' -- had to be brought into alliance. Second, the article called for initiation of 'guerrilla warfare against both the current Social Security system and the coalition that supports it.'" [2]
The Cato clowns are just fascists in the classical sense, fascism as the marriage of business and government. That they use the cover of laissez faire capitalism and and mini-statism to achieve their rip-offs is just brilliant "guerilla warfare". They need to keep up appearances to get their "libertarian" street cred back and as soon as the windfall of social Security is within their grasp, they will revert back to the fascists they always have been.
Sometimes, however, it has proven willing to set aside its libertarian principles - such as supporting a Bush administration moves to restrict civil liberties as part of the war on terror. In 2002, a Cato news release endorsed new Justice Department guidelines giving greater latitude to FBI agents to monitor Internet sites, libraries and religious institutions. "As reported in the press, the new FBI surveillance guidelines present no serious problems," declared Cato legal affairs analyst Roger Pilon, a former Reagan administration official who writes frequent Cato commentaries defending property rights and opposing affirmative action that have appeared in publications such as the New York Times, Washington Post, Wall Street Journal, and the Los Angeles Times. Pilon added that "law enforcement monitoring of public places is simply good, pro-active police work that violates the rights of no one."
The farther to the lunatic fascist fringe the right goes, and they are so close to the edge, half of them have already fallen off, the more the Democratic party becomes the new Republicanism. It's going to bbe a landmark and watershed year, for both parties.
The more this issue gets put before the public the better. Once the majority of Americans understands what is going on, I have to believe that they will not find Bush's actions acceptable.
ReplyDeleteAs we have seen since the NSA spying issue has been exposed, there are many Republicans who do not want the Office of President to have unlimited powers and have spoken out against it. Unfortunately, not enough of those speaking out are in Congress. Hopefully, at some point the people will actively press them to faithfully execute their oath of office and oversight responsibilities.
Kovie said:
ReplyDeleteLots of obvious stuff. Thanks for doing it, and feel free to keep it up. Glenn has explained this to bart til he's blue in the face and Bart refuses to comprehend it. thats why Glenn simply ignores Bart anymore--which bart hates--thus the tough talk.
But its always good to see somebody who knows what they're talking about take bart on and remind him again why his legal opinions are so wrong.
I made the "legislation against signing statements" comment with tongue firmly in cheek. However, and I admit that I am no scholar of constitutional law, it seems that they are part of the problem. Thus my suggestion that Congress (one that respects the separation of powers, anyway) should attempt to defang those statements somehow.
ReplyDeletekovie:
ReplyDeletebart said: There are no penalties for ignoring an unconstitutional law.
Yes, there are. It's called impeachment. If the president fails to do this:
Impeachment proceedings based on narrow partisanship are null and void on their face and carry no legal weight.
Anne said...
ReplyDeleteLaws are deemed to be constitutional until the courts rule otherwise.
Novel legal doctrine. Do you have any precedent for this?
If the president truly believed in the co-equality of the three branches, he would have the integrity to veto those bills he believes are unconstitutional, and let the courts render a decision.
1) The President only objected to parts of the bills to which he attached signing statement and appears to supported the presumably constitutional remainder of these bills because he signed them.
2) If a President vetoes a bill because he thinks it is unconstitutional, the Courts do not review it.
The rampant use of signing statements is a clear indication that he does not trust that the courts would uphold his interpretation.
The purpose of signing statement is to inform the Courts of the President's legal position in case they do review the bill.
JaO writes: It is not the signing statements that matters; it is actual violation of particular statutes (if and when such violation occurs).
ReplyDeleteHYPATIA: I completely agree with that. Signing statements are neither here nor there, if their only purpose is that envisioned originally by the young Sam Alito, namely, to manufacture some Executive equivalent of legislative history for the judiciary's consumption.
To be clear - I agree with both JaO and Hypatia - what matters is not the issuance of the signing statement itself, but the fact that it constitutes yet more evidence of the administration formally asserting its view of the world - that in all matters relating to national security and terrorism, the president has the right to engage in any conduct he chooses without any limitations from the Congress or the courts - and that includes the right to violate the law.
The point isn't that they issued a lot of these signing statements. The point is that they have adopted such a sweeping and radical view of the President's absolutist power that it necessarily means that he believes he has the right to violate a staggering number of laws - all laws purporting to touch upon defense of the nation, including measures taken against U.S. citizens on U.S. soil. The number and type of signing statements are merely evidence of that radicalism.
Hearings under these circumstances would be an absolute joke. The Bush regime would be sure to make arguments about how national security prevents it from providing the requested information; law professors would offer differing views; Kennedy would raise his voice; Hatch would patronize him; and, eventually, Specter, would thank everyone for their time and go play squash. Impeachment is the obvious (and only appropriate) remedy.
ReplyDeleteArne Langsetmo said...
ReplyDeleteHWSNBN sez:
Is it any wonder that the mere average legal intellects here couldn't manage a rebuttal to that fine "argument"? Guess that's why pretty much no one responded although I'll admit I did ... a fact you ignore here, you bloviating troll).
I'd like to remind you, Arne, that Bart is the best they've got and he's been assigned here. Compared to the rest, he's almost coherent half of the time. He's not much, but he deserves our acknowlegement of that, at least. As long as you recognize that, you may continue to heap scorn and ridicule upon him and his arguments.
It seems to me that Bart has never really discussed what he feels the role of the judiciary branch is in determining whether a law is unconstitutional. It's impossible for signing statements to be a form of notice of legal arguments the President intends to advance in the courts. If that's true as Bart says, then why haven't we seen the President challenging the constitutionality of laws in the courts? Maybe this is all about Marbury v. Madison after all.
ReplyDeleteAnonymous said...
ReplyDeleteWhy wouldn't the President just veto a law which is blatantly unconstitutional (because only the President can be the Commander-in-Chief)?
The President finds only a part of the bill to be unconstitutional and supports the rest.
So is a 203 year old precident acceptable Bart?
ReplyDelete6:49 PM
Let me take a shot at Bart's pitch. Equal but separate branches. The radical legal concept of "executive review".
How do you like it, Bart? Can I get a gig as a bush apologist? What's the pay rate? Judging by the Abramoff case, it must be pretty good.
Maybe this is all about Marbury v. Madison after all.
ReplyDeleteConsidsering the number of theocrats who get really mad when judges actually use the Constitution to guide their rulings, and considering those folks are the folks the Rove administration counts on as its "base", then perhaps Marbury v. Madison is indeed the target of this little exercise.
And don't tell me I'm being paranoid. The voices in my head get really mad when you do that....
1) The President only objected to parts of the bills to which he attached signing statement and appears to supported the presumably constitutional remainder of these bills because he signed them.
ReplyDeleteThen how does this not amount to a 'line item veto', which has been ruled unconstitutional?
yankeependragon said...
ReplyDeleteOh, and Bart? Unless you're prepared to transcribe and defend ALL 750 signing statements President Bush has put his name to, don't cherry-pick 10 and expect the rest of us to be impressed.
It is the burden of you who are making the claims to prove them.
So far, the Globe reporter making these claims has presented only 10 of these alleged 750 signing statements. We have no proof as of yet that these other 740 statements exist, nevertheless what they say.
Color me unimpressed.
Hearings under these circumstances would be an absolute joke. The Bush regime would be sure to make arguments about how national security prevents it from providing the requested information; law professors would offer differing views; Kennedy would raise his voice; Hatch would patronize him; and, eventually, Specter, would thank everyone for their time and go play squash. Impeachment is the obvious (and only appropriate) remedy.
ReplyDeleteMORON - if everyone in the Senate is so corrupt, and hearings would be such a waste of time, why do you assume that impeachment would be any different? So they won't hold serious hearings, but they will commit themselves to impeachment.
These "more-radical-than-thou" types are always notable only for their abject stupidity.
It's very easy and cheap to mock every effort to actually do something about this - to work incrementally - and instead march in the street wiht your stupid fist in the air yelling IMPEACH NOW! You get to feel good a bout yourself, real pure, while the chimpy stays in office.
But what matters is that you feel good, not that anything actually get done.
The status of judicial power before Marbury
ReplyDeleteThe power of judicial review is often thought to have been created in Marbury but the general idea has ancient roots. The idea that courts could nullify statutes probably has its roots in Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practice without their license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."
Meyers: But what matters is that you feel good, not that anything actually get done.
ReplyDeleteThese "more-radical-than-thou" types are always notable only for their abject stupidity.
These "more-______-than-thou" types are always notable only for their abject stupidity, as well.
Arne Langsetmo said...
ReplyDeleteBart: A couple days ago, I reposted 10 of these [signing] statements as provided by the Boston Globe and described the legal constitutional basis for each.
No one here had a legal argument in rebuttal.
Arne: Clue for you, troll: Repeated assertion is not "argument", much less "legal argument". Most people consider "Because I said so. I SAID so, didntcha hear me?" to be rather weak rhetoric. Here's an example of your "argument":
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
Bart: Every President has limited reporting of intelligence gathering to the Congressional intelligence committees or as subcommittee thereof. Congress on both sides of the aisle leaks like a seive.
I am not seeing an "I said so" in that explanation. Rather, I gave you the history of the limits past President's have placed on the their disclosure to Congress of classified intelligence gathered by the Executive and why those limits exist.
As I posted above, you had and still have no rebuttal for this argument. Rather, you present the following snark...
Now that last one was truly astounding in its depth and perspicacity, eh? I also note the copious cites to supporting cases, and the absense of any logical fallacies such as the "tu quoque" fallacy.
Exactly why would I want to make this more complicated than the 7th grade level in which I presented it since you do not appear to comprehend what I said at even that level.
Two can play the snark game...
>The President finds only a part of the bill to be unconstitutional and supports the rest.<
ReplyDeleteBut since the line item veto has been shown to be unconstitional, he would be pretty much obligated to veto the whole thing....or just make the s(tuff) up as he goes along.
I'm still trying to figure out how
"Section 8
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States " and
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be
for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;"
is rendered void by
"will to the best of my Ability, preserve,
protect and defend the Constitution of the United States."
Section 2
The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States"
but that is the "article II "defense in its entirety.
This is why elections matter.
ReplyDeleteShooter242 said...
ReplyDeleteThis is why elections matter.
This is why fair elections with verifiable results matter. Did they matter in Iraq under Saddam? This government, through the CIA, has been fixing elections around the globe since before you were born, son.
CIA's Iraq plan shot down
ReplyDeleteSeptember 27, 2004 12:25 IST
The Bush administration has been forced to scale back a plan proposing a covert CIA operation to aid candidates, favoured by Washington, in the Iraq elections after lawmakers raised questions about the idea when it was sent to Capitol Hill.
The plan, written several months ago, wanted to help such candidates "whose opponents might be receiving covert backing from other countries, like Iran" but not necessarily to go so far as to rig the elections, US media reports said.
But lawmakers, from both parties, raised questions about the idea when it was sent to Capitol Hill. In particular, house minority leader Nancy Pelosi "came unglued" when she learned about what a source described as a plan for "the CIA to put an operation in place to affect the outcome of the elections," said Time magazine.
Pelosi, Time said, had strong words with National Security Adviser Condoleezza Rice in a phone call about the issue.
"I cannot in any way comment on classified matters, the existence or nonexistence of findings. But there have been and continue to be concerns about efforts by outsiders to influence the outcome of the Iraqi elections, including money flowing from Iran," Rice's spokesman Sean McCormack told the magazine.
"This raises concerns about whether there will be a level playing field for the election. In the final analysis, we have adopted a policy that we will not try to influence the outcome of the upcoming Iraqi election by covertly helping individual candidates for office," he said.
A senior US official hinted that, under pressure from the Hill, the Administration scaled back its original plans. During his visit to Washington and New York, interim Iraqi president had insisted that elections, scheduled for January, would go ahead despite increasing violence in the country.
Bart - just another bedwetting right-winger
ReplyDeleteSo now we have trolls doubting the existence of signing statements because the Boston Globe only published ten of them. Wow, it’s really getting silly in here.
ReplyDeleteOur dominate troll expects every statement ever published in a newspaper to be backed up by dozens of footnotes and pages of documentation. That’s not how a newspaper works, and everyone knows that. It would be impossible, every paper would be thicker than a big city phone book.
If the Boston Globe actually published 750 signing statements, Bostonians would be scratching their heads wondering just what the heck the paper was doing. The Boston Globe knows that they could count on their hands the number of people who might actually read them. Are they obligated to publish them anyway, just to avoid being accused of making them up? Of course not. Neither are they obligated to publish all of the transcripts of trials they report on etc. etc. etc.
This isn’t economically feasible for any newspaper. Period.
That the “non-publication” of these statements is cited as some sort of evidence casting aspersions upon the credibility of Charlie Savage and this paper shows just how desperate our trolls have become.
If they had any shame, they’d be embarrassed.
Gris Lobo said...
ReplyDeleteBart said: "However, Glenn declines to make a supported legal argument as to why even one of Mr. Bush's signing statements misinterprets the Constitution.
A couple days ago, I reposted 10 of these statements as provided by the Boston Globe and described the legal constitutional basis for each.
No one here had a legal argument in rebuttal."
Gris: I didn't see them. I'm sure you cherry picked them to support your argument, but just to be thorough which thread did you post them on?
I posted them on Glenn's last thread discussing this subject - "Media finally starting to report the President's systematic lawbreaking"
I reposted the exact Boston Globe text and posted commentary following each signing statement summary.
Here is the part of the Globe text dealing with the McCain bill:
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Before I comment on this, thank you for being the first to bother addressing the legal issue.
Article I does include a provision allowing Congress to make Rules for the Government and Regulation of the land and naval Forces.
However, the Courts have held repeatedly that this Article I provision does not apply to non military personnel, so McCain's bill cannot be based on this provision and apply to agencies like the CIA.
To the extent the bill applies to the military, the law is murky.
This Article I provision has to date only been applied to the UCMJ which regulates of the conduct and discipline of the individual service member.
McCain's bill does not purport to change the UCMJ in any way nor does it really apply to the discipline of individual service members. Rather, it appears make a command decision concerning the interrogation methods allowed to the entire executive.
This would make a very interesting court case if limited to the military. I am not sure how it has application to nonmilitary personnel under the Article I provision which you have cited.
Brian McCaffrey said...
ReplyDeleteAnne:Laws are deemed to be constitutional until the courts rule otherwise.
