SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war. . . .
Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.
Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration's legal theory is "just wrong" and called its failure to acknowledge the paper "scandalous."
"How can you not talk about Federalist 69?" he said. "All you have to do is go on Google and put in `Federalist Papers' and `commander in chief' and it pops up."
The most astonishing aspect of these lawbreaking scandals is how straightforward and easily resolved they are. The administration deliberately invokes all sorts of obfuscating legalisms to cloud the issues, but few things are clearer than the fact that Bush's claim to possess unchecked and unlimited power in the area of national security and terrorism -- a view grounded in the Yoo theory -- is not just a deviation from, but is the very antithesis of, the principal goal of the Constitution's framers: namely, to ensure that there is no such thing as unchecked power in our system of Government, but only power that is constantly restrained and balanced by the other two branches.
Beyond those conceptual issues, Justice Antonin Scalia -- as I discuss at length in my book -- conclusively demonstrated in his opinion in Hamdi v. Rumsfeld, that Federalist 69 by itself precludes Bush's claim that Article II bestows to him unlimited powers to act with regard to all matters concerning national security (including measures taken against U.S. citizens on U.S. soil):
Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:
“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.”
Those who claim that Article II somehow vests unrestrained power in the President to act with regard to all national security matters do not ever address this question, because they cannot: how do the powers which they seek to vest in George W. Bush differ from those possessed by the British King? They do not. The whole point of Fedearlist 69 -- and one of the principal points of the Federalist Papers generally -- is to assure worried Americans that the creation of the office of the President would not result in a new King in the area of national security. As Savage reports:
Alexander Hamilton, wrote Federalist 69 in 1788, as the nation was debating whether to ratify the Constitution. At the time, many Americans feared that the proposed Constitution might concentrate too much power in the president. Having just fought a war to rid themselves of the British king, they did not want to end up with a home-grown dictator.
The Constitution called for the American president, like the British king, to oversee the nation's military. But in Federalist 69, Hamilton explained that the American commander in chief's powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as "nothing more" than the "first general" in the military hierarchy. The commander in chief's powers are "much inferior" to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.
A President who can exercise power with which neither Congress nor the courts can "interfere," and who can exercise those powers even in violation of laws duly enacted by the American people through their Congress, is a President who, by definition, has the powers of a monarch -- the very situation which, as Scalia explains, is what the Founders sought, first and foremost, to avoid. The "idea" that the very Founders who waged war to escape the rule of a King would create a Constitution which creates a new monarch is too frivolous to merit real debate. And Federalist 69, by itself, makes that clear. If any reporters other than Savage have read Federalist 69, there would be more stories informing Americans of how clear that is.
The most tragically hilarious part of Savage's article is the reaction of John Yoo to the claim that he has fundamentally distorted the plain meaning of the Federalist Papers when constructing his President-as-King theories:
Citing similar passages in other Federalist Papers, John Yoo, a former official in the Bush Justice Department, added that Federalist 69 is just one among many records of the founders' thinking, some of which are contradictory or misleading. In his recent book, ``The Powers of War and Peace" (Chicago), Yoo dismissed Federalist 69 as ``rhetorical excess" that exaggerated the difference between a king and a president.
"Fed 69 should not be read for more than what it is worth," Yoo, who is now a Berkeley law professor, wrote in an e-mail.
So the chief architect of this administration's theories of presidential power thinks that Federalist 69 -- one of the principal documents from the Founders regarding the scope and limits of presidential power -- is mere "rhetorical excess" which ought to be ignored, or at least it ought not "be read for more than it is worth." I supposed Yoo's authoritarian fantasies of the all-powerful One Man Ruler ought to be given more weight than the promises and commitments made by the Founders in order to persuade their fellow citizens to ratify the Constitution.
It should not come as a surprise that the Bush administration's theories of presidential power -- which are guiding how our country is governed and which have spawned abusive scandal after scandal -- relies upon the view that the views of the founders ought to be ignored. Federalist 69 is not all that long. All reporters could read it quickly and understand it easily. Like Savage did, they ought to. Perhaps then they could realize -- and then inform the country -- that the powers claimed by Commander-in-Chief George W. Bush are the very opposite of the core, defining principles of our country.
* * * *
I will be on the Al Franken Show from 1:30-2:00 p.m. EST to discuss How Would a Patriot Act? Tonight, I will be in Philadelphia for a book event, sponsored by Drinking Liberally, beginning at 6:00 p.m., at Higher Grounds Cafe -- 631 North 3rd St., Philadelphia, PA 19123. Tomorrow (Tuesday), I will be in Boston for another Drinking Liberally book event, beginning at 6:00 p.m., at the Middlesex Lounge -- 315 Massachusetts Ave, Cambridge, MA.
Thank you , Glenn, for all that you do.
ReplyDeleteIs the DL event 21+? It'd be disappointing to not be able to go because of my age.
ReplyDeleteIs the DL event 21+? It'd be disappointing to not be able to go because of my age.
ReplyDeleteI think you can get in, just not drink. On the Working Assets site, there is a phone number. You should call and ask - or just show up and ask to speak to one of the organizers, or me, and we will do everything possible to make sure you can get in.
I'm always glad to be pointed toward the federailist papers (all of which can be found here, by the way because they remind me of just how far away we have come from the thinking of the founders. This particular passage stands out to me:
ReplyDeleteThe legislature of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.
The founding fathers did not think that a standing Army was necessary and did not trust the executive branch with the power to keep one.
The idea that the executive who isn't even allowed to HAVE an Army except through the consent of the legislature can nevertheless order spying on American citizens not only withoput the consent of the legislature but in defiance of law already signed by a previous executive, just flies in the face of everything our constitution stands for.
Great comment Glen, and thanks for highlighting the terrific reporting being done by the Boston Globe's Charlie Savage. He actually read Federalist 69 and did his homework. Now there's someone who truly deserves a Medal of Freedom.
ReplyDeleteThe interesting thing about the quote from Yoo, which you strongly hint at, is that Yoo is saying the Constitution should be read, in light of all the Federalist Papers, as establishing a President that is little different from the King of England (not the current Queen of England, mind you, but George the 1st!) That is an astonishing claim, and it should be widely exposed.
The view that George II should have the same dictatorial powers as George I had in 1776, long before Parliament made the monarchy a figurehead, is every bit as extreme as the extremist statements you rightly call out in your post on Insta-, Malkin, et al.
Following the old adage, "Don't believe what I say, watch what I do." The belief system of those presently in power is fairly clear.
ReplyDeleteThe problem we have now with Bush&Co is that simply do not believe in the concept that government should be limited. Instead, they believe in power and their rights as oligarchists to exercice all of the power they can amass. The problem with the citizenry is that they cannot believe that we are currently ruled by people who do not belive in the basic precepts that have guided this country since independence. Generally, it is simply outside most people's comprehension that Bush&Co have supplanted and carefully architechted the legal basis for an emerging demise of democracy and a burgeoning totalitarian legal and technical infrastructure.
Bush&Co is like an adolescent testing the limits of the authority of parents. They are testing and finding that the citizenry is totally oblivious to the growing power in Bush&Co to control all aspects of politics.
