Now that he's finally read the case, John, to everyone's great shock, has concluded that it does not support the view that Bush acted illegally when he ordered eavesdropping which Congress expressly prohibited by law. John claims that the situation in Youngstown could not be any more irrelevant to the current NSA eavesdropping scandal because Truman in Youngstown, unlike Bush here, was so plainly overstepping his bounds by attempting to seize steel factories in the face of Congressional opposition -- the case was such an "easy" one -- that, according to John, the "remarkable fact about Youngstown is that three justices dissented."
This is so, says John, for this reason:
That holding seems clearly correct; if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator.
So if, as John argues, a President who carries out domestic policy in the absence of Congressional intent would be a "dictator," what would a President be who eavesdrops with no warrant on the telephone calls of American citizens while they are in the United States, even though an act of Congress makes it a crime to do so?
Truman's conduct was not expressly prohibited by Congress; Congress simply refused to give him seizure authority. By obvious contrast, Congress did not merely remain silent with regard to Bush's warrantless eavesdropping. It expressly made it a criminal offense to do that. And Bush did it anyway. It therefore defies basic rationality to call Truman a would-be "dictator" for doing something which Congress did not prohibit, while still defending George Bush's conduct here which was undertaken in defiance of Congressional law.
You might to look at "Are Bush and God Partners?" thelandistruth.blogspot.com
ReplyDeleteAnd as the Time piece and other sources have indicated, Bush went to Congress to amend FISA and obtain authorization for his NSA program, and couldn't get it. Just like Truman couldn't get the authorization he wanted, but worse, because Bush is affirmatively prohibited by Congress from doing what he has done.
ReplyDeleteJohn at Powerline is too smart to not grasp the meaning of Youngstown. He is playing defense lawyer to a lay audience.
And as the Time piece and other sources have indicated, Bush went to Congress to amend FISA and obtain authorization for his NSA program, and couldn't get it.
ReplyDeleteAnd remember, this is, as Glenn pointed out, the Administration's version. Gonzalez said the same thing in his PC, that they tried to get authorization from Congress but couldn't.
I'd like to know what they did to try, because nobody in Congress has said anything about this. And ultimately, isnt' that the strongest argument against Bush, that he knew Congress did NOT approve what he was doing?
Glenn Greenwald: You misstate and then misinterpret what John Hinderaker said.
ReplyDeleteyou quote Hinderaker in your post as follows:
This is so, says John, for this reason:
That holding seems clearly correct; if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator.
But you misplace emphasis and therefore misinterpret the meaning of the above by emphasizing only the conclusion about dictatorship.
Clearly the important part in any paragraph is the reason or rational for the conclusion because that help's the reader determine the veracity of that conclusion. In the above quote the important parts are placed in bold below:
That holding seems clearly correct; if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator.
Its not surprising that you skip over the private property part because while private property ownership rights are vital to the maintenance of a free and prosperous people, the left usually could care less about private property rights, but you also skip over the DOMESTIC POLICY part of the above which also serves as a distinguishing characteristic in Youngstown versus the current NSA situation, because the President's inherent constitutional authority in FOREIGN SURVEILLANCE and FOREIGN RELATIONS does NOT extend to purely DOMESTIC matters like the USA Steel Mill property and union labor dispute at issue in Youngstown.
I wrote about the Youngstown case as part of my blog on December 29, 2005 JunkYardLawDogs: A Framework For How The Supreme Court Will Decide The NSA Surveillance Questions - December 29, 2005
In Youngstown the court was balancing the government's INDIRECT interest in maintaining steel production to support a war whose SOLE BATTLEFIELD was far from the homeland territory of the USA itself against a complete evisceration of both the private property rights and union free association rights of the steel mill workers. In the NSA situation the balancing to be done is the government's compelling and direct interest in detecting and preventing enemy attacks on USA soil against USA persons versus the extremely minor and unobtrusive surveillance of people with suspected contacts with Al Qaeda.
These two fact situations and the competing and compelling interests involved are so different that one can not be used to predict the outcome of the balancing tests in the other.
Finally you misstate the fact situation in Youngstown. Congress had passed a law for a cooling off period instead of providing for seizure as a remedy.
Because you continually fail to acknowledge or appreciate the difference between "DOMESTIC" matters and "FOREIGN SURVEILLANCE" matters you continue to make and cite legal arguments and authority that are inapplicable and wrongly applied.
Says "the Dog"
what would a President be who eavesdrops with no warrant on the telephone calls of American citizens who are conversing with terrorists overseas whos publicly stated intent is to attack the United States while they are in the United States,
ReplyDeleteA President who broke the law, since if they know they are conversing with terrorists overseas, they can get a fucking FISA warrant. For that matter, how do you know that correctly describes whom they're wiretapping, given that they bypassed oversight from any other branch of government? God told you? I know Bush told you; I'm just trying to figure out if you realize there's a difference.
--mds
The ugly dog duo are circus freaks -- pretending to know things they don't; pretending that saying it is so makes it so; pretending that calling for honesty masks dishonesty; pretending that assumptions are facts; pretending that their own self-delusion is evidence of others' misleading.
ReplyDeleteYou two clowns talk way too much. You have only one task before you: substantiate your assumptions.
No one is against surveilling terrorists and their associates. Until you can comprehend that that is not the issue, you should stop pretending that it is. You come across like children playing make-believe. Maybe you are. Do you understand that nobody is against surveilling terrorists?
Anonymous,
ReplyDeleteThe lefting seeking to silence speech of others.
There is nothing more hilarious than a 3 paragraph post of nothing but name calling and a couple of unsupported conclusions (that happen to be wrong as well) that then has the nerve to call for others' well supported posts to provide more reasoning.
Unbelievable (ly stupid) Anon.
Says the "Dog"
Glenn, just to be clear: is it, or is it not, your contention that there is no constitutional difference between the use of traditional war powers - i.e., spying on the enemy, even after the enemy crosses the border - and asserting plenary authority over the private property of all Americans?
ReplyDeleteI do not view eavesdropping on the communications of American citizens to be an incident of war -- certainly no more so than using the country's industrial capability to support our war effort. A steel strike would have been just as crippling to the American war effort in Korea as a lack of intelligence would be to our "war" against terrorists.
But ultimately, the principal is exactly the same -- where Congress can properly legislate in a certain area, the President must abide by the law. Do you dispute that principal, or its applicability to FISA?
Thanks for reading Powerline so that we don't have to.
ReplyDelete