Bart: Novel legal doctrine. Do you have any precedent for this?
From http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm
RE: Marbury v. Madison (1803)
"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since."
So is a 203 year old precident acceptable Bart?
Classic case. However, where does it say that "Laws are deemed to be constitutional until the courts rule otherwise."
Marberry merely says that the Courts may declare a law unconstitutional and that they have the final say in such interpretations.
That implies that the other branches have the first say as to whether the statute is unconstitutional and nothing in the decision states or implies that obviously unconstitutional laws are ever presumed to be constitutional.
Anonymous said...
ReplyDeleteBart on why a President would sign a partially unconstitutional bill: The President only objected to parts of the bills to which he attached signing statement and appears to supported the presumably constitutional remainder of these bills because he signed them.
Then how does this not amount to a 'line item veto', which has been ruled unconstitutional?
Nothing the President does or does not do will make an unconstitutional provision constitutional.
If he signs the bill without a signing statement, the provision remains unconstitutional.
If he signs the bill with a signing statement, the provision remains unconstitutional.
If he vetoes the bill and Congress overrides the veto, the provision remains unconstitutional.
The Constitution controls so the President in no way has any discretion to make an implied veto.
"Are you now or have you ever been?"
ReplyDeleteThis isn't even the question with reference to Andrew Sullivan. The more important issue he is.
Is what? I have been reading up on Andrew Sullivan, a person who has often espoused positions with which I agree so I have had an inclination to check out what he says every once in a while.
What I have discovered (so far)is that Andrew Sullivan (and I have read his own past words so I am not allowing others to mischaracterize his positions)is an individual who has taken and strongly argued in favor of some policies which are so inherently objectionable (to me) and ones which I find so completely immoral that I have decided that I will no longer look to him for anything, much less his opinion of Juan Cole, as he is a person who has, I believe, the same core mindset as those to whom I am most passionately and, by principle, opposed.
Good people can disagree on a variety of issues and still be worthwhile in terms of considering each new opinion of theirs.
He is not one of those people and he has written some things which if posted here with no name attached to them would make everyone shudder in the same way we shudder when we read certain statements and evaluate certain positions of present members of Government. Both parties.
jao and hypatia, thanks for your legal input on these matters, which I always read carefully.
I have two questions:
1) What are each of your opinions on the present Terrence Boyle controversy? Do you think he should be confirmed?
2) To this lay person, jao, it appears that in certain ways your position on the legal aspects of today's post by Glenn is very much similar, in fact, to bart's.
My problem with that position is that when the wall of secrecy is over 100 stories high already and a climate of fear has descended on the earthbound, the liklihood of anyone stepping forward with a specific case of being "injured" by any particular action of the President as well as the likihood that anyone would even find out enough information, because of the secrecy, to know with assurance and be able to prove he was a "party of standing" is almost non-existent.
So where does that leave us?
Thank you.
PS. Bart, I have read most of what you have written on this blog and have always been one who supported your continued input.
Recently I have noticed something new (to me), and it keeps happening and happening with such frequency that I can no longer avoid coming to a certain conclusion.
Whereas at first it appeared you were an articulate, highly informed person who legitimately had different views about Bushco than many on this blog, now it seems to me, at least, that your arguments have lost their "lustre" and are becoming thinner and thinner and less intellectually honest and the more that happens the more they appear to me to fall essentially in the propaganda and "blind defense" category, less concerned with the arguments themselves than in simply mounting a defense, any defense, of any position taken by Bushco with reference to their interpretation of their various "legal" positions.
It's been quite a while since I learned some valuable information from any post of yours and I guess I will now stop reading them.
This is not said as a personal attack but rather as a comment on the "weightiness" of your arguments. I am actually sort of happy to see that your positions are the ones which seem to disintegrate when more light is shed on them for the very reason that more and more facts are now coming out in the press about all of these issues.
Impeachment is truly the only remedy to Bush's power grab. Can you imagine his signing statement in the event of legisltion prohibiting signing statements? What other kind of legislation would forestall the illegalities? It doesn't matter, because Bush would issue a signing statement declaring he has the authority to ignore it.
ReplyDeleteThis is the dispensing power, exercise of which resulted in James II being chased out of England in 1688. The framers of our constitution knew this history.
ReplyDeleteIt is a monarchical practice that can not be tolerated in our system.
Bart:...without a scinitilla of evidence, you keep slandering the President by repeatedly accusing him of "lawbreaking"...
ReplyDeleteBart, this is deliberately obtuse. For the past few months, Glenn has been carefully documenting the reasons he, and many of us here, believe that the President has been violating the 4th Amendment, which reads, in part :...and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
the President has claimed the right to explicitly violate this passage of our constitution. I will grant you the respect of assuming that your arguments are in good faith. But don't try and pretend like we are coming out of left field here. If Jimmy Carter tapped your phone without first serving probable cause papers to the proper authorities, you would be howling bloody murder, and rightfully so.
The claim about "...the people that have been briefed..." is pretty self-serving also, given that we are not even entitled to find out who that is. And if we did find out who it is, they would not be at liberty to say anything to us.
I don't assume we are right, but I know that we have the right, and indeed the duty to ask the question when we see such an (admittedly, although reluctantly admittedly alleged) aggregious injustice perpetrated on our behalf. This is not how we want the government of, by, and for the people to behave by and for us.
Jon Henke:If it's illegal to do it 500 times, it's illegal to do it once. If it's legal to do it once, why is it illegal to do it 500 times?
All that to say: why now? And why not previously?
I think there is something to be said for the argument about the "economy of scale." Were it to have been revealed that:
(i)in the wake of the 9/11 attacks that the government had engaged in a massive and secretive campaign to ascertain the identities of the bombers and their compatriots;
(ii) in the course of that massive and secretive campaign the government had been, shall we say, somewhat cavalier about their interpretation of constitutional protections of civil liberties;
(iii) that, having discovered the identities of those concerned and made and all out and massive effort, which may have included some Bauer-esque methods to apprehend them so as to restore peace of mind to the American people, as well as to satisfy an urge for some justice of the Biblical nature;
I don't think these activities or short-term policies would be looked at in an unfavorable light.
But this administration is claiming, as policy, the right to effect these changes in the fundamental nature and behavior of our government, in perpetuity. That is a significant difference.
Hypatia's point is excellent also:What Bush is doing is different. He is arguing that hundreds of statutes become unconstitutional only when he feels inclined, in the name of national security, to ignore them on an ongoing, institionalized basis. They are not unconstitutional on their face, or as applied to anyone else.
Bart:Perino correctly observed that Presidents have occasionally used signing statements since the 19th century. Then the reporter observes that Mr. Bush has used them more than previous presidents, even though Perino never said anything concerning this fact.
Bart, although I am surprised you would need to have this pointed out, the issue the reporter was addressing was what the white house spokesperson did not say:
that, while presidents have been issuing Signing Statements since the 19th century, very few (if any? my research is not thorough at all, sorry, feel free to provide counter examples here) have claimed, through signing statements, the right to completely and explicitly ignore the statute being signed into law. By bringing up the actions of past Presidents, the press spokesperson deliberately invited the comparison, but you seem to be implying that this comparison should not be made because it is in ill-conceived one?
Bart:Once and for all - THE COURTS ARE BARRED BY THE CONSTITUTION FROM RENDERING ADVISORY OPINIONS...PERIOD. There is no case in controversy for the courts to decide until the President interprets a statute as unconstitutional and then acts to violate that statute and in doing so injures a citizen.
Well...actually, that is happening, but, far from trying to see it through, the administration is again applying the "national security" defense and trying to explicitly avoid judicial review of their positions.
Unless that was a different secret NSA wiretapping program, which requires a whole new set of justifications and legal opinions.
vermontraccoon said...
Specter will pull another Lucy with the football to our Charlie Brown. AAAAAUUUUUUGGGGGHHHHH!
LOL
Kovie - nice work.
This post is getting too long.
Oops.
kovie:
ReplyDeleteWTF are you talking about? Now we're rejecting legal or congressional actions because we deem them to be partisan, narrow or otherwise? Taken to its logical limit, this means that if Dems take back congress, Bush can ignore any laws that they pass, even if they override his vetos, because he deems them to be partisan.
Of course he can. He's CinC, he's the head of the military. Of course, when he makes use of such, that's a whole different realm, and as my ConLaw perfesser Jesse Choper sez, a subject for a different course. ;-)
But yes, this is in effect the overall system of gummint that HWSNBN is extolling....
Cheers,
As JaO says: Mister President, tell it to the Judge. or words to that effect. The problem is getting this in front of a judge, which is clearly an institutional, structural problem.
ReplyDeleteImagine an Attorney General and Department of Justice independent of the President, empowered to take the complaint of any member of congress to the courts for adjudication. No problem. Maybe it's time to start looking at genuine structural reform of a constitutional system that is clearly broken.
HWSNBN:
ReplyDelete[Arne]: Clue for you, troll: Repeated assertion is not "argument", much less "legal argument". Most people consider "Because I said so. I SAID so, didntcha hear me?" to be rather weak rhetoric. Here's an example of your "argument":
. . .
[Bart]: Every President has limited reporting of intelligence gathering to the Congressional intelligence committees or as subcommittee thereof. Congress on both sides of the aisle leaks like a seive.
[latest Bart emanation]: I am not seeing an "I said so" in that explanation.
Ummm, I'm not seeing any cites, references, examples, argument, or even logic (outside of the tu quoque fallacy I alluded to earlier) in your graf there. Strange as it may seem to you, all I see is simple bald assertion. Imagine that....
Cheers,
EWO on Andrew Sullivan:
ReplyDeleteGood people can disagree on a variety of issues and still be worthwhile in terms of considering each new opinion of theirs.
He is not one of those people and he has written some things which if posted here with no name attached to them would make everyone shudder in the same way we shudder when we read certain statements and evaluate certain positions of present members of Government. Both parties.
I haven’t the faintest idea of what you’re talking about.
I strongly agree with Andrew on some issues (his fervent opposition to torture has been particularly forceful) and strongly disagree with many others (including his post on Hitchens/Cole). However, I have never read anything he’s written that has been outside of normal political discourse in this country for both parties. If so, would he be associated with a mainstream publication like Time?
I can’t even guess what you are referring to.
To the ananymouse Cato hater-
ReplyDeleteThey are not "fascist", they believe in as little government as possible. The reason I brought them up was the fact that they ARE tied to the right-wing, and they released the paper I linked to ripping the Bush administration.
Also, in the article you quote, the legal analyst said- "As reported in the press, the new FBI surveillance guidelines present no serious problems," declared Cato legal affairs analyst Roger Pilon...".
As reported in the press, there were no civil liberties issues with the Patriot Act. It was once the law was actually passed and the provision were actually public that there were problems from Cato's standpoint.
l) seesdifferent said...
ReplyDeleteIn the 60's we used to call what Specter "the genuflector" is doing "co-opting".
If you people who did that in the 60's have stopped doing that, I wish you hadn't.
In my opinion, the number one strategy (going back at least centuries and probably longer)of all tactical warfare (as opposed to battlefield or strictly military warfare) is to "co-opt" the opposition through the disinformation channel of mounting the first (but phony} "campaign" against the oppostion, making it look credible by containing some truthful and valid criticims of your own positions, but then twisting everything else in such a way that the outcome, which is predictable, is that you succeed in convincing your "audience" that a debate has taken place, some redress has been agreed to, and the issue is resolved.
Then although other, newer dogs bark, the caravan continues to move on.
In my opinion this #1 strategy of tactical, psychological "disinformation" warfare if put on one side of a scale would weigh more than #2-#99 if they were placed on the other side.
I agree with ender's post of 8:20.
Reichstag Burning said...
Maybe it's time to start looking at genuine structural reform of a constitutional system that is clearly broken.
This has been my conclusion since about two months after I started first getting involved in politics late last year and starting reading up on everything.
I have said before that I personally am not even that concerned that the President "tell it to a judge" and that he be slapped on the wrist and made to "follow all laws."
Congress will just change them. We've seen that already.
I do look at this NSA issue and the issues about which Glenn (and recently Charles Savage) has written as indispensible ones to arrive at the right destination.
But they are only A in my opinion (but you can't go through the alphabet without starting with A) and we need to get all the way to Z at this crisis in our country's progression.
The Constitution contains defects in it.
Moral people have to step forward to correct those defects in a way consistent with the moral principles that are behind the Declaration of Independence and the Constitution (which had a huge defect before, slavery, which was corrected).
Everything's got to go. All the spying and intrusions on privacy and the "wars" on terrorism and drugs and rings of steel around citizens and secret police forces who treat citizens like sheep to be herded and the whole sorry mess.
The Fourth Amendment is first. It has to be painstakingly re-examined in light of techonological advances and electonic surveillance and the Internet and everything to do with the advances in science and technology which have enabled a government run amok to get away with building a wall of secrecy around its Crime Spree by spying on, and controlling, the people in the country in an Orwellian nightmarish dictatorial horror show.
Nothing less is going to save us I am afraid.
Arne, what does that HWNSNWB thing mean?
sunny:
ReplyDeleteImpeachment is truly the only remedy to Bush's power grab. Can you imagine his signing statement in the event of legisltion prohibiting signing statements? What other kind of legislation would forestall the illegalities? It doesn't matter, because Bush would issue a signing statement declaring he has the authority to ignore it.
Sorry, but such impeachment proceedings would be a blatant end run around the constitution. The President would be constitutionally bound to preserve the institution of the Presidency and quash any such illegitimate proceedings.
JaO writes:
ReplyDeleteHowever, it is important to understand that the general legal issues are much too nuanced to justify a position that a president can never decline to execute an untested statutory provision he thinks violates the Constitution.
Yes. So true.
But I confess to lacking the patience for trying to explain why this isn't salvation for pro-Bush, Bart-esque apologias; I'm unwilling to set forth the nuances you speak of.
Let's, however, try this, from Freytag v. Commissioner (90-762), 501 U.S. 868 (1991) , (my emphasis):
The Framers knew, however, that it was not enough simply to define in writing who would exercise this power or that. "After discriminating . . . in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task [was] to provide some practical security for each, against the invasion of the others." The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison). Invasion by the legislature, of course, was the principal threat, since the "legislative authority . . . possesses so many means of operating on the motives of the other departments." Id., No. 49, p. 314 (J. Madison). It can "mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate depart- ments," id., No. 48, p. 310 (J. Madison) and thus control the nominal actions (e. g., appointments) of the other branches. Cf. T. Jefferson, Notes on the State of Virginia 120 (W. Peden ed. 1955).