For Bush&Co, an argument like the one made by Yoo and citations to the Federalist Papers are merely rhetorical exercises constructed for the purpose of furthering the deception of the people. Bush&Co is going about the exercise of raw power and the destruction of all that the Constitution and the Federalist Papers stand for.
Thank you! Wonderful comment.
ReplyDeleteSomeone asked a while back why I persisted in "engaging" Bart. I did so out of genuine curiosity how--in detail--one could construe the constitution to come up with a totally unconstrained President.
It finally became clear that what it takes is a deliberately lopsided reading of two clauses. It's clear from Federalist 69 that the power of the Congress to regulate the military and the President's role as CiC are meant to be parallel, and to check one another. What authoritarians do is interpret the Congressional power absurdly strictly (they read it as little more than a right to enact the UCMJ), while treating the CiC power as both expansive and possessing an enormous penumbra which extends to all defense-related issues.
It's a neat trick, and with enough pliant Justices it may even one day become the "official" view of the Constitution. On that day, the Consitution's "original intent" (meaning here the basic principles which underlie the document) will have died.
Following the old adage, "Don't believe what I say, watch what I do." The belief system of those presently in power is fairly clear.
ReplyDeleteThe problem we have now with Bush&Co is that simply do not believe in the concept that government should be limited. Instead, they believe in power and their rights as oligarchists to exercice all of the power they can amass. The problem with the citizenry is that they cannot believe that we are currently ruled by people who do not belive in the basic precepts that have guided this country since independence. Generally, it is simply outside most people's comprehension that Bush&Co have supplanted and carefully architechted the legal basis for an emerging demise of democracy and a burgeoning totalitarian legal and technical infrastructure.
Bush&Co is like an adolescent testing the limits of the authority of parents. They are testing and finding that the citizenry is totally oblivious to the growing power in Bush&Co to control all aspects of politics.
For Bush&Co, an argument like the one made by Yoo and citations to the Federalist Papers are merely rhetorical exercises constructed for the purpose of furthering the deception of the people. Bush&Co is going about the exercise of raw power and the destruction of all that the Constitution and the Federalist Papers stand for.
Glenn:
ReplyDeleteHere is the entire section of Federalist 69 concerning the President's powers as CiC, rather than the portions taken out of context:
The President is to be the 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. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States. In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York.
Interesting passage given the comparisons here of Mr. Bush to "King George." You will notice that intelligence gathering appears to be among the "power[s] of the President [that] will resemble equally that of the king of Great Britain" as it is not among the exceptions below noted by Mr. Hamilton.
The most material points of difference are these:
First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.
OK, so far, the President may not call up the state militia at will. Nothing about intelligence gathering.
Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.
Hamilton actually says nothing here of substance which contradicts Mr. Yoo. The phrase "In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it" is in fact a rhetorical flourish meant to sell the Constitution to a population which did not desire another king.
Parliament in fact held the power of the purse and the ability to raise armies in Britain at this time. King George actually went to Parliament and requested the funding to go to war to put down the Revolution. Therefore, the allocation of these same powers to Congress was not really much of a difference.
In any case, as I have pointed out repeatedly, the courts have consistently held that the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II which make him the "sole organ of foreign policy" (Supreme Court's words), the sole executive as well as the CiC.
In contrast, the Article I provision which allows Congress to regulate only the Army and Navy, has been only held to allow Congress to pass laws like the UCMJ to regulate the good order and discipline of the uniformed services. Nary a word about allowing the Congress to direct intelligence gathering, which is by definition an executive function.
Nothing in Federalist 69 contradicts any of this court precedent.
Concerning Bart.
ReplyDeleteI have enjoyed reading and contending with Bart, but I cannot understand him and others like him who seem to desire an all-powerful Unitary Executive. When one reads history, nations that become lead by the likes of Bush&Co quickly lose their sparks of crativity, lose their prosperity, and eventually fall into tyranny and chaos. I wonder what security Bart thinks he, as a citizen, can achieve by relinquishing his freedoms?
What kind of world will Bart live in twenty years hence? Free or impoverished?
Nobody said...
ReplyDeleteConcerning Bart. I have enjoyed reading and contending with Bart, but I cannot understand him and others like him who seem to desire an all-powerful Unitary Executive.
I don't believe I have ever used the term "Unitary Executive" nor have I ever said that Yoo's opinions are completely correct.
I follow the law as laid down by the text of the Constitution and the court cases which have interpreted this text.
I am curious. Without looking it up, give us your understanding of "unitary conservative."
Glenn, This is a very important posting in my estimation; it points up the crossroads that this country is at in regard to whether it will continue its revolution in democracy or give in to the tensions within every democracy and become what some call a democratic tyranny.
ReplyDeleteDe Tocqueville expressed it nicely when he states in Democracy in America — Volume 2, Book 4, Chapter 6 [see links to downloadable files of this work here:
Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite; they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large that holds the end of his chain. By this system the people shake off their state of dependence just long enough to select their master, and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience.
Later, he adds:
It is in vain to summon a people, which has
been rendered so dependent on the central power, to choose from time to
time the representatives of that power; this rare and brief exercise of
their free choice, however important it may be, will not prevent them
from gradually losing the faculties of thinking, feeling, and acting for
themselves, and thus gradually falling below the level of humanity.
Cheney et al. are intimately aware of the contradiction inherent democracy. They exploit the cracks and fissures that appear in the struggle to maintain a balnce between equality and freedom. As Tocqueville points out (and which Claude Lefort has explained so well), this struggle can degenrate into a democratic tyranny--the threat posed by poeple retreating into their isolated privacies ultimately destroys their will to freedom, just as long as they have their cherished immediate circle of friends and family. They are willing to give up freedom to safeguard that privacy, that equality among others.
In their push for power, the neoconservatives have taken the notion of a democratic elitism one step further. At least when Walter Lippmann formulted the notion, he assumed that the masses could bring about a return to the status quo via elections. Lippmann, however, had no way to imagine the complete and utter control that those usurping power have when they control the press and media.
Hey Bart,
ReplyDeleteI'm still waiting for a reply to my question on Glenn's earlier post on Specter's shenanigans. I bring it up because here, you emphasize the President's article II powers as being those of "the sole organ of foreign policy".
For wiretapping, of course, the problem is with surveillance on domestic soil, of US citizens. So, I'm still interested in hearing your answer to my question, which I'll repeat here:
-----
I'm not entirely clear on how you resolve the collision between the President's Article II powers, which you believe allow him the unrestricted right to surveil the enemy, and the 4th Amendment, which protects citizens within the US.
I gather you believe that court precedent allows US citizens that are acting as enemy agents to be surveiled without a warrant even on US soil? Of the raft of cases you have cited, is there one in particular I can refer to to learn more about this claim?
maiken said...
ReplyDeleteI'm not entirely clear on how you resolve the collision between the President's Article II powers, which you believe allow him the unrestricted right to surveil the enemy, and the 4th Amendment, which protects citizens within the US.
I gather you believe that court precedent allows US citizens that are acting as enemy agents to be surveiled without a warrant even on US soil? Of the raft of cases you have cited, is there one in particular I can refer to to learn more about this claim?
