Susie Madrak observes that the Constitution (and other laws) sure do seem quite "flexible" in the hands of those seeking to defend George Bush -- a particular irony given how stridently they rail against such legal theories in other contexts. And the defenses being dredged up to justify Bush’s law-breaking certainly are notable for the liberties they take with traditional and "conservative" principles of legal argument.
Thus, we have one argument being advanced by the DoJ on Bush’s behalf which claims that a statute (AUMF) which never mentions FISA, eavesdropping or surveillance should nonetheless be "construed" to have "impliedly" amended FISA by giving Bush an "exception" to its mandates. And this argument is made even though the Congress which supposedly gave that exemption says that they did no such thing, but to the contrary, expressly refused to give that authority.
And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the "inherent" authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens with no warrant – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President "shall take Care that the Laws be faithfully executed . . . "
So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which was supposedly amended. And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document.
What we really have from these paragons of Judicial Restraint is everything except plain language and original intent – the very tools of construction which these "conservatives," when not concocting legal defenses to save George Bush, claim that they believe in. That’s because the plain language of the law makes clear that George Bush broke it ("A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute"), so "plain language" is not as attractive a concept any more.
This glaring contradiction of the Bush enablers' embrace of "original intent" when they argue that his domestic eavesdropping is lawful struck me as soon as the Times article was published.
ReplyDeleteAmen, Glenn.
ReplyDeleteWe really need to have a conversation in this country about the meaning of the word "conservative." The media has butchered the term so badly that nobody knows what bedrock conservative principles are anymore. I actually think that real traditional conservatives are an endangered species.
George McGovern wrote a nice article for (if I recall correctly) the Atlantic Monthly a few years back about this, about the long rich tradition of liberalism and conservatism in this country, with Communists to the far left of the liberals, and fascists to the far right of the conservatives - and how we fought WW II against the fascists, and by making common cause with Communists; but that immediately after the war we switched and have ever since been much less concerned with the threat from the right, from our WW II type enemy, than the threat from the left. And how the true conservative voices have been drowned as the lockstep right wingers took over the Republican Party. (I hope that's not too inaccurate a statement of what he said!)
ReplyDeleteBy the way, can someone tell me how to indent comments? It won't accept the "blockquote" html tag.
Continue to call them the way you see them, Glenn. Cited you late in post on Shoot the Messenger.
ReplyDeleteChuck Schumer was on Fox with Chris Wallace yesterday. He didn't have the stones to say Bush broke the law. He said Bush "changed" the law.
As we know the President is sworn to uphold, not break it. Nor does he have the power to "change" what he doesn't like by fiat.
Housekeeping Note to Brambling: Blogger comments don't support blockquote/indent format. You might try italics. Anybody else have any ideas?
I believe Jeralyn Merritt first used the term "executive activism" to refer to this phenomenon. Conservatives never tire of shouting that "judges don't make the law, they enforce it." Actually, judges interpret the law. But that rallying cry is even more appropriate in this context. The president isn't supposed to make the law, he's supposed to see that the law is faithfully executed. He is the chief law enforcer. Every argument ever invoked against so-called "judicial activism" is 1000 times more forceful as an argument against "executive activism."
ReplyDeleteGG:
ReplyDeleteFrom Ex parte Quirin,(1942):
" ''. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.''
This was the Nazi saboteur case, one of the saboteurs, Haupt, was an American citizen.
He was tried,convicted, and sentenced to death by a military tribunal...NOT a civilian criminal trial.
All of 'em were hanged.
So, if it is Constitutional for an unlawful combatant, even one who holds American citizenship, to be prosecuted by a military tribunal,(purely a creation of the Commander-in-Chief...the Executive Power), how can you argue that to eavesdrop a suspected unlawful combatant's electronic communications requires a warrant from a court, which is a Judicial Branch creation?
Also from Ex parte Quirin:
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused."
So, in "Liberalworld", if they're caught, the Executive can "try 'em and fry 'em", all by its' lonesome...but the Executive had better NOT eavesdrop on 'em without first getting a warrant...even if that means that they won't get caught.
Regards;
This exposes once and for all the fact that all the yammering about "judicial restraint" is all bullshit- just a tool to promote their agenda.
ReplyDeleteAnd this . . .
And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document. . . .
is one of the funniest things I've read in awhile.
Really, Ugly American, almost all well-informed lawyers, and law professors, know that what Bush has done is illegal. For example, Harvard Con law Professor Charles Fried, who served as President Reagan's solicitor general, employs the same word other discomfited Republican constitutional law scholars have to Bush's legal arguments, namely, "plausibility."
ReplyDeleteAfter that ringing defense in the first paragraph, Prof Fried then goes on for the rest of his op-ed to explain why we should put up with what Bush has done, even if it is illegal. Fried declares:
If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.
If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?
How about, Prof Fried (and Ugly American), if Bush lobbies Congress to authorize it? And make it, you know, legal? And if he cannot persuade a Republican-controlled Congress, then no, a reasonable citizen should not want the program to go forward.
I'm afraid the question in all this is whether there are people in either the Congress or the courts who will risk abuse to uphold their oaths to defend the Constitution.