Thus, it was not enough simply to repose the power to exe- cute the laws (or to appoint) in the President; it was also nec- essary to provide him with the means to resist legislative en- croachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, 7, or even to disregard them when they are unconstitutional. See Easterbrook, Presidential Re- view, 40 Case W. Res. L. Rev. 905, 920-924 (1990).
I not only concede it, I insist on the accuracy of what Scalia wrote for the Court in this case. Yet I also know that what Bush is claiming is extreme and unconstitutional. And I'm sure Scalia would agree. Nuances, indeed.
Arne, what does that HWNSNWB thing mean?
ReplyDeleteHWSNBN: "He Who Shall Not Be Named". The generic name for tedious trolls on Usenet/WWW. They appreciate seeing their name in lights, and get the idea if you address them by such, they've managed a "conversation". But they're not listening to you, so I prefer to refer to them as generic noise sources, and simply comment on the latest emanations from said source.
Cheers,
If [the preznit] still believes in good faith that the specific provision is unconstitutional and expects the Supreme Court to support his position, he could decline to enforce the provision to create a test case for judicial review.
ReplyDeleteActually, this is true not only of the preznit, but of everyone. Only problem is that if you lose and the law is upheld, you've broken the law, and will have to suffer the consequences.
Needless to say, some folks of a less Thoreauian bent find such risk to be unacceptable, and actually file suit in court for a determination of constitutionality as a facial question (you generally won't get a court to accept an "as applied" challenge absent development of the specific factual situation, which generally means breaking the law first). Facial challenges to laws are generally more difficult, and only succeed if there's no way the law can be constitutionally applied (or be modified to be constitutional) in all circumstances. So it's rare, but you will see some cases filed in advance of a specific transgression of the law by someone who asserts standing on the basis that they would like to engage in the actions prescribed by the law (and will do so), but that they're inhibited from doing so by the existence of the law and the threat of punishment. This is then the concrete "injury" needed for standing. Such cases are not advisory opinions, despite the pretensions of HWSNBN that they would be so absent any facts (it is true that courts will refrain from "advisory opinions" in other circumstances, but this isn't becase of a specific rule about such; it's simply a consequent of the court's more developed actual rules and laws about standing, mootness, justiciability, injury in fact, jurisdiction, etc.). To say that courts don't do "advisory opinions" glosses over a lot of law that is really more than a semester's worth of education to really fully understand, not to mention, it's simply not accurate.
Cheers,
l) seesdifferent said...
ReplyDeleteIn the 60's we used to call what Specter "the genuflector" is doing "co-opting".
If you people who did that in the 60's have stopped doing that, I wish you hadn't.
In my opinion, the number one strategy (going back at least centuries and probably longer)of all tactical warfare (as opposed to battlefield or strictly military warfare) is to "co-opt" the opposition through the disinformation channel of mounting the first (but phony} "campaign" against the oppostion, making it look credible by containing some truthful and valid criticims of your own positions, but then twisting everything else in such a way that the outcome, which is predictable, is that you succeed in convincing your "audience" that a debate has taken place, some redress has been agreed to, and the issue is resolved.
Then although other, newer dogs bark, the caravan continues to move on.
In my opinion this #1 strategy of tactical, psychological "disinformation" warfare if put on one side of a scale would weigh more than #2-#99 if they were placed on the other side.
I agree with ender's post of 8:20.
Reichstag Burning said...
Maybe it's time to start looking at genuine structural reform of a constitutional system that is clearly broken.
This has been my conclusion since about two months after I started first getting involved in politics late last year and starting reading up on everything.
I have said before that I personally am not even that concerned that the President "tell it to a judge" and that he be slapped on the wrist and made to "follow all laws."
Congress will just change them. We've seen that already.
I do look at this NSA issue and the issues about which Glenn (and recently Charles Savage) has written as indispensible ones to arrive at the right destination.
But they are only A in my opinion (but you can't go through the alphabet without starting with A) and we need to get all the way to Z at this crisis in our country's progression.
The Constitution contains defects in it.
Moral people have to step forward to correct those defects in a way consistent with the moral principles that are behind the Declaration of Independence and the Constitution (which had a huge defect before, slavery, which was corrected).
Everything's got to go. All the spying and intrusions on privacy and the "wars" on terrorism and drugs and rings of steel around citizens and secret police forces who treat citizens like sheep to be herded and the whole sorry mess.
The Fourth Amendment is first in my own opinion. It has to be painstakingly re-examined in light of technological advances, electronic surveillance devices, the Internet and everything to do with the advances in science which have enabled a government, claiming concern about nation security, to run amok and be able to erect a wall of secrecy around its Crime Spree by spying on, monitoring, harrassing, detaining, blackmailing, intimidating, "chilling", scaring and otherwise controlling people in an Orwellian nightmarish dictatorial horror show.
Nothing less is going to get this country back on track I am afraid.
Arne, what does that HWNSNWB thing mean?
Richard said...
ReplyDeleteTo the ananymouse Cato hater-
They are not "fascist",
And you can't read, Dicky boy. I said fascist, as in the clasical definition of fascism, the marriage of business and government. And they aren't interested in limited government, tool. They are "Libertarian" In A Corporate Way. Don't tell me what I know. I am here to correct your misthinking, miss thing.
Are the MSM and the Washington Press Corps on the same wave length as the People in this country?
ReplyDeleteI saw a poll of 61,000 PEOPLE and 75% thought Colbert was funny (over a majority who responded thought he was "very funny") and 61% thought his routine was "appropriate."
What percentage of the MSM agrees with them?
Personally, I think it is Glenn who best has his finger on the pulse of the majority of people in this country.
The Daily Dish, by Andrew Sullivan, May 5, 2004.
ReplyDeleteDiscusses War in Iraq as a "moral imperative."
That's an example. There are plenty of them. Whatever else the War ON Iraq is or was, it was scarcely a "moral imperative."
But you know what? That's my opinion. Don't agree? Scroll by me.
And I'm sure Scalia would agree. Nuances, indeed.
ReplyDeleteI hope you are correct. I wouldn't presuppose to know if you are anymore than I would presuppose what's in that man's mind. He's unhinged, not quite the "Malkin" kind of unhinged, but he's unbalanced and injudicious, and for man in his position, that's not a cause for comfort. I'd re-read those cites. Start with these.
What about Roberts and Alito, what do you think they think?
The Federalist Papers
Notes on the State of Virginia
It's well know that Jefferson had no love of judges. Didn't care for them. That's why Marbury was so fascinating at the time. Jefferson got outfoxed by the judge.
ReplyDeleteWOW.
ReplyDeleteJury spares 9/11 plotter Moussaoui
"I certainly believe the verdict should have been death," said former New York Mayor Rudy Giuliani who testified against Moussaoui during the trial's penalty phase.
I say Wow not because I know any of the real facts about this case (for all I know this guy is a "useful tool" of the Government and they don't even want him to die because they have other plans for his role in things---who knows at this point?) but because this strikes me (if this really is a true jury and not people placed there by the Government) as being extremely interesting in terms of what it reflects about the mindset of average citizens about many issues, including terrorism, 9/11, and the Death Penalty itself as a form of punishment in this country.
Arne, thanks for the information. I will start to use that designation also myself because of what I have observed, as armagednoutahere also says he has observed, to be the disintegrating quality of the so-called "legal arguments" of a certain learned member of the bar and the increased liklihood he is merely a paid operative.
EYes WIde Open said...
ReplyDeleteAre the MSM and the Washington Press Corps on the same wave length as the People in this country?
I saw a poll of 61,000 PEOPLE and 75% thought Colbert was funny (over a majority who responded thought he was "very funny") and 61% thought his routine was "appropriate."
Those polls are unscientific and unreliable. The only polls that are officially used to monitor and verify election results the world over are exit polls, unless they happen in America after "another Republican victory". Then they are unscientific and unreliable.
Sorry, but such impeachment proceedings would be a blatant end run around the constitution. The President would be constitutionally bound to preserve the institution of the Presidency and quash any such illegitimate proceedings.
ReplyDeleteSo saith Anonymous @ 9:13 PM
Gee, anon, I hope you are just being Colbert-esque.
After 200 years, is anybody really surprised that some people have figured out a way to "game" even this system, coming and going.
ReplyDeleteanon writes: I hope you are correct. I wouldn't presuppose to know if you are anymore than I would presuppose what's in that man's mind. He's unhinged,
ReplyDeleteNo, he's not. I ardently hate what he did in Raich, but Scalia is hardly unhinged. Read Glenn's book.
Roberts and Alito both strongly affirmed Jackson's Opinion in Youngstown. Powerline despises that Opinion. As mindless Bush supporters, they must.
Great posts, as always - with the exception of "bart" (notice how he rarely posts after 8pm? That's when his mom shuts off the computer). It's a shame others get drawn into his immature posts.
ReplyDeleteWe know what's going to happen. Specter is never really going to challenge this administration and follow through.
It's just deja vu all over again. There's not even any fury there, just sound.
Jao - let me be a little clearer on my earlier comments. I was not suggesting that the court review presidential vetoes.
ReplyDeleteA law is passed. Once signed, it is deemed to be constitutional. Just for the sake of argument and example, let's say it's a ban on partial birth abortion that contains no exception for the life and health of the mother. Because some believe that to be in violation of prior court rulings, a lawsuit is filed challenging that law. The matter is now in the hands of the judicial system; if the law is upheld all the way up the chain, through the Supreme Court, the law stands. If it is not, it is no longer a valid law.
If Congress passes a law that the president feels is an unconstitutional challenge of his authority, he can veto it. If the veto is not overridden, it stands, and there is no law. If, on the other hand, Congress overrides the veto, the only way for the law to be challenged on constitutional grounds would be for suit to be filed and the issues reviewed/litigated within the court system.
Bush has signed legislation into law, which automatically confers constitutional status on those laws. He sidesteps that minor little detail, by issuing signing statements that, in effect, say that law or no law, he's going to interpret his powers his way and the heck with the Congress.
That's not how it's supposed to work in a government with three equal branches.
Mexico's Fox won't sign drug law
ReplyDeleteI wondered how long it would be before "they" "got to" him.
I also wonder if any forward looking persons have really stopped to analzye everything enough to come up with the ONLY RATIONAL CONCLUSION as to what will happen if the War Party and the neo-cons are allowed to have their caravan move on.
It is an either/or. No third possibility. One or the other of these is going to happen as sure as the night follows the day:
l) We're going to have a Draft instituted in this country again. Nixon's greatest achievement goes down the drain.
-or-
2) Illegal immigrants, especially those from Mexico, are going to be used as "cannon fodder" to fight all these increasingly unpopular wars that no American wants to get involved with.
The "chickenhawks" and their families have to be secure in their personages so they can continue to sit in their Weekly Standard offices and "serve their country" from secure perches.
From Bart at 7:33PM:
ReplyDelete"Marberry merely says that the Courts may declare a law unconstitutional and that they have the final say in such interpretations.
That implies that the other branches have the first say as to whether the statute is unconstitutional and nothing in the decision states or implies that obviously unconstitutional laws are ever presumed to be constitutional."
Can someone with actual legal training and experience tell us if Bart is indeed on solid footing here?
I personally don't believe he is, but I'd like to hear from those who actually work in the legal field.
Nice.
ReplyDeleteAmong the luminaries at Cato is Jose Pinera, co-chair of its Project on Social Security Privatization. Cato's latest annual report says that Pinera, a former minister of labor and welfare in Chile, "oversaw the privatization of Chile's pension system in the early 1980s" -- but does not mention that at the time the Chilean government was under the dictatorship of Gen. Augusto Pinochet. Evidently, Cato's concern about intrusive government does not extend to torture and murder.
Yeah. Fascists, in every sense of the word. Limited governemnet? Ha! You tools. I got a bridge to nowhere I'd like to sell you. Dumbasses.
Eyes Wide Open:
ReplyDeleteI saw a poll of 61,000 PEOPLE and 75% thought Colbert was funny (over a majority who responded thought he was "very funny") and 61% thought his routine was "appropriate."
I saw a poll where 37% said he was "great" while the other 63% picked the remaining alternative "greatest ever"....
;-)
Cheers,
OK folks, here is the Clinton Administration's review of the case law starting back in 1860 to the present holding that the President has the constitutional authority to decline to execute unconstitutional statutes.
ReplyDeletehttp://www.usdoj.gov/olc/nonexcut.htm
What is so amusing about this review is that Justice Jackson's concurrence in the Youngstown case, which has assumed nearly Ten Commandments level authority in these parts, recognizes this authority.
nick said...
ReplyDeleteBart:...without a scinitilla of evidence, you keep slandering the President by repeatedly accusing him of "lawbreaking"...
Bart, this is deliberately obtuse. For the past few months, Glenn has been carefully documenting the reasons he, and many of us here, believe that the President has been violating the 4th Amendment, which reads, in part :...and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
the President has claimed the right to explicitly violate this passage of our constitution. I will grant you the respect of assuming that your arguments are in good faith
1) The President has never claimed the right to violate the 4th Amendment.
2) The case law, which I have cited at least a dozen times here, uniformly holds that the 4th Amendment does not require warrants for intelligence gathering against foreign groups and their agents in the Unites States.
3) Glenn has offered no contrary legal authority. Instead, he is telling you what you want to hear and you accept it without question.
Here is something else to consider on the part of those who actually like to look ahead a bit and are not merely interested in getting rid of the present enemy only to then put in power his identical twin.
ReplyDeleteHillary Clinton is more of a hawk on Iran than most of the Republicans in Congress: she criticizes the administration for not being tough enough on Tehran. The Republicans, she brays, are appeasers: they are letting the mullahs off the hook. She assures us she won't. With a few sterling exceptions, such as Rep. Dennis Kucinich, congressional Democrats, led by the warmongering Nancy Pelosi, take some variant of Hillary's position.
So, are we doomed?