The courts have held that the President may gather intelligence from foreign groups and their agents in the US without a warrant under the 4th Amendment. However, when the primary purpose of the surveillance changes to collecting criminal evidence, then the 4th Amendment requires a warrant. The courts held that evidence of criminal evidence gathering includes Justice directing the surveillance while constructing a case.
The best case on this point is United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), where the court admitted evidence of intelligence gathering but not that collected by DOJ against a Vietnamese spy. However, all of my cited cases are basically on point. There is very little discrepancy between the courts on this point of law.
And why is Yoo a professor at Berkeley? when anyone, even my dog, could refute his argument, an argument bought and evidently paid for by the Addington faction trying to control the DOJ. They needed someone to write their rationalization and they got him in Yoo.
ReplyDeleteWe see their 'principles'.
From Bart at 1:55PM:
ReplyDelete"In any case, as I have pointed out repeatedly, the courts have consistently held that the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II which make him the "sole organ of foreign policy" (Supreme Court's words), the sole executive as well as the CiC."
With two exceptions, the cases you have cited are, unless I'm much mistaken, all pre-date the passage and signing of the FISA statute. The few that are post-FISA ("Sealed" and "Turong"; sorry for the spelling) do not directly address the issue under discussion nor agree the President can authorize such surveillance in the first place under the ambiguous circumstances we are discussing.
"In contrast, the Article I provision which allows Congress to regulate only the Army and Navy, has been only held to allow Congress to pass laws like the UCMJ to regulate the good order and discipline of the uniformed services. Nary a word about allowing the Congress to direct intelligence gathering, which is by definition an executive function."
As I and others have repeated pointed out, there has simply been no such challenge to the Executive *to date*; Article I.8.14 empowers the Congress to make whatever regulations it see appropriate, not that it can do so only once and never again. The provisions of the Constitution are constantly in force (save for Amendment to them), thus Congress is not without authority here. No-one here is even suggesting Congress take over this function in the first place.
And while you are correct that 'intelligence gathering' is not mentioned there, neither is an "Air Force" nor 'civilian military personnel'. Our circumstances have changed in the last 200 years, but the Constitution is sufficiently flexible to allow for them.
Another question for Bart: does the intelligence-gathering vs. criminal-investigation distinction come into play when (if?) gathered intelligence is to be used in court? That is, if an "enemy" is surveiled without a warrant, is any collected evidence unusable in criminal proceedings?
ReplyDeleteIf so, this could be a partial comfort to those concerned about the surveillance programs, although if this were so, I would have expected the White House to talk up the fact that wiretapped conversations could not be used for law-enforcement prosecutions.
bart said:
ReplyDeleteI am curious. Without looking it up, give us your understanding of "unitary conservative."
That's what is usually referred to as a "Freudian slip."
D'oh- forgot the last sentence-
ReplyDeleteBecause the original poster never said "unitary conservative."
bart: "In any case, as I have pointed out repeatedly, the courts have consistently held that the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II..."
ReplyDeleteShorter bart: My arguments can't stand up to Fed 69, so look over there at those court cases!
I completely agree with your view and the view of other scholars regarding presidential powers during a time of war. Unfortunately, the Bush Administration does not feel constrained nor compelled to seek permission from either the Congress or the Courts. They just continue to ursurp the powers of others. No one is there to stop them. Unless the voters throw the rascals out, I don't see any stopping the Republican Party's quest for absolute power for their President.
ReplyDeleteResponding to Bart's question about my definition of the "Unitary Conservative." I have no definition of "Unitary Conservative", but when I use the term "Unitary Executive," I am referring to the intellection construct of Executive Power developed by Yoo, Alito, and other neo-conservatives that reads the first sentences of Article II, Sec. 1 and Sec. 2 of the Constitution in a way that precludes any regulation or limitation of that power by any other branch of the government. Thus, believers in the "Unitary Executive" seem to believe that the president has unlimite power to run the Executive Branch of government without any interference from Congress of the Courts. This minimizes the implications of the power ennumerated in the other Articles of the Constitution such as those in Article I, Sec. 8. Some specifics concern the issue of captures specified in Article 1, Sec.9, par. 11, regulation of the military under par. 14. Also, the ignoring of the last sentence of Sec. 9 that clearly gives Congress the exclusive power to make the rules for the manner in which the government, including the executive, conducts its business.
ReplyDeletePerhaps, more importantly, the concept of the Unitary Executive as referred to in the signing statements implies a radical application of the concept that the executive acts solely out of the power base of the mandate from the last election rather than as implementer of the governmental policies established by the Congerss that express the will of the people. More basicly, the Bush-Alito-Yoo Unitary Executive is a belief system that radically reallocates the central nexus of governmental power away from the people to center it into a unregulated and secretive Executive Branch that is untrusting of the will and wisdom of the citizenry and deems itself omnipotent. It ignores the principle that the people are the sovereign and that they express their policy making power as to how the government is to be run through their representatives in Congress. The present Unitary Executive has usurped the policy making role of the citizens and no longer trusts the wisdom of the people.
The Unitary Executive also ignores the basic premise that the Bill of Rights amends Article II and protects the rights of the individual citizens that may not be trampled by the executive. If we did not have a Bill of Rights, the overarching power of the Executive to trample individual rights might be arguable, but not when taken in contexts of the Amendments. The powers of the executive under Article II must be construed to be limited by the Bill of Rights. Under the Bush-Alito-Yoo construct, it is as if the Bill of Rights did not exist. Under their construct, the executive despotial powers. Without the Bill of Rights, the Constitution never would have been passed because the framers knew that an unamended Constitution was a roadmap to the trampling of individual rights they had fought and strived for during the Revolution. It is the very rejection of the concept of the "Unitary Executive" that forms the basis for the formation of the Unites States.
Glenn is right. Savage gets it. Most other reporters seem not to, or don't want to, as they have just blatantly ignored several bush signing statements that have completely circumvented Article I Section I of the Constitution (a blatant and far reaching example that was virtually ignored by all but Savage.)
ReplyDeleteI would also send to all reporters and all editors (if not all Americans) the following:
Hume's piece from this blog on Friday. And, separately, this quote from it:
Information is the oxygen of democracy. Day by day, the Bush administration is cutting off the supply [example]
Glenn's piece on imprisoning journalists, this perhaps not as well written piece by yours truly (but with links it makes the key constitutional case)and Harry Truman's great quote:
Secrecy, and a free, democratic government don't mix.
Again, I think all of these should be sent to every mainsteam media source in America (okay, take out the piece by me, or rewrite it). repeatedly, until they get it. most Americans need to be learning about things like this, but they are not. they are, "in the dark" so to speak. which seems to fit the Bush administration and some far right wing members of Congress just fine, but not democracy.
HWSNBN still spouts assertions without cites:
ReplyDeleteIn contrast, the Article I provision which allows Congress to regulate only the Army and Navy, has been only held to allow Congress to pass laws like the UCMJ to regulate the good order and discipline of the uniformed services. Nary a word about allowing the Congress to direct intelligence gathering, which is by definition an executive function.
Note that there's a difference between the phrases "only held to allow" and "held only to allow". The first, even if true, is unremarkable. But it is the second that HWSNBN has insisted in past points is true. But he can cite no case for this proposition. None.
