Edward_ at Obsidian Wings, who seems to have assumed control of the website for the last two and a half days, has a recent post that distills one of the chief questions that everybody should be asking about Bush’s recent FISA troubles:
If the NSA spying idea is such a good one, now that everyone knows about it, why doesn’t Bush go to Congress and ask them to make it the law of the land? To insist he’s going to keep using it, as he has, without any oversight seems to confirm Naftali’s assertion that his motivation is to “win a conflict over executive power.”
Nobody should doubt at this point that the Bush Doctrine has less to do with militaristic imperialism than it does with a vastly expanded theory of executive power, a theory more or less spelled out by presidential aide John Yoo. You’ll recall that Yoo thinks that basically anything is legal as long as the president feels that it’s necessary. The president, in his view, is the law.
For his part Edward’s main error is to assume that there is a conflict. Right now there isn’t. The Bush doctrine has cemented itself in practice mostly without comment, thanks to a codependent relationship that Bush has shared with his own party’s Congress: he let them write whatever damn law they please (has he yet vetoed a single bill? no.) and they let him assert whatever powers make him happy. Oversight is for Democrats.
Regarding this kind of question it shouldn’t matter where you stand politically. Does this theory make you comfortable? Eventually Hillary will win the oval office, or any other Democrat for that matter. The slime machine isn’t particular. Whether or not you love our government today, eventually it will be staffed by people you hate. Do you want them to have the sort of powers that John Yoo claims for the Executive? Does the new idea of legislating by signing statement (and here) make you comfortable? Look back at those two Clinton years when Democrats controlled Congress, and answer honestly.
capelza
I think hilzoy is out because of a surgery.
The last paragraph says it all…is what good for this (Bush) goose good for the future Democratic gander?
Mike S
A week or so ago Digby pointed out an article that said Yoo wasn’t anyhting more thana mid level man at justice. No management, no nothing. So they had to dig deep to find someone who would give them the power they wanted.
The Other Steve
Actually, I think it’s pretty cool.
See I figure in a few years we’ll finally have a Democrat as President, and he can call in the black helicopters and declare martial law and the Republicans can say nothing about it, because the President is now King.
Or then again… maybe I should rethink my position.
Steve
The idea that Bush should go to Congress to ask for these powers is purely rhetorical. The administration already DID ask for many of these powers a few weeks after 9/11, and Congress refused to grant them.
And you might recall that back in the fall of 2001, not a lot of people were saying no to the President regarding anything at all. The vote on the Patriot Act, after Congress declined to insert the additional powers that Bush wanted them to grant, was 99-1.
Pooh
Two good recent pieces on Yoo here and here.
Someone, a few weeks ago quoted Warren Buffet as saying something along the lines of ‘design your company so that any idiot could run it, becuase some day, any idiot will.’ Now, my personal feelings about W aside, that seems about right. Even if he only uses these powers in a benevolent and altruistic manner, the next guy/Hillary may well not. (Would you like to be Ken Starr if Hillary had these powers?)
neil
This reminds me of how in 1998 I thought that from now on, every President was going to have to be squeaky clean and watch his back or else get impeached by his political enemies.
Ancient Purple
No, Tim, I don’t want the executive branch to have that much power, regardless of which party is in charge.
Honestly, were the early administrations of Washington, Adams and Jefferson anything resembling what we tout as the executive branch today?
I will forever fail to understand why it is that people are so frustrated with the three equal branches of government map laid down by our founders. Is it really that horrible to follow the rules so that everyone gets a fair treatment and the Republic remains stable?
Perhaps it does go back to the fact that people are quick to look to a leader to solve their woes. The sad fact is that we have that. It is the Constitution. But damm it if that fact is going to stop people from letting the Office of the President become the new imperial headquarters.
jg
If you were the president and your party believed that the president is actually pretty weak outside of wartime when they rule all, wouldn’t you declare war and not give a timtetable for when the war ends?
Hypothetical of course.