Unless people begin to wake up – and soon – I'm afraid the answer is yes. The great problem is that much of the antiwar movement shies away from the Mearsheimer-Walt thesis, on account of the preliminary groundwork done by the War Party. You'll recall that, early on, the War Party's laptop bombardiers, such as Andrew Sullivan and his fellow "warbloggers," busied themselves trying to smear the antiwar movement as a collection of extreme leftists and anti-Semites. Sullivan absurdly claimed that the infamous Protocols of the Elders of Zion was being distributed at antiwar demonstrations, and every opportunity was taken to draw a parallel between the views of antiwar protesters and, say, David Duke. Mearsheimer and Walt have been subjected to the same sliming campaign – by the Washington Post, no less. This, the War Party hopes, inoculates them against being fingered as de facto agents of a foreign power and effectively masks what amounts to the hijacking of American foreign policy.
-Justin Raimondo
Two points to note:
Footnote 1. For "Hillary Clinton" read "Bill Clinton." Grow up a little people.
Footnote 2. For "Bill Clinton" read "George Bush 41". You know. The big buddies, one struck mute by the hand of some unseen God and the other worried about sodas in schoools and fat kids.
Footnote 2. All the HWNSBN's: Scroll by any statement by Justin Raimondo. He is a vicious anti-Semite and his raging bigotry is behind every single word he writes. We all know this already of course so you hardly need point that out. Again.
ReplyDeleteJury spares 9/11 plotter Moussaoui
This clearly demonstrates the inadequacies of our judicial system in dealing with the Global War on Terror. Moussaoui should be rendered into the custody of a military tribunal within the unitary executive branch.
JaO said...
ReplyDeleteFor more articulately explained details, see the Clinton-era OLC opinion, PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, which I linked to above.
You beat me to it!
Well. I'll be... Someone here is actually doing some digging and questioning the common wisdom around here. Unfortunately, we get the spin aright after...
Note that this opinion was not intended as a blank check, and was positioned entirely in the context of facilitating judicial review.
The case law cited in the Clinton DOJ survey takes no such position. Rather, it holds that the President may decline to enforce any statute which he in good faith believes is an unconstitutional encroachment on his Article II power, even when the constitutionality of the statute is in dispute and not clear.
The fact that the President signs a larger piece of legislation which includes the unconstitutional provision doesn't mean the President has to enforce the unconstitutional provision.
The Clinton DOJ survey also gives you a some good examples signing statements which predated the Bush WH. Indeed, this survey recommends a President issue signing statements as a warning that he considers the provision unconstitutional.
I certainly do not believe that President Bush is following the spirit of the above opinion, because his strategy generally is to avoid judicial review, not facilitate it.
That is why Bush is issuing frequent signing statement to tell the world his position.
Hi hypatia!
ReplyDeleteNo, he's not. I ardently hate what he did in Raich, but Scalia is hardly unhinged. Read Glenn's book.
I have given a lot of thought to this question and done a somewhat close inspection.
I personally believe Scalia has become morally "unhinged" and as I am one who thinks one's morality eventually affects almost every aspect of one's thinking, I would indeed say Scalia is "unhinged."
He's come undone, in a word, and I fear the "Padillas" of this world (if innocent) and all the definitely innocent detainees and future detainees (and I think almost anyone in the future might be a possible victim of a "round-up" if things don't change a lot in this country soon) will be the ones who bear the brunt of Scalia's unravelling.
My guess, but I'll see, is that I will agree with what Glenn has to say about Scalia in his book, but that's because I think he may have focused on other aspects of Scalia, like past decisions, rather than the Opus Deish moral unhingement of the Scalia we now found sitting on the Supreme Court.
But time will tell.
PS. Glenn, did you give Cynic Librarian permission to take the day off? I am worried about him. Hope he's okay. When he comes back I will be glad.
Nuf Said said...
ReplyDeleteBart said "...4th Amendment does not require warrants for intelligence gathering against foreign groups and their agents in the Unites States."
What does it say about tapping every digital channel at AT&T?
Do you have any evidence of that? NSA is reportedly surveilling international calls coming from and going to captured enemy telephone numbers. The highest estimates of telephone numbers offered by opponents is a few thousand out of millions.
Bart: "Glenn has offered no contrary legal authority."
Yes he has, Bart. Right Here
Give me a good link or, better yet, the case authority which conflicts with my statement.
Bart: 3) Glenn has offered no contrary legal authority. Instead, he is telling you what you want to hear and you accept it without question.
ReplyDeleteActually, that is not true, Bart, and you know it.
While capable of stupidity and caprice (and ttherefore human), I follow no one blindly. I am far too cynical.
You might not find the argument convincing, but the FISA statute does, in fact, contain language which strongly infers that Government employees and organizations are bound by that statute.
§ 1809. Criminal sanctions
Release date: 2005-03-17
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
link
The language in the statute specifically addresses the fact that warrants are necessary when there is reasonable cause to assume that a US person will be one of the parties being surveilled.
These arguments make sense to me: there is a statute passed, the President violated those statutes, he is a breaking the law, by definition. If he chooses to hash the nature of those statutes out in court, where they are rightfully decided, as you point out above, I would be happy. But I do not find his arguments as constructed convincing.
If there is a "leaning" in my interpretation of statutes and laws and tradition in this country, it would be, where possible, to value the freedom of the individual over the convenience of the institutions of government. I do not argue that this is the opinion of SCOTUS, or anyone else, although I am sure I could find some reasonably weighty background material. I do put it forth in good faith and ask that you respond in kind. It is not to be dismissed like some lazy child.
There are a lot of Americans out here who feel that the President's widespread application, and unilateral increase, of executive powers are ruinous for our government. We are not hysterical shreikers. We are citizens, patriots, who demand accountability, even when the leader would have us not.
I am aware that the Article II argument has a legal history, and don't dismiss it out of hand. Ultimately, I find it wanting in current circumstances.
Better something than nothing, I suppose, but we can be confident that Specter only wants to make a big show of closing the barn door long after the horse is gone.
ReplyDeleteC-Span can then play hilarious, sped-up footage of Specter chasing the horse around a field to the tune of "Yackety Sax."
It's time to call for nation-wide marches - on July 4th - to simply say, "We Don't Want A King, George".
ReplyDeleteIf you blog it, tens of millions will come.
Kat
JaO said...
ReplyDelete2) To this lay person, jao, it appears that in certain ways your position on the legal aspects of today's post by Glenn is very much similar, in fact, to bart's.
I do find I can agree with some things bart says in this thread. I hasten to add that if the Devil told me personally the earth was round, that would not cause me to believe it is flat or to believe anything else the Devil said.
:::chuckle:::
What was Glenn saying about the Right demonizing their opponents again?
But while bart has talked positively about judicial review in general, on the specifics of the FISA controversy in other threads here he has misrepresented prior case law and falsely claimed that FiSA's constitutionality has already been litigated.
I don't care whether you call me names. I do object to being called a liar.
Feel free to show where I ever said that "FiSA's constitutionality has already been litigated." Or admit that you were wrong.
Feel free to show me where I ever misrepresented the case law concerning this FISA debate. Or admit that you were wrong. You may not like the results of those cases, but that doesn't mean I misrepresented anything.
I do observe sadly that bart has suckered several commenters here into adopting an indefensibly extreme general position -- that no president is ever justified in disregarding any statute he deems unconstitutional.
LOL!
Dude, I tried to explain to the groupies around here that the President may ignore unconstitutional laws and was ridiculed by well over a dozen posters who had no idea what they were talking about but who took the opposite position to me out of the usual knee jerk ignorance.
Is that what you call "suckering several commentators?"
:::shakes head in amazement:::
Specter's magic bullet was always BS. I've seen several "conspiracy" programs on History Channel, including one which had the real shooters hiding in a sewer drain.
ReplyDeleteBrian Boru
(what's with the handicapped symbol under the word verification box?)
Bart,
ReplyDelete"You appear to be conceding that the Congress does not have the constitutional power to enact statutes which limit or eliminate the President's constitutional power to conduct warrantless surveillance of foreign groups and their agents in America."
Found here.
You misrepresent the law and Glenn's point right there. He was pointing out only that a court has ruled congress cannot limit the President's explicitly stated powers, ie. congress can not appoint someone else Commander-In-Chief of the military, or decide that from now on the House will nominate Supreme Court Justices for the Senate to confirm.
Wiretapping is not an explicit power, and it is an incredible stretch to say it is implied by Article II. While intelligence gathering is necessary for waging war, there is a broad spectrum of ways to gather intelligence and Article II was never meant to a blank cheque, especially a blank cheque the president writes to himself and himself signs. Even moreseo not when an explicit part of the constitution requires warrants for such activities.
The courts have allowed congress on other occasions to limit presidential powers in areas where the constitution is silent. Far from "limiting" his wiretapping abilities, FISA actually expands his powers beyond what really is constitutional if you read the 4th amendment plainly, in that it allows wiretapping without a warrant temporarily.
It may be that FISA is congress giving the President the power to break the 4th amendment under certain circumstances, and is thus unconstitutional. However, under that line of thought, the NSA program is completely unconstitutional and doesn't even need to be illegal. The constitution specificly forbids it. FISA does make such activity criminal though, and such portions of that act are constitutional, in the same way an act passed by congress that held only the text of the bill of rights would be obviously constitutional, and an act making it illegal for the president to violate the bill of rights would also be constitutional.
Even in that case FISA is unconstitutional, I'd say I'm much more comfortable with congress violating the constitution or the law than the president. Congress is diffuse and doesn't have an army or a police force. Their capacity for totalitarianism is limited.
yankeependragon:
ReplyDelete[HWSNBN]: "Marberry merely says that the Courts may declare a law unconstitutional and that they have the final say in such interpretations.
That implies that the other branches have the first say as to whether the statute is unconstitutional and nothing in the decision states or implies that obviously unconstitutional laws are ever presumed to be constitutional."
Can someone with actual legal training and experience tell us if Bart is indeed on solid footing here?
Not surprisingly, not entirely.
One might ask what happens when a prisoner successfully challenges a legal decision. A lot of appeals cases revolve around rather fine and abstruse principles of law rather than the merits of the case or the evidence, and sometimes the way the court deals with these distinctions changes over time, sometimes because what is called a "new rule" of constitutional interpretation is developed.
One example was Batson v. Kentucky, which laid out new rules for what evidentiary standard needs to be met to make a Sixth and Fourteenth Amendment claim. This is obviously a case involving constitutional law even though it was a procedural issue that just defined what kinds of cases can be heard, rather than the base question as to whether there was a constitutional violation if the facts were indeed as the petitioner alleged. But if you can't get a court to hear your claim, you certainly aren't going to win on the merits. So in fact, the new procedural rules affected whether Batson would get what he claimed was his constitutional right: a fair trial.
What does this have to do with whether laws are unconstitutional only after they're declared so, or whether they were always null and void?
Well, after a new constitutional principle is elucidated by the courts, subsequent courts are required to follow it.
But what happens to people who were convicted under the old rule? It depends. If something is of a nature that it is (at least in the opinion of the court) "implicit in the concept of ordered liberty", for example, the courts may decide that the rule should be applied retroactively (and Batson was not). And when the rule has to do with the basic protections and basic issues of constitutional law, it is. For instance, when the death penalty was abolished, every prisoner on death row had their death sentences voided (too bad for the folsk that had already been executed, but dem's da breaks....). But there's a tension; the courts don't want to throw the entire legal system into turmoil and overturn verdicts across the country when constitutional jurisprudence changes only a little. So the courts have tried to balance the rights of prisoners to access to new understandings of the law against the interest of the state in finality of sentences and the integrity and even functionof their penal systems; too big a monkey wrench would open up chaos and endless litigation that would swamp the courts, they seem to say. So a compromise has been reached; in some cases (basically the ones where the new rules are procedural and don't go directly at the rights at issue, the courts have placed limits on which cases and under what circumstances the new rules apply. Even though prisoner "A" may have been able to bring a case showing unconstitutional exclusion on the basis of race from his jury, prisoner "B" may not be able to have that claim heard in court despite the fact that the very same fact situation may have pertained in his case ... because it was decided long ago. The legal fiction is that the prisoner was just convicted under the (supposedly) well-meaning 'understanding of procedural rules carried out in good faith' by the courts way back when, and now we have different "rules" even though the underlying principle (no unfair juries) was always there. All the prisoner is denied is the new, more lax "evidentiary standard" (as applied to showing the underlying constitutional violation), and although he's SOL on his constitutional claims, that's not any violation of the underlying claim because we, the court, haven't even considered the merits there because the old rule (which was a pretty good rule, but maybe not the best) prevented us from even looking at the merits; hell, if we did, he might not evem have been able to prove the violation in fact, and even if he did, he might have been convicted of the actual crime anyway in a new trial....
My take on all this is the court's sleazing out; by pretending that the procedural rules (which, as I noted at the beginning, can and sometimes do make all the difference in the world, including new trials and sometimes different verdicts) are just "bureaucratic" and peripheral issues, and really don't reach to the level of whether someone's constitutional rights are violated, they can pretend that they don't have to extend the rules backwards to give everyone the same legal platform to make their defence. I think that's dishonest. If they're concerned about stability and finality of verdicts, come out and say so.
Similarly, procedural hurdles prevent many cases from being heard in the first place, even when fundamental constituional issues are claimed. For instance, to prove "equal protection" violations, there's been fighting as to whether statistical evidence can be introduced to make the preliminary showing of discrimination to even get in the door. Strangely enough, the RW Supreme Court justices so fond of requiring a high evidentiary burder for making discrimination complaints completely neglected this in deciding to hear Dubya v. Gore, where the events claimed to violate "equal protection" hadn't even happened at the time the Supreme Court decided the case.... Go figure.
See here under "nonretroactivity" and Teague v. Lane for more.
Bart said... LOL!
ReplyDeleteDude, I tried to explain to the groupies around here ...
:::shakes head in amazement:::
Is this not the first time Bart has resorted to ad hominem, teen-age IMspeak and ::::action dots:::?
Jao said...
ReplyDeleteThis, EWO, is the trap of passion-based simplicity, which you crave. The world and the law are not always simple; sometimes even liars tell the truth; and cognitive dissonance is no substitute for reason.
Precisely. There are some people you don't want to trust with any power. And damn few, if any, that can handle absolute power. I could see that, like 50% of the voting population, in the past to elections.
NSA is reportedly surveilling international calls coming from and going to captured enemy telephone numbers.
ReplyDeleteAlready covered this. If the "captured enemy telephone numbers" are the phones of foreign enemies used as the "target" of the international calls, FISA doesn't apply and no warrant is needed.