Of course, the troll HWSNBN will ignore this subtle point, and continue ad nauseam with his oft-repeated tripe.
Cheers,
This comment has been removed by a blog administrator.
ReplyDeleteI would have expected the White House to talk up the fact that wiretapped conversations could not be used for law-enforcement prosecutions.
ReplyDeleteSo now that we're distinguishing between law enforcment and intelligence gathering, the next question becomes, what do we do with the info once we HAVE caught someone in the US conspiring with Al Qeada? It would seem that extra-legal proceedings would be the only appropriate response.
The view that George II should have the same dictatorial powers as George I had in 1776, long before Parliament made the monarchy a figurehead, is every bit as extreme as the extremist statements you rightly call out in your post on Insta-, Malkin, et al.
ReplyDeleteA nitpick: It was George III who was king of England in 1776. George I was the German Elector of Hanover (he never learned to speak English) who founded the Hanoverian Dynasty when he took over as king when jis second cousin Queen Anne (last of the Stuarts) died in 1714.
Also, the Kings of England had, in fact, become little more than figureheads by the time of George III. Prime Ministers and Parliament wielded much more power, and had done so since at least the days of Robert Walpole, Prime Minister under George I.
Not so much of a nitpick: Why does anyone continue to joust with Bart? He learns nothing, cites nothing, never answers questions in a sensible way, and babbles incoherently the rest of the time. His posts are interminable and it should be evident by this time that answering him just encourages him to babble more. It makes sense to respond to the lies and distortions of Coulter and Instapundit, but responding to Bart? Not so much.
Frango Regna
ReplyDeletemaiken said...
ReplyDeleteAnother question for Bart: does the intelligence-gathering vs. criminal-investigation distinction come into play when (if?) gathered intelligence is to be used in court? That is, if an "enemy" is surveiled without a warrant, is any collected evidence unusable in criminal proceedings?
The Truong appeal concerned the admission into evidence of information gained first when he and others were under surveillance as enemy agents and later Justice continued the surveillance without a warrant to build a criminal case.
The Court created a purpose test. If the primary purpose of the surveillance was intelligence gathering and you happened to stumble upon evidence, that evidence could be admitted even though you did not have a warrant. However, as soon as Truong was referred to Justice for investigation for prosecution, then a warrant was required to continue surveillance to gather criminal evidence.
If so, this could be a partial comfort to those concerned about the surveillance programs, although if this were so, I would have expected the White House to talk up the fact that wiretapped conversations could not be used for law-enforcement prosecutions.
The Bush Justice Department appears to be following the Truong structure. DOJ is gaining a record number of FISA warrants just for the purpose of gathering criminal evidence once their intelligence gathering has identified the targets.
The one thing you have not hear reported is Justice losing on any motions to exclude evidence in these terrorism cases. They have warrants for the evidence admitted into court.
Nobody said...
ReplyDeleteResponding to Bart's question about my definition of the "Unitary Conservative."
:::heh:::
Freudian slip indeed!
I have no definition of "Unitary Conservative", but when I use the term "Unitary Executive," I am referring to the intellection construct of Executive Power developed by Yoo, Alito, and other neo-conservatives that reads the first sentences of Article II, Sec. 1 and Sec. 2 of the Constitution in a way that precludes any regulation or limitation of that power by any other branch of the government.
I think you are exaggerating this position. I believe that Yoo and a series of other conservative scholars have offered a separation of powers argument that all executive powers are inherent in the President such that Congress should not be able to create special counsels nor should the court be able to rule on disputes between executive departments which would in effect create multiple executives (i.e special counsel v. some executive department or EPA v. DOD).
I suppose you could apply this theory to FISA by arguing that Congress is creating another executive by allowing the FISA court to make determinations which are executive in nature.
I don't really bother citing to this theory because it is not used by the Courts...yet.
HWSNBN gets it completely bass-ackwards:
ReplyDeleteHamilton actually says nothing here of substance which contradicts Mr. Yoo. The phrase "In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it" is in fact a rhetorical flourish meant to sell the Constitution to a population which did not desire another king.
Parliament in fact held the power of the purse and the ability to raise armies in Britain at this time. King George actually went to Parliament and requested the funding to go to war to put down the Revolution. Therefore, the allocation of these same powers to Congress was not really much of a difference.
Two points:
1). Assuming arguendo that HWSNBN's claim about funding for British troops is true, pointing that out simply diminishes the power of the British sovereign, and can hardly be an argument that the preznit has more power.
2). Once again, assuming arguendo that HWSNBN's claim is true, if that were the case, I guess we'd just have to look for other areas where the preznit's powers were "much inferior".... Hmmmm, I wonder ... in what ways might the preznit's power be "much inferior" if not that of the purse? Hmmm. Thinking....
Cheers,
Responding to Bart who said, "I think you are exaggerating this position."
ReplyDeleteNo, I do not think this is an exaggeration. In a broad and general way, Bush&Co have refused repeatedly to allow meaningful congressional oversight by refusing to allow congress information and by insisting that the executive must be trusted. As you observed, the NSA surveilence issue is an example of this process of expanding and prodding the limits of executive power. Other examples include the practices employed to avoid judicial oversight of Guantanomo and the White House decisions that led to the torture scandals at Abu Gharib. Certainly, the leaders in both houses of Congress have facilitated the process by their lack of resolve in resisting the great weakening of congressional power as a check on the the executive.
I think a careful reading of the writings and statements of Yoo and Alito and the actions of Bush administration show a steady, well-plannned program to free the executive from congressional, judicial, and citizen checks.
My interpretation is not an exaggeration. We are witnessing a process that will quickly result in a unrestrained executive.
Sometimes it is necessary to step back and to view the broader process notwithstanding the holding of courts that are looking at single events.
My assessment is that Bush&Co are believers in oligarchy, not democracy. If at this time we still have a democracy, I think Bush&Co are activily working to demolish it to establish their oligarchy and the tool they are using are very subtle and sophisticated and designed to exploit the fears of the people who may well be willing to trade freedom for (false) security.
bart said:
ReplyDelete...the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II which make him the "sole organ of foreign policy" (Supreme Court's words), the sole executive as well as the CiC...
Bart, why do you think it's ok to have the President engage in abusive surveillance? You've made your slippery argument many times about how it's supposedly legal for the President to do this, but I'm curious- why do you want the President to engage in warrantless surveillance?
You don't think abusive surveillance is something that needs to be prevented. Abusive surveillance disturbs me, and I wonder why it doesn't disturb you.
An example of the extension of the assertion of unlimited power is found in the newly filed government brief in the EFF v. AT&T case. (See p. 22, line. 8)
ReplyDeleteThe basic syllogism of logic employed by the government is as follows:
What we do to surveil the people is a state secret.
We have the power to define what is and what is not a state secret and the courts have no authority to limit this executive determination.
If the government discloses secret documents in camera, and those documents show illegality, then the courts are without power to do anything about it at all.
Thus, the state secret privilege (i.e. the decision of the Unitary Executive) trumps all laws and court decisions.
The next step is everything is a state secret.
They have already refused to testify about a myriad of things in congresssional hearings and have greatly limited access to the huge majority of congress persons about nearly all intelligence programs.