Pooh
jg,
That’s a good point. The whole war powers rubric provides some pretty unhealthy incentives. If the endgame was capturing/incapacitating one enemy…I’m not making that suggestion, I’m just saying.
For anyone who’s played Civilization, it’s like when certain “Great Wonders” are rendered obsolete by certain technologies…
ThomasD
“If the NSA spying idea is such a good one, now that everyone knows about it, why doesn’t Bush go to Congress and ask them to make it the law of the land?”
It’s called begging the question.
The reason is: it already is the law of the land. He might as well ask permission to issue an executive order.
ATS
Wait till we see terrorists freed because they had been illegally wiretapped!
Darrell
Vastly expanded? Been going on for a long time
Pooh
Shut her down…
Zifnab
It’s kinda like the OJ trial. Although it is technically true that he killed his wife, as presented by the evidence, it is also true that the LAPD is a bunch of racist pricks who would probably have planted the evidence on him one way or another regardless of his guilt.
So we’re going with the not-guilty by spit of jury.
jg
If Cheney says they are just regaining executive power that had been restricted for decades how can the right keep saying Clinton did it too?
If the executive branch is so powerful we is its power spelled out in Article 2?
K
If Congress authorizes it into law that law immediately goes to federal court. The court may toss it, expose almost anything being done, try to limit or alter it, or accept it.
As long as the program was secret none of that mattered. Now, no matter what happens, the program is partially compromised.
So if you believe the program is legal under the war powers of the president then it was done the right way – secretly. If you believe otherwise, read on.
Why send it to Congress for authorization unless you believe they have more power to supervise war operations than the president. That can be argued but is unclear to me.
Finally. If you believe the fourth amendment limits the government during war then the proper venue is the courts, not congress.
The real question is “what is this war?” It is not defined. You don’t know exactly who you fight, where to find them, or if you are winning. Winning is not defined. So what are to be the rules?
Rob
Whatcha smokin??
This has been discussed. He did not conform to FISA. But if you have any new information you would like to share we would like to hear it.
andy
What happenend in the first two years of the Clinton administration that was so alarming? An Independent Pros. was appointed, among other things. I don’t remember any great abuses of power.
Steve
What Justice Jackson recognized in the Steel Seizure Cases is fairly simple. The Constitution does not answer every conceivable question, and in particularly stressful times, there are going to be grey areas. And thus, the country functions best when the three branches of government can get together and agree on a course of action for handling those grey areas. This is what occurred with FISA, and yes, the Patriot Act.
Working together is the only way to avoid every exigent circumstance turning into a constitutional crisis. If the President wants to arrogant for himself every conceivable power the Constitution doesn’t expressly say he can’t have, well then, there’s going to be conflict. It functions better if he negotiates with Congress about the powers he wants and the powers they don’t want him to have. The Senators, Congressmen, and Executive Branch members who objected to this secret spying program are grownups too.
The Other Steve
Not according to the Bushies and their wingnut followers.
Everybody is a child, and just can’t possibly comprehend the imagined threat we are under.
Pat R.
Most of you folks appear to know zip about actual laws and regulations in this area. Under the circumstances, perhaps you shoud STFU and stop repeating the party line as espoused by Tiny Meat and Kos, et.al.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved–in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives–outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation’s declared enemies, even when they elect to communicate with people within our country.
Cyrus
I call DougJ on Pat R. “STFU” is not his writing style, but other than that it fits him to a T. I mean,
Give me a break.
Just on the off-chance that he is in fact genuine, though… “Pat”, do you have evidence that this program was limited to “foreign terrorists”, individuals that “are communicating with Al Qaeda terrorists,” and America’s “declared enemies”? If you do, please cite and link, but I’d be very surprised if that were the case, because after all the whole point of warrantless wiretaps is that they avoid oversight and accountability and all that fun stuff. If you don’t, then to borrow your own acronym… STFU.
Tim F.
The point isn’t that they did anything wrong, the point is that it made rightwingers extremely uncomfortable. Imagine how uncomfortable they would have felt if Clinton actually had asserted the sort of powers they accused him of doing.