If HWSNBN here is talking about domestic phone numbers found in laptops, Rolodexes, taxi cab receipts, and any stray New York City telephone directories laying around in an al Qaeda hideout, then the question is whether the evidence is enough to justify the tap (and I'd hope that HWSNBN would agree that a NYC directory isn't enough to institute taps on all the "captured enemy phone numbers" found in it), then FISA does apply if those numbers are made the "target" of any surveillances. If the evidence is good enough to show that the "captured [] phone numbers" actually belong to other "enemy agents", then the tap would be appropriate. Problem is that the FISA law specifies that a court should review this evidence, and issue a warrant based on evidence. Not just let the preznit say so, without any showing to any independent magistrate or equivalent that the evidentiary burden has been met.
If Dubya thinks the evidentiary burden is too high, he can ask that the law be amended, and maybe we can discuss what standard should be used. Funny thing is, he already said it didn't need to be relaxed. What he'd doing is violating the law. And just a FYI, HWSNBN talks about Dubya refusing to "enforce" laws that Dubya thinks are unconstitutional. There is a fair amount of discretion in how and when to enforce laws, and it's arguably an executive prerogative as to how to conduct his own business (not to mention he has some immunity WRT his decisions in doing so as long as they're done in good faith). But that's quite something else than Dubya himself breaking the law!.... A concept that is lost on HWSNBN, of course.
Cheers,
jao,
ReplyDeleteWhen I said your position was essentially, to my mind, similar in its essence to bart's, it wasn't an attempt to dismiss that argument based upon who said what as I went on to explain.
I was talking specificially about the fact that both your argument and barts, as I recall, relied heavily on the concept of a "party with standing" (I forget the exact terminology if that is not it) being able to bring a case in front of the Supreme Court.
That's why I said that my problem with that argument is that it doesn't appear to me that the whole history of Supreme Court cases being dependent on a "party of standing" is going to solve the new problems which have now arisen which are the problems of even FINDING or KNOWING whether a person is a "party with standing" or not.
I said that was because I thought that:
l) the current atmosphere is chilling for any particular party with standing to come forth. There could be reprisals for doing so, as there have been reprisals taken against certain whistleblowers who in earlier days would have had their standing as such respected by a majority and acknowledge as protected by law.
2) The secrecy wall about which Glenn has written so well. In prior times, again, if a woman was denied an abortion because there were laws outlawing abortion, it was obvious she was a "party with standing" to bring a case to the Supreme Court arguing that such laws were in fact unconstitutional and she was in fact harmed by such a law.
Contrast that to a newspaper reporter who doesn't know if his mail is opened by the Government before it is delivered to him or anyone for that matter who may be monitored or eavesdropped on in some way or another without a warrant to do so being granted.
Even eavesdropping on the Mafia required warrants. Now the President has said he alone determines when warrants are required and when they are not but to know if you are a victim of a "search" without a warrant you first have to know if, well, if there was any search.
In our country, as a commenter above very eloquently stated, we have a history of openness. It's central to our whole concept of a government for, by and of the People.
Things like the Freedom of Information Act (and others) were outgrowths of that generally accepted policy of the Government operating in an open matter.
When you change one part of an equation, you have to change the other or you have not going to arrive at the right answer.
As for whether the President should refuse to obey any law he believes, in good faith, are unconstitutional, I am all for that. I would if I were President. Just because someone else makes a mistake, you don't have to compound it. As Janice Rogers Brown so astutely and cleverly stated "The third time is not the charm."
If there are any laws on the books which prevent a President from refusing to obey an unconstitutional law, a view he holds in good faith and after the input of qualified lawyers, I would think those laws should be changed.
Then it would be up to the Supreme Court to decide if the President was right or not, which is what you keep on arguing and I would agree if this were different times, but I am saying now that is, sadly, not going to be enough.
A last point is your thinking I believe in "passion based simplicity".
No, that is incorrect and if you think that, you misunderstand me.
The degree of passion one has is independent of how simple or complex his methodology.
But a passion for rationally derived conclusions, a passion for justice, a passion for truth and a passion for moral laws is not something to be sneezed at.
I think you are referring to my views on moral absolutism. I can assure you the life of a person who believes, as I do, in moral absolutism is anything but simple.
You want to know what you give up in order to be a card carrying member of the "moral absolutist" club?
I can tell you. You give up almost everything you ever had before you decided to become a member of that club.
Almost everything.
But the one thing you gain is worth it to me: you retain full ownership of your own soul.
HWSNBN:
ReplyDeleteDude, I tried to explain to the groupies around here that the President may ignore unconstitutional laws and was ridiculed by well over a dozen posters who had no idea what they were talking about but who took the opposite position to me out of the usual knee jerk ignorance.
I pointed out that this is nothing special to the powers of a preznit, but actually inheres in each and evey one of us as free citizens in a nation of law. We're all entitled to our opinions, and we're all entitled to our day in court, should it come to that. And a jury or our peers too, if it should come to that.... There's nothing that Bart can point to that gives the preznit any more leeway here, or any more privilege in breaking the laws, than each and every one of us has.
And I pointed out some of the ramifications of such "civil disobedience" (as well as some lies or obfuscations by HWSNBN about "advisory opinions", particularly WRT the specific issue here; whether a law is in fact constitutional).
Ignored by HWSNBN, but that goes without saying ... he's a dishonest troll.
Cheers,
HWSNBN:
ReplyDeleteDude, I tried to explain to the groupies around here that the President may ignore unconstitutional laws and was ridiculed by well over a dozen posters who had no idea what they were talking about but who took the opposite position to me out of the usual knee jerk ignorance.
I pointed out that this is nothing special to the powers of a preznit, but actually inheres in each and evey one of us as free citizens in a nation of law. We're all entitled to our opinions, and we're all entitled to our day in court, should it come to that. And a jury or our peers too, if it should come to that.... There's nothing that Bart can point to that gives the preznit any more leeway here, or any more privilege in breaking the laws, than each and every one of us has.
And I pointed out some of the ramifications of such "civil disobedience" (as well as some lies or obfuscations by HWSNBN about "advisory opinions", particularly WRT the specific issue here; whether a law is in fact constitutional).
Ignored by HWSNBN, but that goes without saying ... he's a dishonest troll.
Cheers,
It's all about the war on terror, people. The prez must be able to protect himself... er... us.
ReplyDeleteWe're still checking with the judges. But it seems that Elizabeth Dole, head of the National Republican Senatorial Committee has won the Simon Marshall Award for Unintentional Candor in Presentation of the Republican Message.
It all started earlier this evening when TPM Reader HH was on the receiving end of one of Dole's blast emails begging contributions for the Republican senate committee.
Says Dole, in her pitch: "If Democrats take control of the Senate in '06, they will cancel the Bush tax cuts, allow liberal activist judges to run our courts and undermine all Republican efforts to win the War on Terror. Even worse ..." Now, here you know it's got to be bad. Even I got a little worried and considered sending in some money since losing the War on Terror for America would already be a pretty bad thing for the Democrats to do. But ... well, let's rejoin Dole in mid-moonbat. "Even worse, they will call for endless congressional investigations and possibly call for the impeachment of President Bush!"
And there you have it. Democrats won't stop at surrendering to the terrorists. They'll go as far as investigating President Bush!
That is the election, at least from the vantage point of the White House and the party they control. The president can't afford to lose either house of Congress. Because they've just got too many bad acts and secrets to conceal.
It's even more important than the War on Terror.
-- Josh Marshall
Eyes Wide Open said... In our country, as a commenter above very eloquently stated, we have a history of openness. It's central to our whole concept of a government for, by and of the People.
ReplyDeleteHad (past tense) a history of openness, compared to today at any rate. Those days are over.
eyes wide open:
ReplyDeleteI was talking specificially about the fact that both your argument and barts, as I recall, relied heavily on the concept of a "party with standing" (I forget the exact terminology if that is not it) being able to bring a case in front of the Supreme Court.
See what I said previously about "advisory opinions" and about the ability of folks to have standing to litigate a question before the act. It can be (and has been done). A good example is cases challenging anti-abortion laws immediately on passage, without even a single person having yet been denied an abortion. Injury in fact can be for prospective acts; a person can (under some circumstances) claim that the legal inhibition (or rational fear of the law being imposed) is an injury in itself sufficient to satisfy standing requirements.
Cheers,
eyes wide open:
ReplyDeleteI said that was because I thought that:
l) the current atmosphere is chilling for any particular party with standing to come forth. There could be reprisals for doing so, as there have been reprisals taken against certain whistleblowers who in earlier days would have had their standing as such respected by a majority and acknowledge as protected by law.
In fact, the words "chilling" have been used to establish standing in some proactive cases challlenging laws.
In the case of wiretaps, one might try to claim that one's phone conversations were unduly interfered with due to the "chilling" effect on one's private phone conversations created by knowing that someone might be listening in illegally without a warrant to one's calls. It wouldn't be as slam-dunk a case as someone whose phones were in fact illegally wiretapped, but it might be enough for standing in front of the right judge (and with the right lawyers) *wink* *wink* *ahem* *glenn* *ahem* ....
Cheers,
"bart" wrote:
ReplyDelete"So far, neither the Boston Globe articles you have been citing nor your own posts show that the President does not have these powers."
Reading the Constitution shows that the President does not have these powers. If you want more evidence, try the Federalist Papers, the Declaration of Independence, etc.
bart wrote:
ReplyDelete"There is no case in controversy for the courts to decide until the President interprets a statute as unconstitutional and then acts to violate that statute and in doing so injures a citizen."
He's done that repeatedly, of course.
However, he has also claimed that all information regarding his activities is top secret and protected by the so-called state secrets privilege, preventing anyone who was injured from getting a fair hearing in court. The infamous recent case in New York where even the judge's *OPINION* on the alleged secrets was not made available to the defense attorneys is a particularly Kafkaesque example.
The Guanatanamo kidnap and torture victims, who have been trying for years just to get their cases against the government heard in federal court, provide another clear example of Bush's extreme attempts to avoid allowing legitimate complaints into court.
Plus he's tried to strip the courts of jurisdiction and he's tried to get them to abdicate their jurisdication. (And that's ignoring the practice of stacking the courts with corrupt administration lackeys who won't recuse themselves for obvious conflicts of interest....)
Bart said:
ReplyDelete"However, the Courts have held repeatedly that this Article I provision does not apply to non military personnel, so McCain's bill cannot be based on this provision and apply to agencies like the CIA."
So can you cite or direct me to any court court cases supporting your point that it does not apply to non-military personel?
It seems to me, barring contrary evidence, that the CIA and other agencys are part of the Government which would make them subject to Congressional rule making.
arne, that is interesting (I recall reading about that now that you mention it) about the pro-active possibilities of contesting certain laws.
ReplyDeleteMaybe that is precisely what needs to be resorted to now.
Here's some terrific stuff from Paul Craig Roberts (written in 2005).Scroll by if you don't like him. I think Glenn will not be mad at me for including such a long excerpt, at least I hope he won't.
You could also title this particular article an "Ode to HWSNBN".
End-Timers & Neo-Cons
The End of Conservatives
I remember when friends would excitedly telephone to report that Rush Limbaugh or G. Gordon Liddy had just read one of my syndicated columns over the air. That was before I became a critic of the US invasion of Iraq, the Bush administration, and the neoconservative ideologues who have seized control of the US government....
The evening before Thanksgiving Rush Limbaugh was on C-Span TV explaining that these glorious developments would have been impossible if talk radio and the conservative movement had not combined to break the power of the liberal media.
In the Thanksgiving issue of National Review, editor Richard Lowry and former editor John O'Sullivan celebrate Bush's reelection triumph over "a hostile press corps." "Try as they might," crowed O'Sullivan, "they couldn't put Kerry over the top." There was a time when I could rant about the "liberal media" with the best of them. But in recent years I have puzzled over the precise location of the "liberal media."
Not so long ago I would have identified the liberal media as the New York Times and Washington Post, CNN and the three TV networks, and National Public Radio. But both the Times and the Post fell for the Bush administration's lies about WMD and supported the US invasion of Iraq. On balance CNN, the networks, and NPR have not made an issue of the Bush administration's changing explanations for the invasion....
Apparently, Rush Limbaugh and National Review think there is a liberal media because the prison torture scandal could not be suppressed and a cameraman filmed the execution of a wounded Iraqi prisoner by a US Marine....
In the ranks of the new conservatives, however, I see and experience much hate. It comes to me in violently worded, ignorant and irrational emails from self-professed conservatives who literally worship George Bush. Even Christians have fallen into idolatry. There appears to be a large number of Americans who are prepared to kill anyone for George Bush.....
Liberals are the cause. Liberals are against America. Anyone against the war is against America and is a liberal. "You are with us or against us."
This is the mindset of delusion, and delusion permits no facts or analysis. Blind emotion rules. Americans are right and everyone else is wrong. End of the debate....
That, gentle reader, is the full extent of ... the entire concentrated corporate media where noncontroversy in the interest of advertising revenue rules.
Once upon a time there was a liberal media. It developed out of the Great Depression and the New Deal. Liberals believed that the private sector is the source of greed that must be restrained by government acting in the public interest. The liberals' mistake was to identify morality with government. Liberals had great suspicion of private power and insufficient suspicion of the power and inclination of government to do good.
Liberals became Benthamites (after Jeremy Bentham). They believed that as the people controlled government through democracy, there was no reason to fear government power, which should be increased in order to accomplish more good.
The conservative movement that I grew up in did not share the liberals' abiding faith in government. "Power corrupts, and absolute power corrupts absolutely."
---
Today it is liberals, not conservatives, who endeavor to defend civil liberties from the state. Conservatives have been won around to the old liberal view that as long as government power is in their hands, there is no reason to fear it or to limit it. Thus, the Patriot Act, which permits government to suspend a person's civil liberty by calling him a terrorist with or without proof. Thus, preemptive war, which permits the President to invade other countries based on unverified assertions.
There is nothing conservative about these positions. To label them conservative is to make the same error as labeling the 1930s German Brownshirts conservative.
American liberals called the Brownshirts "conservative," because the Brownshirts were obviously not liberal. They were ignorant, violent, delusional, and they worshipped a man of no known distinction. Brownshirts' delusions were protected by an emotional force field. Adulation of power and force prevented Brownshirts from recognizing implications for their country of their reckless doctrines.