Aha, a Coup d'etat?
Bart, I'm not exaggerating. A believer in democracy would assert that before the government starts a total information awareness program, the people should make the decision, not the Unitary Executive without any congressional oversight.
The Unitary Executive invented this program, not congress of the people. Congress did not even know about the surveielence program until the Iimes broke the story.
Secrecy is the norm to Bush&Co. Secrecy will kill the Republic.
Hyperlink for Government brief
ReplyDeleteBart,
ReplyDeleteI would like to add a question to the one posed by cfaller96. Why would it be good for the country to have an authoritarian executive in the pattern of the Bush-Yoo-Alito Unitary Executive?
"The courts have held that the President may gather intelligence from foreign groups and their agents in the US without a warrant under the 4th Amendment. However, when the primary purpose of the surveillance changes to collecting criminal evidence, then the 4th Amendment requires a warrant. The courts held that evidence of criminal evidence gathering includes Justice directing the surveillance while constructing a case.
ReplyDeleteThe best case on this point is United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), where the court admitted evidence of intelligence gathering but not that collected by DOJ against a Vietnamese spy. However, all of my cited cases are basically on point. There is very little discrepancy between the courts on this point of law.
all of this applies to the fourth amendment, which has been correctly argued is not absolute.
to quote from a more recent FISA court review "[Truong] however, involved an electronic surveillance carried out prior to the passage of FISA"
The entire issue is the fact that the executive branch's clandestine program violated an express statutory provision (and one that was amended in 2001, by the USA Patriot after the attacks of September 11 ushering in said war time, and the resolution passed in September in response to that act)
you may have been responding to a fourth amendment question, but that question really is not as irelevant, and irrelevant to the central separation of powers transgression.
as for the 4th amendment, or a far right wing Congress that looks like it wants to accomodate, I would also suggest Ben Franklin's loosely paraphrased line, "those that would sacrifice some liberty for security deserve (and shall get) neither." I would also add that the argument "we need to do this [without any system of oversight or review or way to ascertain -- even if after the fact -- esactly what it is used for and to what extent; an UNCHECKED power in essence] in order to "protect us" is a cowardly argument.
but those, again, are incidental to the fact that our Constitution very specifically sets up a system of checks and balances, which this administration has been in the process of systematically dismantling.
Not so much of a nitpick: Why does anyone continue to joust with Bart? He learns nothing, cites nothing, never answers questions in a sensible way, and babbles incoherently the rest of the time. His posts are interminable and it should be evident by this time that answering him just encourages him to babble more. It makes sense to respond to the lies and distortions of Coulter and Instapundit, but responding to Bart? Not so much.
ReplyDeletegood point. he won't change, and is probaly not a senator or even journalist. but then again, of the people that are reasonablye versed in this issue (whether it be through a legal background or other scholarly, governmental constitutional or heavily news oriented) endeavors, only a small fraction think this way, and half of them are wrong because partisan brainwashing has effected objectivity.
yet right now, politically, this is leading America.
maybe not to Bart, but to the media, and to most Americans, the case has to be made.
I think a careful reading of the writings and statements of Yoo and Alito and the actions of Bush administration show a steady, well-plannned program to free the executive from congressional, judicial, and citizen checks
ReplyDeletewhether planned or not, classic example is this one cited in my post from above, yet in the MSM largely only picked up by Charlie Savage of the Boston Globe.
its why i suggest refocusing a lot of the energy towards contacting the media and making (or linking to) the case, and politely requesting that theses issues be more sufficiently and more accurately covered.
Prof. Yoo is quoted as saying that Bush's [aka his own] legal reasoning is "not 'unserious.'"
ReplyDeleteDamning praise, especially from the horse's mouth, huh?
The value of the media was also noted in remarks by an author of a book on Katrina. He said that often the media was the only way scientists like him had a means to get certain information out to the world.
Sure enough.
JaO said, "I think you err in lumping Alito in with Yoo."
ReplyDeleteNotwithstanding the differences between Yoo and Alito on Youngstown and war powers, Alito is one of the strong proponents of the Unitary Executive.
Look here, hear and a google search "alito unitary executive" will demonstrate that Alito is one of the strongest proponents of the unitary executive.
He is properly lumped with Yoo.
Arne Langsetmo said...
ReplyDeleteHWSNBN gets it completely bass-ackwards: Hamilton actually says nothing here of substance which contradicts Mr. Yoo. The phrase "In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it" is in fact a rhetorical flourish meant to sell the Constitution to a population which did not desire another king.
Parliament in fact held the power of the purse and the ability to raise armies in Britain at this time. King George actually went to Parliament and requested the funding to go to war to put down the Revolution. Therefore, the allocation of these same powers to Congress was not really much of a difference.
Two points:
1). Assuming arguendo that HWSNBN's claim about funding for British troops is true...
Read the McCullough book 1776.
...pointing that out simply diminishes the power of the British sovereign, and can hardly be an argument that the preznit has more power.
Straw man #1 I never made any such argument. This had nothing to do with the power of the President. Rather, this was proof of Hamilton was exaggerating the power of the British king.
2). Once again, assuming arguendo that HWSNBN's claim is true, if that were the case, I guess we'd just have to look for other areas where the preznit's powers were "much inferior".... Hmmmm, I wonder ... in what ways might the preznit's power be "much inferior" if not that of the purse? Hmmm. Thinking....
Don't strain yourself actually thinking because you are obviously having trouble reading. Hamilton is quite clear about his opinion about the differences between the American President and British king:
Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.
Therefore, the President's power to conduct intelligence gathering is the same as the British King's. That puts a new spin on your claims that Bush is exercising the powers of a king.
cfaller96 said...
ReplyDeletebart said: ...the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II which make him the "sole organ of foreign policy" (Supreme Court's words), the sole executive as well as the CiC...
Bart, why do you think it's ok to have the President engage in abusive surveillance? You've made your slippery argument many times about how it's supposedly legal for the President to do this, but I'm curious- why do you want the President to engage in warrantless surveillance?
I would call for the President's impeachment for gross incompetence if he did not engage in surveillance and data mining against telephone numbers captured from al Qaeda.
How could this possibly be "abusive?"
TheOctillion said...
ReplyDeleteBart: In any case, as I have pointed out repeatedly, the courts have consistently held that the President's power to conduct warrantless intelligence gathering arises from multiple points in Article II which make him the "sole organ of foreign policy" (Supreme Court's words), the sole executive as well as the CiC.
this is just flat out incorrect. have you read those cases? ... they do not in any way shape or form even imply that the executive has the power to legistlate in direct contravention of specific statutory prohibitions.
No one ever said they did. Who is arguing that the President may legislate?
The argument is the Article I does not permit Congress to limit or eliminate the President's Article II power to gather intelligence.
HWSNBN:
ReplyDelete[Arne] 1). Assuming arguendo that HWSNBN's claim about funding for British troops is true, pointing that out simply diminishes the power of the British sovereign, and can hardly be an argument that the preznit has more power.
Straw man #1 I never made any such argument. This had nothing to do with the power of the President. Rather, this was proof of Hamilton was exaggerating the power of the British king.