Baron Elmo
The power struggle in the GOP between libertarians and moralists is so, like, last year, man.
The new scrap for the soul of the Republican Party will be betwixt the royalists and the parliamentarians, methinks.
White House on line one for Oliver Cromwell… Oliver Cromwell, line one…
JohnTheLibertarian
Cyrus,
your argument is specious. You have no evidence that the program wasn’t limited to foreign terrorists. And most of you on this thread seem to conveniently forget that a lapse of aggressive domestic intelligence is what contributed to 9/11. Until the Federal Government brings a case against an American citizen that falls outside collaborating with foreign aggressors, say, busting someone for drug smuggling or child slavery, the evidence of which was obtained through NSA surveilleance, then you are howling at the imagined slippery slopes of your conspiracy-addled minds.
And I’m a libertarian, so don’t cry civil rights fouls to me.
Kudos to Pat R and K.
The Other Steve
The cowards are in full force tonight.
jolly
Nonsense. The failure was due to a lack of interest in pursuing recognized leads.
danelectro
i for one, appreciate johntheliberatarian taking time out from his patrolling duties in iraq to post here.
Zifnab
It’s funny you should say that. Because to date we’ve got the FBI spying on Quakers. You’ve got an author and political dissident being put on the “No Fly List” for no reason other than his political affiliation. And you’ve got the nerve to question whether Bush is misusing his NSA wiretaps because he hasn’t revealed their targets. Targets, mind you, that will never be revealed into public record because that would compromise national security. We slipped down the slope and now we’re headed face first over the waterfall and you want to make the claim that people are jumping the gun on Bush’s culpability. I call bullshit.
Ancient Purple
What a load of crap. How quickly you forgot about the “Phoenix memo” or the infamous security briefing stating that “Bin Laden determined to strike.”
We had the signs. We chose to ignore them.
Pooh
Pat R.
So many mistakes so little time…
A misstatement of the law as well as some question begging. Are you communicating with Al Qaeda? Well the president said so, so you must be.
The Constitution is the baseline for rights. Congress or the states are free to grant more rights. Which FISA does. Explain to me how FISA is unconstitutional. Please cite cases, or the appropriate RedState post which has already benn debunked. (Note, the language of in re Sealed Case is dicta, try again.)
But feel free to go on assuming that the only people spied on were terrorists. Because, since it’s a secret program, you’ll know if it gets exceeded. Except when those grabbed up are not allowed to see lawyers or get their day in court for 3+ years.
If you’re going to drop “lack of knowledge on the law” bomblets, you better bring more than some talking points. Try bringing some actual law. And John Yoo’s book doesn’t count. There are some people with knowledge here, and the law is not a Faith-Based Initiative.
moflicky
ah. ‘signs’….
yup, signs that showed us that al-q was about to ‘strike’.
so, I guess we shoulda shut down airline security, started frisking gramma and taking away her nail clippers. because, you know, the ACLU wouldn’t want us to profile swarthy young men. All of this, before 9/11, when the ACLU and liberals of all stripes would have rioted in the streets at the indignity of having to spend more than 10 minutes in an airport security gate.
Or I guess we should have shut down all flight training schools too. Oh yeah, they already knew how to fly in August of 2001.
I suppose that memo was quashed at the president’s desk? or was it lost because after 8 years of Clinton, the FBI was too busy rousting militia groups to bother with a few arabs flying cessnas?
Bin Laden had been ‘determined to strike’ for the last 20 years. Clinton’s justice department put up a wall between the FBI, CIA, NSA and DIA. absolutely NO sharing and comparing of information between the departments, because – well you know the answer.
What a load of crap indeed.
S.W. Anderson
Although marred somewhat by the word “hate,” these questions make an intelligent and important statement. How much more worthwhile it would be if people would try to see beyond the squabble du jour.
There’s a big picture involved, whether or not anyone bothers to step back, look at it and make real sense of things.
Ancient Purple
And the reason Bush didn’t tear down that wall the minute he stepped into office would be…. ?