Like Brownshirts, the new conservatives take personally any criticism of their leader and his policies. To be a critic is to be an enemy. I went overnight from being an object of conservative adulation to one of derision when I wrote that the US invasion of Iraq was a "strategic blunder."
It is amazing that only a short time ago the Bush administration and its supporters believed that all the US had to do was to appear in Iraq and we would be greeted with flowers. Has there ever been a greater example of delusion? Isn't this on a par with the Children's Crusade against the Saracens in the Middle Ages?
Delusion is still the defining characteristic of the Bush administration.
When the draft is reinstated, conservatives will loudly proclaim their pride that their sons, fathers, husbands and brothers are going to die for "our freedom." Not a single one of them will be able to explain why destroying Iraqi cities and occupying the ruins are necessary for "our freedom." But this inability will not lessen the enthusiasm for the project. To protect their delusions from "reality-based" critics, they will demand that the critics be arrested for treason and silenced.
Because of the triumph of delusional "new conservatives" and the demise of the liberal media, this war is different from the Vietnam war. As more Americans are killed and maimed in the pointless carnage, more Americans have a powerful emotional stake that the war not be lost and not be in vain. Trapped in violence and unable to admit mistake, a reckless administration will escalate.
So you see, they trade their ideology every once in a while but retain their old names to fool people. You have to have eyes in the back of your head to keep up with these crafty people.
As in: Back to real time. Your friendly Democratic politicians have just defeated several attempts by Republican leaders to get rid of some pork-laden earmarks which throw hundreds of millions of dollars at the same lobbying big "corportists" that the blogosphere "liberal" left keeps howling about.
My own pre-requisite for respecting any person or group's views these days is the same as it has always been.
I will only take seriously anyone who, above all, has a visceral distrust of the type of concentration of power (which usually applies to Government because they have the power to enforce) which can be used to, through force and sometimes force of law, aggresively control the lives of others.
I have always thought that "Power Corrupts" is one of the biggest understatements ever uttered.
The protection against corrupted power is the doctrine of laissez-faire in all its dimensions.
The protection against corrupted power is the doctrine of laissez-faire in all its dimensions.
ReplyDeleteYou need to consider that it had only been a few hundred years since the time when a peasant was hung for taking a sheep for a lamb and Morton's Fork was the method and style of taxation...
Morton's Fork is an expression that describes a choice between two equally unpleasant alternatives, or two lines of reasoning that lead to the same unpleasant conclusion. It is analogous to the expressions "between the devil and the deep sea" or "from the frying pan to the fire".
The expression originates from a policy of tax collection devised by John Morton, Lord Chancellor in 1487, under the rule of Henry VII. His approach was that if the subject lived in luxury and had clearly spent a lot of money on himself, he obviously had sufficient income to spare for the king. Alternatively, if the subject lived frugally, and showed no sign of being wealthy, he must have had substantial savings and could therefore afford to give it to the king. These arguments were the two prongs of the fork and regardless of whether the subject was rich or poor, he didn't have a favourable choice.
Advocates of Laissez-faire today don't give a rat's ass or a gerbil's fart about you or your individual rights. You are just part of the "labor pool" to them. Grow up. It's crypto-fascism if not plain fascism and it kills.
Laissez-faire is short for "laissez faire, laissez aller, laissez passer," a French phrase meaning "let do, let go, let pass." from the French dictionary first used by the eighteenth century Physiocrats as an injunction against government interference with trade, it became used as a synonym for strict free market economics during the early and mid-19th century. It is generally understood to be a doctrine opposing economic interventionism by the state beyond that which is perceived to be necessary to maintain peace and property rights.
In the early stages of European and American economics theory, laissez-faire economic policy was usually contrasted to mercantilist economic policy, which had been the dominant system of the United Kingdom, United States, Germany, Italy, Spain, France and other Western European powers during their rise to power.
The term laissez-faire is largely antiquated outside of certain contexts replaced most often with the term "free market." Some may use the term laissez-faire to refer to "let do, let pass" attitude for concepts in areas outside of economics.1
Laissez-faire today
ReplyDeleteMost modern industrialized nations today are not typically representative of Laissez-faire principles, as they usually involve significant amounts of government intervention in the economy. This intervention includes minimum wages to increase the standard of living, corporate welfare to assist domestic industry, anti-trust regulation to prevent monopolies, nationalized industries usually in areas where monopoly is necessary like utilities, progressive income taxes to even the playing field for middle class and working class people, welfare programs to provide a safety net for those without the capacity to find work or work because of disability, subsidy programs for businesses and agricultural products to stabilize prices - protect jobs within a country - and to ensure economic independence, government ownership of some industry (usually in natural resources), regulation of market competition to ensure fair standards and practices to protect the consumer and worker, and economic trade barriers in the form of protective tariffs - quotas on imports - or internal regulation favoring domestic industry.
However, there are some economies regarded to be Laissez-faire. The most often-cited is Hong Kong. Hong Kong is ranked number one for 12 consecutive years in the Index of Economic Freedom which attempts to measure "the absence of government coercion or constraint on the production, distribution, or consumption of goods and services beyond the extent necessary for citizens to protect and maintain liberty itself." Milton Friedman has praised the Hong Kong Laissez-faire approach to the economy and credits that policy for the rapid move from poverty to prosperity in 50 years. [6] Much of this growth came under British colonial control prior to the 1997 takeover by Communist China.
Like pure communism, pure capitalism has never existed in the reality, except possibly in current-day Somalia however this is more of an anarcho-capitalism which many do not consider true Laissez-Faire capitalism. The closest example are as mentioned previously Hong Kong and then late 1800s USA.
Sounds good to us! The index of Economic Freedom is a bunch of crap and there are plenty of people who have addressed this issue of Hong Kong, again, crap.
Criticism
ReplyDeleteAs both laissez-faire and free markets are largely idealized concepts, critics use similar arguments against both, focusing largely on the inapplicability of any idealized theory of market economy to real world conditions. However some also have critiques of the intrinsic properties of theoretical "laissez-faire", maintaining that it has inappropriate bias of private over public goods, generates pervasive externalities throughout the system that invalidate economic calculation, etc. For example, critics believe that market failures are difficult to address in any meaningful way with market devices alone, and thus require regulation by a guardian central government or necessitate innovations in mechanisms and institutions that would effectively internalize external costs. Critics may consider laissez faire as only an ideological veneer, including for the public a simple type of folk mythology appealing to nostalgic sentiment, obscuring what is actually a system of localist protectionism often associated with typically conservative politics, which in turn may only function in the context of elite-controlled economic expansionism, (or economic imperialism).
Some perceived market failures:
Markets without government intervention are claimed to aggregate into monopolies. One often claimed example of this is Standard Oil. However, it must be noted that when the trial that ultimately resulted in the government-imposed breakup of Standard began, the company was in competition with over 100 other refiners and Standard's share of oil refining was 64% from its high of 88% in 1890.
Markets without oversight are claimed to tend toward collusion as in Archer Daniels Midland
Markets without oversight are claimed to tend toward fraud as in Enron. However, laissez-faire does not mean there is no "oversight." In a laissez-faire system, fraud is illegal, and the state intervenes to stop it. Laissez-faire does not mean the lack of regulation, but the lack of regulations that go beyond protecting individuals from force and fraud.
But pollution and harming the environment... well, that's just fine, because back in the day, the lowly Blacksmith really stunk up the place, but there was only one, and they usually kept him on the edge of the village. And who noticed anyway? It's not like those filthy beggars bathed.
ReplyDeleteShorter Anonymous: Eyes WIde Open's lengthy paeans to the cult of Ayn Rand get awfully tiresome...
ReplyDeleteRicky and Debbie Meet Adam Smith's Invisible Hand!
ReplyDelete(sarcasm tag on )
ReplyDeleteall we have to do is make sure a democrat gets elected president and dems control congress in 2008 election.the republicans will break their necks addressing all sorts of things then before they leave office because they wont want dems to have the same power bush has.
(sarcasm tag off)
br3n
jao said...
ReplyDeletebart today: Feel free to show where I ever said that "FiSA's constitutionality has already been litigated."
bart a few days ago: In the case of the NSA Program, the President has all the past legal authority on his side. There is no reason whatsoever for him to litigate this issue again.
As you well know, the issue to which I was speaking was the legality of the NSA Program, not FISA. The cases to which I was referring all found that Article II of the Constitution grants the President power to conduct warrantless intelligence gathering and that the 4th Amendment does not affect this intelligence gathering.
I won't hold my breath waiting for an apology.
nuf said...
ReplyDeleteBart said "NSA is reportedly surveilling international calls coming from and going to captured enemy telephone numbers."
You are reporting this fantasy as fact.
No, that is what every source including your leakers have said.
This is what the long time AT&T technician said according to Fox "It appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet, whether that be people's e-mail, Web surfing or any other data," whistle-blower Mark Klein, who worked for the company for 22 years, said in a statement released by his lawyers.
This news is several years old. The capability first surfaced in a Clinton era program called Echelon.
Yes, Dems spy too...
However, this is not the particular NSA Program which the NYT identified for al Qaeda.
Dan sadi...
ReplyDeleteFound here.
You misrepresent the law and Glenn's point right there
To start, it would be helpful to readers if you posted what Glenn and I said in that exchange rather than having them and me troll through dozens of exchanges.
bart said...
Glenn: (2) All the court cases he referenced saying that the President has inherent authority to eavesdrop were pre-FISA - NONE ever held that he can engage in warrantless eavesdropping even in the face of a criminal statute making such eavesdropping a crime (come to think of it, I think I made that point, too). One lower court decision (from the applllate FISA court) said in dicta that IF the President has power which the constitution grants, the Congress can't take that away. That's just basic Constitutional law 101, but tells us nothing about whether Congress has the right to regulate how Americans are eavesdropped on.
Bart: Huh?
You appear to be conceding that the Congress does not have the constitutional power to enact statutes which limit or eliminate the President's constitutional power to conduct warrantless surveillance of foreign groups and their agents in America.
FISA pretty clearly requires the President to obtain warrants to perform nearly all surveillance of foreign groups and their agents in America including the surveillance being conducted by the NSA.
This being the case, how exactly is FISA not an unconstitutional infringement on the President's power to conduct warrantless searches?
That is the entire exchange. I do not see how I am misrepresenting Glenn in any way. Just in case he meant something else besides his plain words, I used the term "assume" when I tried to clarify what he said.
You misrepresent the law and Glenn's point right there. He was pointing out only that a court has ruled congress cannot limit the President's explicitly stated powers, ie. congress can not appoint someone else Commander-In-Chief of the military, or decide that from now on the House will nominate Supreme Court Justices for the Senate to confirm.
Perhaps you can point that argument out to me in the concession of Glenn's to which I am replying? This may be an argument which Glenn may have chosen to use if he responded to my post, but it was not in the admission to which I was replying.
Wiretapping is not an explicit power, and it is an incredible stretch to say it is implied by Article II.
Not according to four federal courts of appeal, the Supreme Court which denied cert to review the courts of appeals cases, the FISA court of review and now a handful of FISA judges before the Senate. While this individual power may be implied by the express grant of CiC power, it is well recognized by the courts.
The courts have allowed congress on other occasions to limit presidential powers in areas where the constitution is silent.
Only when the Congress has a concurrent power over the same subject matter area pursuant to a provision of Article I. Several weeks ago, I made a standing challenge for anyone to find me a provision of Article I or even a court case which gives Congress the power to direct and conduct intelligence gathering. I am unaware of any and no one here has found one for me.
Gris Lobo said...
ReplyDeleteBart said:
"However, the Courts have held repeatedly that this Article I provision does not apply to non military personnel, so McCain's bill cannot be based on this provision and apply to agencies like the CIA."
Do a search of the cases which reference this Article I provision. There are dozens.
They all refer to the UCMJ and many refer to whether the UCMJ applies to various civilians who are either working with or for the military.
It might be instructive to actually read the Article I provision at issue:
To make Rules for the Government and Regulation of the land and naval Forces
It is pretty clear that Article I is referring to the combat arms of the military - the army and the navy. While that could logically imply the air force in the future, I know of no case which claims that this provision applies to civilian agencies.
I believe I pointed out a couple days ago the NSA is in fact a technical branch of the Defense Department, and as such would fall under the aegis of Article I, Line 14.
ReplyDeleteI would of course welcome correction on this, with appropriate citations *clearly* demonstarting its independence from the DoD.
This comment has been removed by a blog administrator.
ReplyDeletearmagednoutahere:
ReplyDeleteWhen the secrecy wall comes down, I'm betting we'll discover they're doing all kinds of things that have nothing to do with protecting the USA, except insofar as Bush's private interests are considered one and the same by those in power.
Get thee to a library and read James Bamford's "The Puzzle Palace", where the NSA got sucked in to doing domestic surveillance with an incremental approach; first international drug dealers (which were 'deemed' to be a danger to U.S. national security rather than a law enforcement issue (much less a medical issue), then domestic drug dealers, then ... well, the Church Commission and Otis Pike's House committee revealed enough of the egregious abuses so that the FISA law was passed to make sure it would never happen again.
Cheers,
Bart said: Yes, Dems spy too...
ReplyDeleteThis is stating the obvious. I don't know that anyone on this forum has implied the negative of "Dems spy..." They haven't, however, suggested that Dems spy on ever spied us in a comprehensive, illegal and unconstitutional way.
I can imagine that Dems like Clinton broke the laws on spying on US citizens in the past. But supposing they did so, they did not spy on us with total disregard and lack of regard for what the courts might say. If they did it, they did so in fear and trembling and backed off quickly, understanding that such an activity--if carried out as a normative practice--would indeed threaten something that the courts would not sanction and which the American people would never accept, were they to understand the true nature of this spying.
The attitude of this admin. to the constitutional protections and separation of powers is without shame. It appears not to believe that carrying out such spying activities is an aberration and potentially dangerous. Instead, they seem to think that it's normal and standard operating procedure.
I've never accepted the notion that to fight terrorism you need to adopt practices and behavior that somehow includes lawlessness. For 50 years, the US engaged in a "war" with a world power that had intelligence gathering resources and potential to harm the US in a way that al-Qaeda or any other terrorist group never posed, now poses, or will pose in the future.
During that 50 years there were no doubt times when the President over-reached his authority. But Congress and the courts always responded in an appropriately constitutional way. Even with the massive threat posed by the USSR, however, I do not believe that the President ever took such a reckless and blasé attitude toward the constitution and civil rights of US citizens that this administration is now perceived to exhibit. [edited for typos]
HWSNBN:
ReplyDeleteArticle I does include a provision allowing Congress to make Rules for the Government and Regulation of the land and naval Forces.