Nor did I say that the troll HWSNBN said this (or even "argued" this). This is a "straw man" of HWSNBN's construction. See how that works? ;-)
But here's what HWSNBN was saying when he made this point: "Hamilton actually says nothing here of substance which contradicts Mr. Yoo. The phrase 'In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it' is in fact a rhetorical flourish meant to sell the Constitution to a population which did not desire another king."
So HWSNBN is trying to indicate (for his own rhetorical purposes, since he's previously insisted that the preznit's powers to spy devolve in part from the traditional powers of heads of state to do this since time immemorial) that there is no (relevant) difference between the powers of preznits and kings (and to dispute or challenge the "much inferior" characterisation of Hamilton's). So, yes, despite his weaseling here, the above really was his "argument" here.
And FWIW, the power to "raise" armies is not the same as the power to fund them, despite HWSNBN's obfuscations here. As the Constitution makes clear ("To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years", separating the two issues). So even if George the Third had to go asking for money, that hardly makes Hamilton's statement inaccurate.
[Arne]: 2). Once again, assuming arguendo that HWSNBN's claim is true, if that were the case, I guess we'd just have to look for other areas where the preznit's powers were "much inferior".... Hmmmm, I wonder ... in what ways might the preznit's power be "much inferior" if not that of the purse? Hmmm. Thinking....
Don't strain yourself actually thinking because you are obviously having trouble reading. Hamilton is quite clear about his opinion about the differences between the American President and British king:
"Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."
Therefore, the President's power to conduct intelligence gathering is the same as the British King's....
HWSNBN simply assumes his conclusions here. My, what a novel argumentative technique ... for HWSNBN.
No one disputes that the preznit is to be CinC of the armed forces (and militia) when called into service. The dispute is as to whether he gets to make up whatever laws he wants in diverse areas as he goes. Obviously not true, as Article I, Section 8 makes clear.
But continuting blithely and unsentiently, HWSNBN stumbles on:
... That puts a new spin on your claims that Bush is exercising the powers of a king.
Wasn't my claim. It's HWSNBN that's been making that argument for weeks, in arguing for his supposed right to ignore Congress and their lawfully passed regulations of wiretapping.
Cheers,
HWSNBN:
ReplyDelete[cfaller96]: Bart, why do you think it's ok to have the President engage in abusive surveillance? You've made your slippery argument many times about how it's supposedly legal for the President to do this, but I'm curious- why do you want the President to engage in warrantless surveillance?
I would call for the President's impeachment for gross incompetence if he did not engage in surveillance and data mining against telephone numbers captured from al Qaeda.
How could this possibly be "abusive?"
Ahh, such a wonderful "straw man"! I'm in awe... Just redefine the question, and ... voila! ... the answer comes tripping out.
Cheers,
HWSNBN continues in his inimitable style:
ReplyDelete[TheOctillion]: this is just flat out incorrect. have you read those cases? ... they do not in any way shape or form even imply that the executive has the power to legistlate in direct contravention of specific statutory prohibitions.
No one ever said they did. Who is arguing that the President may legislate?
HWSNBN is not going to give anyone a break for inapt or imprecise language, even if the point is pretty clear. Just so we know the ground rules....
The argument is the Article I does not permit Congress to limit or eliminate the President's Article II power to gather intelligence.
That may be the 'argument', but HWSNBN won't actually quote from the (alleged) cases to back up his contention that the cases actually hold this. "Argument by repeated assertion". Another HWSNBN tactic.
Cheers,
Dear Bart,
ReplyDeleteYou have failed to address: The Supreme Court ruling in United States vs. U.S. District Court, 407 U.S.
See also 297http://www.sfgate.com/cgi-bin
/article.cgi?file=/c/a/2006/01/08/
MNGHGGK8OC1.DTL
My current post in response to Senator Spector post:
I come from Nixon's old congressional district and as God is my Fuhrer believe that:
We are in a state of constitutional crisis. For Rumsfeld to lobby on intelligence reform and now have military acts off the books means that the "linchpin" of the constitution, the taxing and spending powers of Congress, of raising standing armies, has now been violated. My Congressman David Dreier now has no way to effect neither my Liberty nor my Republic.
Our constitution was specifically designed to avoid this combination of the President's office with the Defense Department; that the King shall not have his own standing army to send willy-nilly to wherever he thinks he has the pleasure too. The appointment of a sitting General to an executive position - the CIA - only consolidates this dangerous process that is under play.
The basis for this power grab, the claim of inherent power of the president, has already been settled under Nixon's attempt during the so-called Vietnam War. As Nixon’s assistant attorney general Rehnquist made the argument of inherent power to wiretap the White Panther Party without a warrant – during a war. This power, which was claimed to be held, under the President’s Oath of Office, was rejected by the Supreme Court in a unanimous decision against suspending all or parts of the Constitution.
Because this was Rehnquist’s argument as assistant attorney general he had to rec-use himself from his very first decision after being appointed to the Supreme Court and rightly so. And guess what? America was still standing in the morning after this and Nixon's resignation avoiding his impeachment. This is in spite of a average of 6 bombings a day, 86 killed policemen, and a record 33,604 thousand injuries between the fall of 1969 and spring of 1970 by our own citizens protesting over the illegal invasion of Cambodia. Not to mention the response and statistics to the the duration of the Vietnam war.
That is why I can never believe the neo-cons or Alitos et al., claims to absolute presidential power as Commander-and-Chief even during war. Unfortunately, old Rehnquist conveniently ignored this when he reviewed his history of the power of the President during war. He brings up WWI and WWII in this review. But, for some reason, he completely skips how his “inherent” argument on presidential power was slapped down by the Supreme Court during the undeclared, illegal and immoral so-called Vietnam War.
This is bald face intellectual dishonesty, if not outright historical revisionism, that completely belies the important decision on the necessity of War - not to mention the young lives thrown willy-nilly into harm's way. And so much for a responsible versus an irresponsible debates Mr. Bush but my Constitution proceeds my being.
This missing history is more reason why I completely reject the neo-con's medieval thesis that constitutional government is too weak to survive in a difficult world and that we should defer to a sole sovereign power since 9/11. In all have become weaker since taking on this post 9/11 repeat of Rehnquist's "in terrorem" position. (I would like to read his memo on the subject of presidential power and the invasion of Cambodia but alas that memo has disappeared, nowhere to be found on the Internet. The persuasive force of his ideas no longer count I can only suppose). I only fear that our new Supreme Court justices Roberts and Alito will take what was a tragedy we survived and turn a repeated claim of 17th century inherent power into a farce that destroys the sheet anchor of our Republic - our precious Constitution – along with the Bill of Rights.
I would rather throw Bush overboard than our Constitutional Rights and Specter if we have too!
I am Citizen Michael John Keenan.
Rehnquists memo is now posted at the DOD.
Bloggers need to ask what should happen if the tax and spend military clause is violated which I believe Rumsfeld has already accomplished. Things are far worse then hardly anyone now realises. The Federalist Papers do mention a response to this kind of situation. It will be my response at the Speekers Corner at our town 4th of July Independence Celebration.