Pb
Shorter moflicky:
Don’t you liberals know that 9/11 was all Clinton’s fault? Oh, and the ACLU too. (mumble mumble. also whoever O’Reilly is bashing this week–probably those commie ‘media matters’ folks were in on it too. also, Michael Moore is fat.)
Ancient Purple
Pb,
You forgot:
“John Kerry wasn’t in Cambodia on Christmas Day.”
“What about Filegate and Travelgate?”
and, of course,
“Hillary personally killed Vince Foster.”
The Other Steve
Right, because you know… the teararists may not be smart enough to think about recruiting women, especially Western White Women.
http://www.timesonline.co.uk/article/0,,7374-1898856,00.html
You don’t profile by race or sex. You profile based on other factors such as how they are acting, etc. Christ, I would have thought by now with all the various interviews with israeli security experts who have been dealing with this shit for 40 years, that this fantasy would be dead.
I’ve had enough shit from cowards such as yourself.
The Other Steve
Pb,
Isn’t he supposed to rail against tree huggers or something too?
I think it’s sad that moflicky the coward stands for nothing other than quivering in fear and pissing his pants at the thought of terrorists, that he has to call people who stand up for our freedoms and rights names.
He probably calls WWII vets communists like his buddy Grover Norquist.
MAX HATS
This thread reminds me,
I’ve yet to meet a self-described “libertarian” on the internet who wasn’t ga-ga for unchecked executive power over any and all aspects of individual rights.
Words meant things once.
The Comish (sic)
Pooh:
Pot, kettle, black.
Excellent. So I suppose you’ve got some direct decisional language that contradicts In re Sealed Case?
… No? Then dicta is the only authority we’ve got. Have you got some dicta that contradicts In re SC?
… No? Then I guess the dicta is the most controlling authority. Except of course for Howard Dean, MoveOn.org, and you. But last I heard, those weren’t even persuasive authority for the populace, let alone the Constitutional jurisprudence.
Article II, section 1, of the Constitution grants the President the nation’s “executive Power.” The “executive Power” was not defined in the Constitution because the Framers all understood it to mean the same things that John Locke and other primary political philosphers had said it does. And Locke clearly understood the term to refer to “external intercourse” or foreign affairs, like war and national defense. As stated by Locke in his Second Treatise on Government:
Not good enough? Well then, let’s see what James Madison had to say on the subject in 1790:
The baseline question is whether Congress may pass a statute that removes or limits the powers of the Executive granted in the Constitution. Because the Constitution is the supreme law of the land, Congress may not pass a law that contradicts the Constitution. Congress has no more authority to pass a law limiting the Constitutional power of the Executive than they have they have to pass a statute that limits the power of the Supreme Court to exercise judicial review. INS v. St. Cyr, 533 U.S. 289, 314 (2001) (stating that laws that would strip the federal courts of the power to review unlawful government action raise “serious constitutional questions”).
Of course, Congress can’t exert control over the Constitutionally-granted powers of the President. If you need authority for that argument, try the Constitution. See U.S. Constution, art. VI, Par. 2 (the Supremacy Clause).
Once again, pot, kettle, black.
There are lots of people on both sides that know a little bit about the law. And there are a few people that know a lot about the law. Given the obvious limits of your own knowledge, it might be wise to express a little bit of humility in the future.
The Comish (sic)
Tim F:
I don’t doubt that some Republicans were made very uncomfortable by Clinton’s assertions of Executive power. Remember the Hell raised over Echelon, a surveillance device that supposedly monitored every electronic communication worldwide (including in the US) for key words? And remember the folks raising a stink when Jamie Gorelick said that “the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes”? And remember the fluff over his broad assertion of executive privilege with regard to the sexual harassment investigation and health care policy meetings. See Association of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).
Every President in modern times has interpreted his own Executive powers in the broadest possible way. It does disservice to us all, and possibly insults our intelligence, to suggest that Bush is the first President ever to suggest that he has strong Executive powers. At the very least, it moves the discussion from policy debate into empassioned and unreasoned hysteria, like those morons herein calling those with opposing viewpoints cowards.