However, the Courts have held repeatedly that this Article I provision does not apply to non military personnel, so McCain's bill cannot be based on this provision and apply to agencies like the CIA.
Once again, HWSNBN makes assertions and doesn't bother with any cites to back his assertion up.
This troll would pretend that Congress is "allow[ed]" the privilege of maybe making some military regulations (when in fact it's more of a plenary power), and pretends that this is something that will only be "allow[ed] to the extent that it doesn't get in the way with his Fuehr-- ... ummmm, preznit. But then he sillily goes on to pretend that because Congress is specifically given this plenary power to regulate the military, but there's no such specific provision for civilians, that Congress is powerless to do so for civilians. This is arrant nonsense of course, and reflects quite clearly HWSNBN's strange opinion that the Fuehr-- ... ummmm, sorry again, preznit ... is in fact a dictator in these times of trouble (which willl last until the dictator says otherwise or the Democrats regain the preznitcy, whichever comes first), and that Congress is just window-dressing. But Congress is quite capable of passing laws which affect civilian conduct (murder of government agents, e.g.) or even of civilian government officials themselves (secrecy laws, whistleblower statutes, civil rights laws, etc.)
HWSNBN twists the language to suit his specific political aims here (and will twist it back again the other way when it suits his purposes of that other time ... until it breaks).
But a look at the history and the context makes clear that the Article I, Section 8 language on the military was put in there to make clear to eedjits like HWSNBN that the military is the creation and tool of the democratic arm, Congress, and that even where the civilian preznit is given overall operational control (as opposed to the military on its own), it's the tool of the will of Congress (and he's there to make sure that the will of Congress is carried out).
Cheers,
eyes wide open:
ReplyDeleteThanks for the PCR article. I may not agree with him on everything, but he does note the pathology of the Dubya Republicans.
Here's one thing I disagree with:
Today it is liberals, not conservatives, who endeavor to defend civil liberties from the state.
True taken in isolation, but I think it was true all along. The ACLU (who I doubt anyone would call "conservative") have been in the vanguard of the protectors of "liberties" all along, and amazingly (and to some, irritatingly) consistent about this; defendign Nazis and the KKK just as ferociously as those on the left. Which, FWIW, is something that I understand that Glenn has done as well. They both deserve our respect for their adherence to principle and the rule of law, and their streadfast defence of the individual.
"I may disagree with what you say, but I will defend to the death your right to say it." -- Voltaire
Cheers,
HWSNBN gets caught by "jao" with his pants down:
ReplyDelete[jao]: bart today: Feel free to show where I ever said that "FiSA's constitutionality has already been litigated."
[jao]: bart a few days ago: In the case of the NSA Program, the President has all the past legal authority on his side. There is no reason whatsoever for him to litigate this issue again.
As you well know, the issue to which I was speaking was the legality of the NSA Program, not FISA.
Weasel-words. Even the preznit acknowledges that the NSA program is in contravention to FISA (at least WRT the issue at hand here, which is whether FISA can, consistent with the constitution, require judicial warrants for certain wiretaps). One of HWSNBN's contrary positions must be wrong. If it's Tuesday, maybe the first. Thursday, could it be the second? This lack of principle is what distinguishes trolls like HWSNBN from serious people like Glenn.
Cheers,
the cynic librarian said...
ReplyDeleteBart said: Yes, Dems spy too...
This is stating the obvious. I don't know that anyone on this forum has implied the negative of "Dems spy..." They haven't, however, suggested that Dems spy on ever spied us in a comprehensive, illegal and unconstitutional way.
The only instance of which I am aware that the Clinton's illegally spied on US citizens is when they were rifling through the FBI files of Elephants in the WH basement.
On the other hand, I had no problem with the various data mining programs begin under the Clinton Administration, which were the predecessors to the Bush NSA program. The programs are amazingly affective sources of intelligence. For example, the Able Danger program identified the Atta 9/11 cell before the attack. Bravo to Clinton for bringing intel into the 21st century!
What I find amusing is Dems here also have no problem with these programs so long as there is a Dem president.
Hypocrisy anyone?
HWSNBN shows his ignorance:
ReplyDeleteThis news is several years old. The capability first surfaced in a Clinton era program called Echelon.
Ummmm, nope. Google "Echelon" and you'll find the words "Menwith Hill" right alongside. Read Bamford's books (Read a book? What a novel suggestion...", sez HWSNBN) on the NSA, and the Echelon program is described. It was purposely based on foreign territory to avoid the FISA requirements WRT domestic taps. Read Bamford's first book, "The Puzzle Palace" and the description of the domestic taps and the secret programs to tap at U.S. ground stations (not to mention the willing participation of the cable companies in turning over copies of all international telegraphs to the NSA) to see what occasioned the outrage in the '70s on domestic spying and the subsequent passage of the FISA law.
Thus, the end-around of the Menwith Hill facility (and the passing of information back and forth between the U.K.'s GCHQ and NSA so that each side does the dirty work the other is forbidden to do).
HWSNBN might know this if he bothered himself with a bit of education.
Cheers,
Hitchens the Hacker; And, Hitchens the Orientalist
ReplyDeleteAnd, "We don't Want Your Stinking War!
This is a blistering article by Juan Cole. Someone here posted a day or two a link to Hitchens attack on Cole. This is his reply. You decide which one gets your vote.
I might add that for me personally Mr. Cole would have won if he hadn't printed a single word. The pictures on this page (scroll down to see them) alone make his argument.
This makes me realize something. If there were any real opposition to Bushco's policies or to the war in Iraq (or upcoming Iran) on the part of the Democratic Party (which as you probably know I do not believe there is), they would have an easy job of it to turn people against those policies and these pre-emptive wars.
We have discussed on this blog before that a picture is worth a thousand words.
The Democrats, if they were indeed an opposition party who stood for different policies rather than a bigger slice of the pie, would be publishing pictures like this every day and at every opportunity they had.
A few pictures of Abu Graib did more to stir up outrage in this country than the aggregate sum of every word written about the war up until that point.
The Far Right realizes this but they have to resort to things like Danish cartoons because there are no pictures of "regime change" or George W. Bush's palace in Iraq that can counter all the pictures of the true victims of the carnage that is going on.
Where are the pictures, Hillary? Howard Dean?
Actually, where are the pictures Sen. Feingold?
Juan Cole publishes some of them and he hasn't been sent to Gitmo. Yet.
I suggest that unless some Democrats start to "make it real" by publishing some pictures, just put the War Party label on them and everyone should stop blabbing about November.
If they wanted to win on principle, publishing some pictures would be the way to do it.
BTW, I read that there are severe penalities, even death, for Iraqi doctors or hospitals or reporters who release information on how many are maimed and dying each day in Iraq.
They have been threatened into silence and inaction.
Anyway, Juan Cole concludes:
Because Hitchens's dirty tricks and lies against me are only the beginning. Whoever stands against the Perpetual War machine will be attacked, slimed, marginalized, and destroyed if the warmongers get their way. I don't care. Thus far and no farther.
One, two, three, four. We don't want your stinking war.
This guy's got a lot of guts. I am starting to really like him. What's happening with the Yale offer? Anyone know?
PS. He mentions the upcoming Draft in this article also. Let's start to post lists of all the children of both Republicans and Democrats who are of Draft Age.
Then we can keep our eyes on them when the Draft comes and they start getting their "medical" excuses.
And we can suggest doctors who can give "second opinions" based on reality.
HWSNBN:
ReplyDelete[Dan]: Wiretapping is not an explicit power, and it is an incredible stretch to say it is implied by Article II.
Not according to four federal courts of appeal, ...
Which actually never made any such holding.
... the Supreme Court which denied cert to review the courts of appeals cases, ...
The troll claims that denial of cert can be cited as an opinion on the merits. Don't hire him as an appellate lawyer, or you've got a bozo as a counsel.
... the FISA court of review ...
In throwaway dicta (in a case where the actual holding went contrary to the thrust of what the troll is arguing here). Ditto last comment.
... and now a handful of FISA judges before the Senate....
This from someone who has dismissed the notion of "advisory opinions". ROFLMAO....
What a maroon. No, take that back. A dishonest troll. With a mission.
Cheers,
bart: You either miss the point of my posting or disingenuously assert that what Clinton supposedly did in any way approaches the criminal attitude towards the consitution and civil liberties I described and which I believe the Bush admin. exhibits.
ReplyDeleteIf there's anything I can take away from your reply it is that you believe that Clinton modernized the intelligence services. All fine and good. What you refused to acknowledge in your reply is whether he did this in an overreaction to a threat that does not exist. You also did not show how these modernizations flouted the law, as I believe that the Bush admin. has done.
More specifically, given the threat posed by the former USSR and the resources they could call upon to carry out their devious designs, past Presidents felt no need to attack the constitution in the way that this admin. has.
Before suggesting my own understanding of why the Bush admin. has done this, I'd like to know why you think the threat posed by "terrorists" is as great as or greater than that posed by the USSR. I would also like you to show me why previous admins believed they could surveille the USSR threat and stay within the bounds of the law, while this admin. believes that it cannot do so with regard to the terrorist threat.
HWSNBN sez:
ReplyDeleteSeveral weeks ago, I made a standing challenge for anyone to find me a provision of Article I or even a court case which gives Congress the power to direct and conduct intelligence gathering....
HWSNBN misspelled "the President".
It's a "straw man", though. "[D]irect and conduct" is more aptly spelled "regulate" here.
Cheers,
Another fly in the ointment:
ReplyDeleteIt is pretty clear that Article I is referring to the combat arms of the military - the army and the navy. While that could logically imply the air force in the future, I know of no case which claims that this provision applies to civilian agencies.
IF HWSNBN bothered to read the books I suggested (or just did a little research), he'd find that the NSA actually is a part of the military. Amongst other things, that's where its budget is, and the DIRNSA must be a military officer.
Cheers,
Thank you for that confirmation, Arne. I was starting to wonder at it.
ReplyDeleteewo: I suggest that unless some Democrats start to "make it real" by publishing some pictures, just put the War Party label on them and everyone should stop blabbing about November.
ReplyDeleteNot only the Dems. Cole represents something in this debate that I find is simply morally reprehensible, ie, the disappaearnace of the intelligentsia. Where are the heavy hitting Left academics who supposedly so prize rational debate and open discussion in this time of crisis?
Cole represents something of a rarity: an academic willing to come out of the closet of the ivory tower and actually using all that education for something real and important to the rest of us.
Todd Gitlin has some thoughts and choice words about this in The Chronicle of Higher Education.
In this perverse climate, dissenting intellectuals might gain some traction by standing for reason. They might begin by asking how it came to pass, over recent decades, that reason in America was defeated. They might explore the subject of public ignorance, its origins, tactics, and prospects. They might also study contrary tendencies, including scientists' resistance to ignorance. They might investigate how it happened that the academic left retreated from off-campus politics. They might consider the possibility that they painted themselves into a corner apart from their countrymen and women. Among the topics they might explore: the academic left's ignorance of main currents of American life, their positive tropism for foreign saviors, their reliance on intricate jargon, their commitment to keeping up with post-everything hotshots of "theory" from more advanced continents. Instead, in a time-honored ritual of the left, a number of academic polemicists choose this moment to pump up rites of purification. At a time when liberals hold next to no sway in any leading institution of national government, when the prime liberal institution of the last centuryorganized labor wobbles helplessly, when most national media tilt so far to the right as to parody themselves, the guardians of purity rise to a high pitch of sanctimoniousness aimed at ... heretics. Liberals, that is.
jao:
ReplyDelete(For that matter, the Fourth Amendment issue you now raise has never been decided by the Supreme Court, either.)
True. There's some judicial noise about a distinction between "intelligence surveillance" and those done for purposes of "criminal investigation" (and thus the famous "wall" to prevent one from tainting the other). But I'd point out that the warrant requirement (and the right to privacy) is in the Fourth Amendment, and separate from those involving criminal procedure and due process detailed in the Fifth and Sixth Amendments. Contextually, the Fourth Amendment may be closer to the Third Amendment than it is to the subsequent ones.
Cheers,
Arne Langsetmo said...
ReplyDeleteHWSNBN shows his ignorance:
This news is several years old. The capability first surfaced in a Clinton era program called Echelon.
Ummmm, nope. Google "Echelon" and you'll find the words "Menwith Hill" right alongside. Read Bamford's books (Read a book? What a novel suggestion...", sez HWSNBN) on the NSA, and the Echelon program is described. It was purposely based on foreign territory to avoid the FISA requirements WRT domestic taps.
Do you find it a pain to keep sweeping up all the straw around your computer from all the strawmen you keep erecting and knocking down?
My friend, the Fox News piece on the NSA's ability to "vacuum up" email was the subject. I merely pointed out that this capability is several years old. Then you go off on this tangent about the location and legality of Echelon.
Try to stay on subject or get some help for that ADD.
This comment has been removed by a blog administrator.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteArne Langsetmo said...
ReplyDeleteAnother fly in the ointment:
Bart: It is pretty clear that Article I is referring to the combat arms of the military - the army and the navy. While that could logically imply the air force in the future, I know of no case which claims that this provision applies to civilian agencies.
IF HWSNBN bothered to read the books I suggested (or just did a little research), he'd find that the NSA actually is a part of the military. Amongst other things, that's where its budget is, and the DIRNSA must be a military officer.
Which part of "combat arms of the military" did you not understand?
However, since you must be right, you will have no trouble providing us with case law showing the application of the UCMJ to the NSA.
Arne Langsetmo said...
ReplyDelete[Dan]: Wiretapping is not an explicit power, and it is an incredible stretch to say it is implied by Article II.
Bart: Not according to four federal courts of appeal...
Which actually never made any such holding.
Stop lying. I have posted this case law for you about a dozen times now. You obviously have not read it.
... the Supreme Court which denied cert to review the courts of appeals cases, ...
The troll claims that denial of cert can be cited as an opinion on the merits. Don't hire him as an appellate lawyer, or you've got a bozo as a counsel.
You are a fool. Any appellate lawyer worth his or her salt will always note when cert has been denied on a case upon which they are relying. The fact that a higher court looked at the lower court decision and allowed it to stand is the next best thing to an opinion affirming. The fact that the Supremes were addressing these questions with opinions and declined to review my case law is pretty good evidence that they did not disagree with the opinions I cited.