On the question of unitary executive see de Toqueville's Chapter VI: What Sort Of Despotism Democratic Nations Have To Fear in Democracy in America. To quote, "A constitution, which should be republican in its head and ultra-monarchical in all its other parts, has ever appeared to me to be a short-lived monster. The vices of rulers and the ineptitude of the people would speedily bring about its ruin; and the nation, weary of its representatives and of itself, would create freer institutions, or soon return to stretch itself at the feet of a single master."
The argument is the Article I does not permit Congress to limit or eliminate the President's Article II power to gather intelligence.
ReplyDeleteto the contrary, that is your argument and a few far right wing apologists, not the adminsitration's.
nor is this argument any different than any other argument that states
"article I does not permit Congress to limit or eliminate the President's Article II power to [ insert whatever you want here}
this is a bizarre reading of the Consitution.
authorizing a program, any program, that cuts into the liberties of citizens is legislating. congress already legislated on this precise issue. the administration is legislating in direct contravention of what congress has passed.
your argument is a horrendous one
also ironic that you instill in the president these innate power, that not only the president has, but that Congress can not even limit.
such as to "gather intelligence." and you get that from which clause of the Constitution exactly?
oh, right. the commander in chief. thus, in other words, anything in the name of national securfity, the president can do, and can do secretly, and congress (that is, btw, the will of the people, as congress serves as our elected representatives) can not prohibit it. so the president has express powers over the will of the people, under our constitution.
nice reading of it....
also, your inane argument, btw, would apply equally to anything that the president were to decide in the "interests" of national security be it shutting down the media, not allowing democrats to run in elections, not allowing an opponent to run against him, etc.
as noted here:
The discretion to do "one thing" in the interest of "national security" is no more constitutionally valid, if it violates the separation of powers clauses of the Constitution, because it seems "reasonable" to some people, than the discretion to do "another thing" which seems (as in the above analogy) to be patently unreasonable on its face. The principles are identical.
Bart said:
ReplyDelete"In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York."
What you of course fail to take note of Bart is the qualification (In most of these particulars)
In fact the point of Federalist 69 is to show the difference between, and more stringent limitations on the chief magistrate (President) than there are of the King of Great Britain.
The end of Federalist 69:
The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
Especially for Bart:
ReplyDeleteThe Federalist No. 77
Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.
The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.
We have now completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense -- a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?
Arne Langsetmo said...
ReplyDeleteSo HWSNBN is trying to indicate (for his own rhetorical purposes, since he's previously insisted that the preznit's powers to spy devolve in part from the traditional powers of heads of state to do this since time immemorial) that there is no (relevant) difference between the powers of preznits and kings (and to dispute or challenge the "much inferior" characterisation of Hamilton's). So, yes, despite his weaseling here, the above really was his "argument" here.
:::chuckle:::
Glenn and the gang here are the ones making the inapt comparisons between the President and the British king, even going as far as taking Federalist 69 completely out of context.
And FWIW, the power to "raise" armies is not the same as the power to fund them, despite HWSNBN's obfuscations here. As the Constitution makes clear ("To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years", separating the two issues). So even if George the Third had to go asking for money, that hardly makes Hamilton's statement inaccurate.
Actually, the Constitutional provision to which you cite is very good evidence for my argument. Congress does not raise troops. It appropriates money to allow the executive to do so. The same applied to the United Kingdom when King George asked for money to fund his war in America.
Yoo was correct. Hamilton was exaggerating to sell the Constitution in face of Anti-Federalist arguments that the proposed Constitution concentrated too much power in the President.
Anonymous said...
ReplyDeleteDear Bart, You have failed to address: The Supreme Court ruling in United States vs. U.S. District Court, 407 U.S. 297 (1972).
Thank you for the cite.
This case holds that the 4th Amendment requires warrants for surveillance on purely domestic groups with no relationship to foreign groups.
The cases to which I have been citing hold that warrants are not required for intelligence gathering against foreign groups and their agents in the United States. The Supremes denied review for these decisions so they obviously did not see a conflict between United States vs. U.S. District Court and my decisions.
This is why I am careful to state that the limitations of the President's Article II power when I make my arguments. The only folks who argue that the President is exercising unlimited power are the Bush opponents.
Bart said:
ReplyDelete"Glenn and the gang here are the ones making the inapt comparisons between the President and the British king, even going as far as taking Federalist 69 completely out of context."
You are yhe one taking Federalist 69 out of context. The purpose of which is to show the limitations of the Chief Magistrate (President) as compared to the King of Great Britain.
Read the end of Federalist 69 which I have quoted for you in a previous post.
Not to mention the fact that the people were rightly wary of making the President too powerful because it had not been that long since they had revolted against the whims of an all powerful Monarchy. To try to promote the theory that they wanted or indeed would put up with the same kind of ruler again is ludicrous on the face of it.
More from Federalist 69
ReplyDeleteSecond. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.
Gris Lobo said...
ReplyDeleteBart said: "Glenn and the gang here are the ones making the inapt comparisons between the President and the British king, even going as far as taking Federalist 69 completely out of context."
You are the one taking Federalist 69 out of context.
Really? How?
The purpose of which is to show the limitations of the Chief Magistrate (President) as compared to the King of Great Britain.
When did I say otherwise?
Read the end of Federalist 69 which I have quoted for you in a previous post.
I did. It has nothing to do with the President's Article II power to direct and conduct intelligence.
Not to mention the fact that the people were rightly wary of making the President too powerful because it had not been that long since they had revolted against the whims of an all powerful Monarchy. To try to promote the theory that they wanted or indeed would put up with the same kind of ruler again is ludicrous on the face of it.
You folks are the only ones comparing the President to a king.
Your syllogism goes something like this:
The British King has the power to direct and conduct intelligence gathering.
Hamilton believes that the President has fewer powers than the British king.
Therefore, the President does not have have the power to direct and conduct intelligence gathering.
The problem with this syllogism is that Hamilton details the powers of the British king which the President does not share and does not list intelligence gathering among them.
This argument is weak, which is why Glenn was taking the text out of context.
HWSNBN, clueless as well as oblivious:
ReplyDelete[Arne]: And FWIW, the power to "raise" armies is not the same as the power to fund them, despite HWSNBN's obfuscations here. As the Constitution makes clear ("To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years", separating the two issues). So even if George the Third had to go asking for money, that hardly makes Hamilton's statement inaccurate.
Actually, the Constitutional provision to which you cite is very good evidence for my argument. Congress does not raise troops. It appropriates money to allow the executive to do so. The same applied to the United Kingdom when King George asked for money to fund his war in America.
*whooooooooooossshhhhhh* Ten thousand miles over NWSNBN's head, eh?
See that "Congress does not raise troops" that HWSNBN farted out there? Compare and contrast:
U.S. Constitution, Article I, Section 8. The Congress shall have power ...
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;...
This is just "pet rock" dumb on HWSNBN's part.
Cheers,
Bart said:
ReplyDelete"The problem with this syllogism is that Hamilton details the powers of the British king which the President does not share and does not list intelligence gathering among them.
This argument is weak, which is why Glenn was taking the text out of context."
The President is to be the "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. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York.
And Hamilton does very specifically enumerate the powers in which the Chief Magistrate (President) will resemble equally that of the King of Great Britain and the Governor of New york-- and intelligence gathering is not among them which makes your argument very weak.