ReplyDeleteAll Things Beautiful TrackBack Another Stab From The New York 'Aids The Enemy' Times
ReplyDeleteThe current "Conservative" method of constitutional interpretation is clear, once you understand its procedures:
ReplyDeleteClauses relating to Congressional power and individual rights are to be construed narrowly according to the founders original intent.
And Clauses relating to presidential power are to be construed more broadly than any human reading the words could ever imagine.
This is known as the interpretive method of the "living" chief executive.
In the future words of Chief Justice Roberts in the landmark FISA evasion case, "We must never forget that it is a dictatorship we are expounding."
Seraching without a warrant, where and when it's constitutional:
ReplyDelete"Police may search without a warrant if they reasonably fear for their safety or for the public's safety.
Example: If the police drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant.
If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant.
Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money.
Perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.
Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant."
(From:http://criminal.findlaw.com/articles/1465.html)
Reasonable fear for their safety or the public's safety...
Regards;
The problem here is that the Bush supporters' assumptions are warrantless.
ReplyDeleteUgly American said: "the Bush administration did this with the intent of protecting the American people from an attack by foreign powers."
ReplyDeleteWhoa! I thought that this whole War on Whatever was so utterly unlike anything in history in part because we were dealing with stateless actors who could strike without the fear that we would respond with a rain of fire directed at their nation's cities. Now I find out that it is exactly like WWII (when the Bush Administration wants to violate the Consitution and the FISA and point to Quirin), but it's utterly unlike WWII (when the Bush Administration wants to violate the Constitution and hold people indefinitely as "enemy combatants").
Oh, and the Quirin decision never said that the President could ignore the law, all the hand-waving to the contrary: The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war. By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules...
Congress didn't authorize action outside of the FISA, and in fact refused to provide it when so requested by the Bush Administration.
So, basically, Ugly American and fellow Bush fluffers are hacks. Of course, they could be arguing in good faith, in which case I'm sure that they won't be bothered at all at the thought of Pres. H. Clinton (or some similar nightmare-of-the-right) ignoring statutes and simply assuring everyone that their actions are done in good faith. I'm certainly not comfortable with it, either now or in the future, and I voted for Kerry!
The hacks desperately need to shut the fuck up.
anonymous bleats:
ReplyDelete"The hacks desperately need to shut the fuck up."
Hey, ace, who died and made YOU King?
This blurt made me fall about laughing:
"Oh, and the Quirin decision never said that the President could ignore the law, all the hand-waving to the contrary:"
Hey, hotshot, check your history books. Herr American Citizen Haupt was clapped into the hoosegow, tried before a military tribunal, and made to dance at the end of a rope in Leavenworth...and no criminal court in the land had any say in the matter.
Outside of the chain of review set in motion by the habeus corpus petition which culminated in "Quirin", that was "all she wrote".
So, again, the Executive has the power to capture, detain, and execute unlawful enemy combatants with onlt a military tribunal, and that's all hunky-dory with the Judiciary (viz Quirin), but CERTAIN people get all a-quiver that the Executive doesn't get a "permission slip" from the Judiciary to tap those suspected unlawful combatants' telephones.
You lot are bleating on and on about "the law", but even a passing glance at "Quirin" should be enough to indicate to folks,(at least those with eyes not glazed over with BDS), that there are circumstances when what is THOUGHT to be "the law", isn't the law at all...just some numbnuts' wishful thinking.
This cartoon nails it:
http://photos1.blogger.com/blogger/953/472/1600/senate%20is%20crazy%202.gif
Regards;
So, again, the Executive has the power to capture, detain, and execute unlawful enemy combatants with onlt a military tribunal, and that's all hunky-dory with the Judiciary (viz Quirin), but CERTAIN people get all a-quiver that the Executive doesn't get a "permission slip" from the Judiciary to tap those suspected unlawful combatants' telephones.
ReplyDelete(1) The United States had a treaty with the Cherokee Nation; treaties, according to the Constitution, are the law of the land.
(2) President Jackson sought to ignore the provisions of the treaty.
(3) The Supreme Court found in favor of the Cherokee.
(4) President Jackson famously rejected the Supreme Court's authority and brutally evicted the Cherokee anyway.
These four points, taken together, clearly indicate that the President has legitimate unlimited power to set aside the law, since I can point to a historical example of when our system of checks and balances failed. Clearly, we should have just given up the whole Republic thing when Jackson was President, never mind the Quirin decision.
The US also placed American citizens in camps on the basis of their race during the Second World War, but CERTAIN people get all a-quiver that the Executive doesn't get a "permission slip" from the Judiciary to tap those suspected unlawful combatants' telephones.
When will you numbnuts wake up and realize that the Founding Fathers meant for this nation to be a dictatorship, and that we should never try to hold to the ideals of the Constitution, since there exist examples of when we've failed?
--mds
Bilgeman: I stand by my comments vis a vis your hackery and its implications.
ReplyDeleteI'm familiar with the history, but, more important, I've read the law (that bit I quoted, as well as the rest). Congress laid out specific guidelines for prosecution of the war, an American citizen was acting as an agent of a foreign power, and the law was properly applied. How we get from the specifics of the WWII Articles of War to violating FISA through appeals to specifically denied authority is never explained.