... the FISA court of review ...
In throwaway dicta (in a case where the actual holding went contrary to the thrust of what the troll is arguing here). Ditto last comment.
Fool, dicta is persuasive rather than controlling. It is hardly throwaway. Rather, dicta is often relied upon by appellate attorneys when there are no decisions on a particular point or the existing decisions predated a particular law as in the case of FISA. In this case, the FISA court of review found it a no brainer that the prior case law controlled and FISA did not apply.
... and now a handful of FISA judges before the Senate....
This from someone who has dismissed the notion of "advisory opinions". ROFLMAO....
Testimony before the Senate probably would not be cited in any brief. However, it is a good indicator to any attorney considering whether to bring an issue before the FISA court what the resulting opinion might hold. Based on the comments by the FISA court and the court of review rejecting your positions, I would not be at all confident about a favorable outcome for your argument before those courts.
Free legal advice for a man who has obviously has a fool for a client.
ret said...
ReplyDeleteThe lawlessness that the Bush Administration has engaged in did not come out of a vacuum. As I look around me, the culture tells me that people are doing pretty much what they want to: passing on the right, driving too fast, running stop signs, lying, manipulating facts and, my "favorite,"generally indulging in "situational ethics."
I'm not sure you know what situational ethics is. It's too early... I haven't had my coffee yet or I would have more to say.
Situational ethics (also known as Situationism) refers to a particular view of ethics that states: the morality of an act is a function of the state of the system at the time it is performed. [1]. This is frequently confused with moral relativism, which states that there is no universal moral truth, that there are only beliefs and perspectives, none more valid than another. Situational ethics by itself does not say whether there are universal truths or not; it only says that the state of the system at the time of an act must be included in consideration of the act.
The term situational ethics has been broadened to include numerous situations in which a code of ethics is designed to suit the needs of the situation.
The original situational ethics theory was developed by Joseph Fletcher, an Episcopal priest, in the 1960s. Based on the concept that the only thing with intrinsic value is Love (specifically agapē), Fletcher advocated a number of controversial courses of action.
Opponents are usually moral universalists who view situational ethics, in its purest sense, as inherently contradictory, and argue that the very term "situational ethics" is an oxymoron. They argue that ethics and morality are fundamental and cannot be based on practical, functional, or ethno-centric values; therefore, ethics must be based on something more persistent than one group's assessment of their current situation.
Proponents who are also moral universalists respond that the opponent has misinterpreted situational ethics: Complexity does not mean contradiction, though it may seem so from a simplistic view of a situation. Those who are not might respond that the desire for, or belief one has arrived at, universal ethical principles is part of a group's assessment of their current situation.
Situated ethics is an entirely different theory in which it is the actual physical, geographical, ecological and infrastructural state one is in, that determines ones actions or range of actions - green economics is at least partially based on that view. It, too, is criticized for lack of a single geographically-neutral point of view from which to apply standards of or by an authority.
Moral (or ethical) universalists or absolutists are the nut bars who picketed Teri Schiavo's hospice. The politicians who put them up to it are corrupt and superficial manipulative opportunists who have no integrity or ethics and whose moral compass always points to their own pocket.
Hypocrites.
Thomas Jefferson ...
ReplyDelete"Nothing is more likely than that [the] enumeration of powers is defective. This is the ordinary case of all human works. Let us then go on perfecting it by adding by way of amendment to the Constitution those powers which time and trial show are still wanting." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419
"Though we may say with confidence, that the worst of the American constitutions is better than the best which ever existed before in any other country, and that they are wonderfully perfect for a first essay, yet every human essay must have defects. It will remain, therefore, to those now coming on the stage of public affairs, to perfect what has been so well begun by those going off it." --Thomas Jefferson to T. M. Randolph, Jr., 1787. ME 6:165
Jao said.... Thanks again for raising this important issue of Bush's credibility with the jury here in the Court of Public Opinion -- the only court where Bush's advocates dare show up to play. In real courts with real judges, they would be spanked severely.
ReplyDeleteMister President, tell it to the judge.
What really galls Bart, and the rest of them, that 32% of the backwash, is that Bush's lack of credibility with the SAmerican people is the real issue here. Clinton would have been opposed as well for trying this, but not so much for people feeling he couldn't be trusted.
Shorter Anonymous: Eyes WIde Open's lengthy paeans to the cult of Ayn Rand get awfully tiresome...
ReplyDeleteThis is such a riduculous statement for the following two reasons:
l) If you understood the words "laissez-faire" you would understand that you have the right to scroll by my posts and you can spare yourself the (yawn) ennui. If you get "awfully tired" by my posts, it's an injury which is self-inflicted.
You must be a masochist. Did you ever consider joining Opus Dei or are you already a member?
If Glenn gets tired, I'll happily desist immediately. It's his blog. Otherise, you could always try sending him a petition. Maybe if you're persuasive enough, he'll grant your wish.
2) I have never written one word in praise of the "cult of Ayn Rand" or one word in praise of any of her followers or any of their ideas or lack thereof. I write many words in praise of Ayn Rand's ideas as expressed in her own words.
If you knew anything at all about the things you write about, you'd be aware that the single biggest critic of "the cult of Ayn Rand" and most of the "cultists" who attached themselves to her for various reasons was Ayn Rand herself who wrote extensively about that.
"Cultism" is the opposite of "individualism." Cultism is based on personality worship. It's faith based and has little to do with reason.
ender: I vote nay and I always read your posts to the end :)
Arne introduced some fascinating thoughts yesterday which gave me an idea about which I will write later.
jao, do you support the Bush Presidency in general, with the exception of the refusal to submit to judicial review?
From Bart at 1:21PM:
ReplyDelete"Which part of "combat arms of the military" did you not understand?
"However, since you must be right, you will have no trouble providing us with case law showing the application of the UCMJ to the NSA."
Unless I'm misreading Article I, Line 14, there is NO distinction between the 'combat arms' and the plain old military within that particular clause. Unless of course there is some super-secret code hidden within there, that is.
Otherwise, its pretty clear the Congress can regulate the conduct of all branches of the military, not just those that we'd classify as 'combat arms'.
Bart, will you please just concede you don't have a leg to stand on with this issue and give it a rest? Its becoming embarrassing to see you like this.
HWSNBN continues his dissembling:
ReplyDelete[Arne]: IF HWSNBN bothered to read the books I suggested (or just did a little research), he'd find that the NSA actually is a part of the military. Amongst other things, that's where its budget is, and the DIRNSA must be a military officer.
Which part of "combat arms of the military" did you not understand?
I wonder which part of "to make rules for the government and regulation of the land and naval combat forces" the troll sees in his fevered hallucinatory visions of the Constitution. But please do try to tell the crews of the U.S.S. Libery and U.S.S. Pueblo that they weren't part of the "combat arms".
But the troll proves too much even if you're going to adopt his strained distinctions here; if the NSA is not part of such, then if Dubya's CinC of such and can't be gainsayed in his "operations" thereof (something HWSNBN has been screaming to the heavens for months now), that hardly prevents Congress from regulating the actions of the NSA, does it?
Cheers,
yankeependragon:
ReplyDeleteThank you for that confirmation, Arne. I was starting to wonder at it.
Additional note: One of the considerations (alluded to in my Ph.D dissertation above) as to whether a rule should be applied retroactively is whether a court at the time of the original decision under question WRT whther retroactivity applies would have applied the new rule if they'd thought of it (or at least something like that). This is something like saying: If the rule would have been obvious at the time, it would indeed have been the proper law at the time. Which kind of answers the question of whether something that's obviously unconstitutional was always unconstitutional. But they don't phrase it quite like that when they talk about it legally.
Note that there are additional hurdles to overcome even if this condition is met as to whether you can reopen your case; you may have been screwed by an unconstitutional law but may be just SOL procedurally for other reasons ... kind of like you may be able to prove absolute innocence but still not get a court to hear your case if you don't fall into one of the specific conditions for reopening cases past appeals deadlines ... and you'll have to rely on the likes of Guv'nuh Dubya to pardon you if you want the justice obviously due you).
The legal system is funny in some respects ... and not humourously funny, if you're the petitioner.
Cheers,
HWSNBN blathers:
ReplyDeleteYou are a fool. Any appellate lawyer worth his or her salt will always note when cert has been denied on a case upon which they are relying.
Yep. Considered common courtesy to indicate the procedural history of the case. What this means is the lower court decision was pretty much final, but carries no implication that the Supreme Court weighed in on the merits. The lower court decision's holding is thus "good law" and may be cited, but it is not mandatory authority on any other circuit (or state). But of more note for the troll's bloviations here, there is no Supreme Court imprimatur on the decision (which is what the troll's implying in saying: "... the Supreme Court which denied cert to review the courts of appeals cases, ...."
HTH clear things up for the lurkers here.
Cheers,
HWSNBN:
ReplyDeleteFool, dicta is persuasive rather than controlling.
HWSNBN fails to consider that even I am "persuasive". But out-of-context dicta that doesn't even support what the troll alleges it supports, and in a case which went the other way from his hallucinatory "unrestricted powers", is hardly even "persuasive" ... other that to people who want to "build their 'facts' around the case".
Pretending dicta is some judicial decision of great authority is legal foolishness.
Cheers,
I was referring to you clarifying the NSA was indeed part of the DoD.
ReplyDeleteYou're earlier clarification was, dare I say it, clear enough.
Thanks again.
HWSNBN is really confused here:
ReplyDelete... dicta is often relied upon by appellate attorneys when there are no decisions on a particular point or the existing decisions predated a particular law as in the case of FISA. In this case, the FISA court of review found it a no brainer that the prior case law controlled and FISA did not apply.
From the holding in In re: Sealed Case:
"We, therefore, believe firmly [...] that FISA as amended is constitutional because the surveillances it authorizes are reasonable. Accordingly, we reverse...."
HWSNBN is a moron.
Cheers,
HWSNBN:
ReplyDeleteFree legal advice for a man who has obviously has a fool for a client.
I'd rather have a fool for a client than a fool for a lawyer. But if you're actually tendering "legal advice" here, Mr. De Palma, you might think about what the Colorado bar thinks about the stuff you're flogging and the manner of your floggin it.... ;-)
Cheers,
yankeependragon said...
ReplyDeleteFrom Bart at 1:21PM: "Which part of "combat arms of the military" did you not understand?
yankee: Unless I'm misreading Article I, Line 14, there is NO distinction between the 'combat arms' and the plain old military within that particular clause. Unless of course there is some super-secret code hidden within there, that is.
No code, only plain English.
This provision of Article I by its own words limits itself to the army and navy - which were the uniformed combat services of the time. It did not apply to civilians like the War Department of the time.
This comment has been removed by a blog administrator.
ReplyDeleteArne Langsetmo said...
ReplyDeleteHWSNBN fails to consider that even I am "persuasive".
:::heh:::
Let's see an example of your "persuasiveness"...
But out-of-context dicta that doesn't even support what the troll alleges it supports
I dunno, let's read what the FISA court of review wrote in In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002):
“[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . We take
for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
Exactly how does this word for word not support my position and completely reject yours?
From Bart at 4:04PM:
ReplyDelete"This provision of Article I by its own words limits itself to the army and navy - which were the uniformed combat services of the time. It did not apply to civilians like the War Department of the time."
I see. So we're now stuck with the worldview as it existed in the late 1790s when it comes to...what exactly? Civilian control of the military? The instinctive distrust of standing armies?
Guess that means the entire DoD structure is completely extra-Constitional, meaning its either illegal in the purest sense of the word or has no legal restraints upon it whatsoever.
Please, clarify what you mean here, Bart. Every answer you give just leads to more and more questions.
Hey Bart,
ReplyDeleteIf you are intellectual honest about the "discovery process" of finding out "why" reasonable people think that Bush has broken Constitutional Law - you might start here:
http://www.nybooks.com/articles/18650
Just now on CNN: Democratic talking head, Paul Begala: [I paraphrase] "Some people want to impeach the President." (with appropriate hand gestures) "People way out there on the left."
ReplyDeleteMore good reasons why Bush and his "legal defence" of his "powers" is/are criminal and Unconstitutional:
ReplyDeletehttp://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf
Get with the program you liberal wimps! George W. Bush is The Decider In Chief-He Decides! War, law, what's the difference?
ReplyDeleteHWSNBN continues bloviating:
ReplyDelete[Arne]: But out-of-context dicta that doesn't even support what the troll alleges it supports
I dunno, let's read what the FISA court of review wrote in In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002):
"[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. [...] We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
Covered ad nauseam in previous posts, but HWSNBN refused to listen.
As pointed out, out of context:
The origial start to that quote:
"The Truong court, as did all the other courts..."
And the sentence immediately after that quote:
"The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approximates a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasoable."
(my emphasis, for the benefit of brain-dead trolls here)
IOW, the alleged Truong "holding" (in a case that actually decided that the searches there were not constitutionally reasonable) was the "reverse" (their words, not mine) of what was under consideration and thus is of no support to the In re: Sealed Cases decision. This unsupported (and actually incorrect) throw-way paragraph HWSNBN lifts out of context is thus dicta.
In re: Sealed Case concerned (in part, WRT the ACLU and NACDL briefs) whether, under FISA as amended in 2001, FISA searches contravene the Fourth Amendment when a "significant purpose" of the snooping is the acquisition of "foreign intelligence information". It had essentially nothing to do with whether Dubya can snoop in contravention of FISA.
Not to mention, if you want to use the holding of a prior case to support your claims, you should cite it directly. What someone else says about it in dicta is not as accurate as the original source (of which, In re: Sealed Case provided only the Truong cite).
Exactly how does this word for word not support my position and completely reject yours?
Ummmm, it shows HWSNBN is a blow-hard and a fool. Not that this very demonstration hasn't been repeated multiple times in response to HWSNBN's repeated emission of this miasma. Clear enough for everyone?
Cheers,
just one word to describe the
ReplyDeleteplanned hearing by Saint Spector.
Farce
definition of the word farce:
A light dramatic work in which
highly improbable plot situations,
exaggerated characters, and often
slapstick elements are used for
humorous effect.
A ludicrous, empty show; a mockery.
Farce = Republican oversight.
The Republicans had better pay Diebold an extra $Billion. Thats
the only way the Voters will not send them packing, come November.