HWSNBN:
ReplyDeleteYoo was correct. Hamilton was exaggerating to sell the Constitution in face of Anti-Federalist arguments that the proposed Constitution concentrated too much power in the President.
This is the "The Founders were liars and cheats, and pulled the wool over people's eyes, and they really didn't mean what they said when arguing for the form of gummint we have, so instead, let's take my authoritative views on what it was they secretly thought, and paste that, instead, all over a gummint that was adopted and ratified in part based on these persuasive public documents and similar argumentation and debates" school of rhetoric. Yes, quite persuasive, this idea of "constitutional interpretation" ... to clueless berks like HWSNBN.
Cheers,
HWSNBN:
ReplyDeleteGlenn and the gang here are the ones making the inapt comparisons between the President and the British king, even going as far as taking Federalist 69 completely out of context.
Nah. They're just addressing HWSNBN's prior assertions that "intelligence" matters are traditionally the province of the head of state (or the executive) --
and the corollary that this must necessarily be true of the U.S. gummint, not only as a power, but a plenary and unlimited one (this claim of HWSNBN in spite of the point made by one other poster here [sorry, don't remember who] to the effect that the COntinental Congress ran its own intelligence operations back in the 18th century).
Cheers,
bart said:
ReplyDeleteI would call for the President's impeachment for gross incompetence if he did not engage in surveillance and data mining against telephone numbers captured from al Qaeda.
That would have been a great answer to the question "why do you want the President to engage in surveillance of al-Qaeda?" Unfortunately, that was not the question I asked. You know that, and once again, you're dodging (probably because you're ashamed of what you believe).
I'll ask again, with a little clarification: why do you want the President to engage in warrantless surveillance of American citizens?
From cfaller96 at 1:23PM:
ReplyDelete"I'll ask again, with a little clarification: why do you want the President to engage in warrantless surveillance of American citizens?"
You realize of course that Bart's answer is going to amount to "show me proof that's what's happening" and insist *only* Al Qaeda are the ones under surveillance.
He doesn't dare consider any other possibilities...or at least hasn't to date.
cfaller96 said...
ReplyDeletebart said: I would call for the President's impeachment for gross incompetence if he did not engage in surveillance and data mining against telephone numbers captured from al Qaeda.
That would have been a great answer to the question "why do you want the President to engage in surveillance of al-Qaeda?" Unfortunately, that was not the question I asked. You know that, and once again, you're dodging (probably because you're ashamed of what you believe).
I'll ask again, with a little clarification: why do you want the President to engage in warrantless surveillance of American citizens?
Ah, the "Have you beat you wife lately" question. When did I ever say that I wanted such a thing?
This claim of spying on innocent US citizens is a fantasy without evidence that Glenn has been selling for months. I answered your question based on the facts which are in evidence.
Under the law, the only folks who can be surveilled without a warrant are members or agents of a foreign group - whether citizens or aliens.
yankeependragon said...
ReplyDeleteFrom cfaller96 at 1:23PM: "I'll ask again, with a little clarification: why do you want the President to engage in warrantless surveillance of American citizens?"
You realize of course that Bart's answer is going to amount to "show me proof that's what's happening" and insist *only* Al Qaeda are the ones under surveillance.
He doesn't dare consider any other possibilities...or at least hasn't to date.
I don't engage in flights of fancy. Show me the evidence or admit that you are simply making it up.
From Bart at 6:54PM:
ReplyDelete"I don't engage in flights of fancy. Show me the evidence or admit that you are simply making it up."
In other words, I called it right. Sad, really.
Professor Yoo is one of the sharpest legal minds specializing in this area of constitutional law. I would hardly deign to give any credence to these amateurish criticisms of his profound legal analysis.
ReplyDeleteanonymous sez:
ReplyDeleteProfessor Yoo is one of the sharpest legal minds specializing in this area of constitutional law. I would hardly deign to give any credence to these amateurish criticisms of his profound legal analysis.
John Yoo is an amateur peckerwood, and couldn't even hold a candle to the much (and properly) maligned Philip Johnson -- much less the eminent Constitutional scholars Jesse Choper, Willie Fletcher (now a 9th District Appellate judge), and Robert Post -- at Boalt.
I oughtta know; I've known all of 'em.
Cheers.
To arne -
ReplyDeleteDo you think anonymous was being ironic with their last post? I mean, who seriously uses a word like "profound" in relation to the Bush Administration's policies these days?
yankeependragon:
ReplyDeleteDo you think anonymous was being ironic with their last post? I mean, who seriously uses a word like "profound" in relation to the Bush Administration's policies these days?
Dunno. It illustrates a real problem for the likes of Colbert, Stewart and Franken. When mockery becomes indistinguishable from the "Real McCoy", it becomes harder and harder to come up with truly comedic material.
Stewart has seemingly found a (at least temporary) solution to this conundrum; he just presents the material he's handed on a platter, and says nary a word but just rolls his eyes.
Colbert used to have "Dubya v. Dubya" debates, but I guess they became too common-place and lost their punch, so now he does his own "Colbert v. Colbert" routines to add some variety to the concept.
All in all, perhaps we will see the death of comedy though, because of a too "target-rich" environment. When it comes so easy, it loses a bit of the cleverness, and thus the edge, and come across more like a scroll of the stock ticker on CNBC....
Cheers,
bart said:
ReplyDeleteWhen did I ever say that I wanted [warrantless surveillance of American citizens]?
Notice the non-denial denial in there.
Bart, on a previous thread when I asked if you agree that it's important to stop abusive surveillance before it begins, you dodged. I asked again, and you declined to answer.
It's a simple statement- "I agree it's important to stop abusive surveillance before it begins". Yet you declined to make that statement. Twice.
Even you have to admit that you're an ardent defender of warrantless surveillance. Are you saying that you vehemently defend the President's alleged right to engage in warrantless surveillance, but don't approve of it? It's possible, but let's be clear- is that what you believe?
Perhaps my derivation of your desire is wrong, so let's start over: do you agree it's important to stop abusive surveillance before it begins? Keep in mind I'm not asking how we do that, I'm just asking if you agree it's important to stop it before it begins.
And finally, I'll clarify the question once again: do you want the President to engage in warrantless surveillance of American citizens?
I might take comfort in federalist 69, but for the recent exclusionary decision.
ReplyDeleteThe court was faced with enforcement of a clear rule -- which the cops knew about; rather than enforce the rule, they threw away the rule.
Putting aside the issue of the Constitution, Scalia's comments in the Hamdi case were from the dissent; why should I believe, if the Roberts-Scalia-Alito Supreme Court is asked to rule on any executive power, that they're going to assert individual rights. Yes, federalist 69 says what it says; but we have a court that says the rules can be trumped, and that the executive can do what he wants.
I not longer trust the courts to protect the Constitution; I trust them to create excuses to do the opposite.
IMO, Yoo is a Nazi and belongs in jail.
ReplyDeleteAnonymous 11:19 PM "Professor Yoo is one of the sharpest legal minds specializing in this area of constitutional law. I would hardly deign to give any credence to these amateurish criticisms of his profound legal analysis."
He's admitted to the PA bar.
Let's get him disbarred.