And, of course, an explanation of how stateless terrorists suddenly became agents of a foreign power, or how the power to spy on Americans is good under a different president is never provided. Keep up the good work; I like it when my job is so easy.
Anonymous No-neck,(I so dub thee to differentiate you from Anonymous Drool-bib):
ReplyDelete"Keep up the good work; I like it when my job is so easy."
Well, now, THERE's an about face for you! Just a post ago you were whining:
"The hacks desperately need to shut the fuck up."
Can't you make up your mind?
I am presuming that you HAVE a mind to BE made up...(see? I'm a "Compassionate Conservative"!).
"I'm familiar with the history, but, more important, I've read the law"
Groovy for you...did you UNDERSTAND what you claim to have read?
"Congress laid out specific guidelines for prosecution of the war"
Actually, they didn't, because the AUMF isn't a Declaration of War, but let's fight one battle at a time, m'kay?
Congress authorized the use of military force...this is a nice platitude that masks the reality of killing and wounding people and breaking things.
Whether you call it "war" or "wilding" or "large scale organized transnational vandalism", is, TMM, a point of art.
That Power that Congress thereby conferred upon the Executive is pretty fucking all-encompassing.
There might be a few executive powers more absolute than ending lives extrajudicially by the boxcar-lot but I'm not aware of them.
A reasonable person would be excused for accepting the idea that if the President was empowered to sail a B-52 over a village and blow it to smithereens,as part of his execution of the duty that Congress laid on him, then he would, and should ALSO be empowered to find out if it was the right and proper village that he was mailing into the Hereafter, see?
IOTW, Congress, and specifically the Congressmen beholden to the glazed-eye, foaming-at-the-mouth and howling at the moon wing of the Democratic Party, is going to look absurdly incompetent and unreasonably skittish if they try to make a "parade float" of the proposition that they did NOT and NEVER meant to accord Bush this power.
Look, No-neck, ole chum, if you ain't gots the cojones to shoot your own dog when it's sick and in pain, then hand your sidearm to the fellow who can...s'okay, we understand, we like dogs too...but don't tell the shooter to keep his eyes closed, huh?
It needlessly inconveniences the shooter, and it annoys the Hell outta the pooch.
You stay outta the loop once you've set it up, and it can be done with one quick and painless shot.
And in case my folksy, down-home copy is too opaque for you, when you snivel that:
"Congress laid out specific guidelines for prosecution of the war,"
What you are REALLY communicating is:
"We don't LIKE this President OR his wars, and since we CAN'T seem to get the stoopid hicks to vote our way, we're going to try to put our agenda across by judicial fiat."
It's an old and shopworn tactic of the Left.
Can't you lot get a new song and dance?
Regards;
Anonymous(mds):
ReplyDelete"The US also placed American citizens in camps on the basis of their race during the Second World War, but CERTAIN people get all a-quiver that the Executive doesn't get a "permission slip" from the Judiciary to tap those suspected unlawful combatants' telephones."
Hmmm, that's not a bad idea, if that's what you're saying...detain suspected unlawful enemy combatants in camps, huh?
At least then we wouldn't need to tap their phones.
"When will you numbnuts wake up and realize that the Founding Fathers meant for this nation to be a dictatorship, and that we should never try to hold to the ideals of the Constitution, since there exist examples of when we've failed?"
We're not a Constitutional Republican Democracy now?
As for the Founders, I think it was something more akin to an elected oligarchy that they were aiming at.
And to add a bullet to your Cherokee Nation/Andrew Jackson pas de deux...
Andrew Jackson was the first Democratic Populist, was he not? Fightin' against all that Eastern White Male Privileged Oligarchy so that he could "Give the People what they want".
Too bad for the Cherokee that what "The People" wanted was Cherokee land.
What a wunnerful thang to be a "Progressive"...dispossess and exile tens of thousands, and yet go down in history as a "Man of The People",(kinda like Stalin...or Mao).
Conservatives do shit like that and are recalled as odious greedy bastards.
(The Bilgewife is half American Indian,btw, although not Cherokee).
Regards;
jodypschaeffer:
ReplyDelete"Declaring Jackson a modern progressive for exiling the Indians. Enjoy strawmen much?"
Hey, take your complaint to the Anonymous mds...he dug up Andy Jackson and dragged him in here.
(For what reason, God ONLY knows).
And Jackson was such a good Progressive that the sainted President Carter claimed to want to model his Administration upon Jackson's,(except the part about expropriating land and shooting foreigners, Carter gave AWAY land and foreigners shot US)...all that bit about walking down Pennsylvania Ave...
are you old enough to remember that?
Wunnerful Progressive...a mass of people suffer so that a subset of other people can ALSO suffer, but the Progressives get to feel good about themselves,(that's what counts).
"I do believe we've just seen the conservative legal approach in action."
What's that, taking Liberal rhetoric and then thumping Liberals in the head with it?
That isn't a "conservative legal approach"...that's "unavoidable".
Regards;