Kimmitt
Most of the folks backing Bush don’t believe this. It’s the Final Showdown for these people, and they think that fear and Diebold will carry them over.
The Comish (sic)
ATS:
This is the type of silly and uninformed comment that does no good.
Even if we assume that the wiretaps were illegal and warrants were necessary to listen in on conversations between foreign terrorists and American terrorists, there’s no reason to believe that terrorists will be set free because of it. And there’s every reason to believe that it’s resulted in a net benefit to us all.
In domestic law enforcement, police officers are often faced with a decision to either go get a warrant or collect evidence without a warrant. For example, let’s say that a cop arrests a suspect at his home, and notices that there are guns in the next room. The cop can either go get a warrant — in which case someone can come confiscate the guns before the cops get back with a warrant — or arrest the suspect and take the guns without a warrant. The worst thing that can happen is that a court later determines that a warrant was needed to take the guns.
And what happens if a warrant was needed? The suspects don’t go free; the illegal guns aren’t released back to criminals. The court just excludes the use of the guns as evidence in the suspect’s trial. It’s known as “fruit of the poisonous tree.”
And given the option between prosecuting the suspect on the gun charges, and making sure the guns aren’t used in future crimes but not prosecuting anyone on that basis, the cops are certainly justified in letting that one piece of evidence go to make sure that later, more serious crimes are not committed.
The same thing occurs here. Even if the government has acted without a warrant when one was necessary, it’s silly to suggest that the government acted improperly when its actions clearly prevented terrorist actions. As stated by the initial NY Times article disclosing the existence of the program:
Pooh
The dicta in one case, (not even relating to the decisional issue in said casse) expressing an interpretation almost universally rejected at the time of FISA’s enactment – save by one gentleman. Who also happened to be on the panel of Sealed Case. (link)
(I’ve seen Professor Lederman’s basic contention echoed and amplified elsewhere, but couldn’t find the specific links)
As to your Art. II arguments, they’d make more sense if we didn’t have those pesky Articles I and III which discuss ‘coordinate branches’. Just out of curiosity, what can’t the President do, with no oversight, authorization or review from those bodies, in the name of ‘security’? Your ‘unitary executive’ theory is infinitely expandable.
I’ll ignore the rest of your peen waving.
The Comish (sic)
TimF, since you’ve asked direct questions, let me answer them:
Yes. I would much rather have a strong executive with regard to the executive’s war powers. The Framers understood — based on both their knowledge of political theory and experience with the Articles of Confederation — that we need an Executive to handle matters of foreign policy, national security, and war. I agree with the Framers on this point, and trust that the people we elect into the Presidency won’t abuse the power any more than it’s been abused by past Presidents with the same powers.
Every time a President is elected into office, we have this debate wherein the party out of power accuses the President of grabbing too much power for himself. And the Union hasn’t fallen yet. I see no reason to believe that it will.
Yes. First of all, I’m not one of the hysterical masses that thinks Democrats or Republicans are asswads simply because of their political party. I tend to think that all Democrats and all Republicans want what’s good for the country, even if I disagree with their particular ideas of what’s good for the country. So I doubt I’m going to “hate” anyone elected to the Presidency. It seems that this type of faith is increasingly rare, though.
Second, John Yoo didn’t claim any additional powers for the President. The article that you cited, which attempts to summarize Yoo’s memo, does a remarkably poor job of accurately stating what Yoo said. I’d highly suggest that you read the memo for yourself and make up your own mind about what he said. (For example, Yoo never said that the President can torture people; he talked about the applicability of the Geneva Conventions and US laws with regard to certain situations, like whether they apply to unlawful combatants. You can’t blame John Yoo if the Geneva Conventions explicitly make exceptions for unlawful combatants, and he merely recognizes that fact.)
Nor have I seen anything that would lead me to believe that Yoo’s memo was anything more than his own opinion on the status of the law. It certainly hasn’t been adopted as an official stance of the Bush government. Heck, the article that you cite points out that Yoo was at most a middle level beauracrat; he didn’t have the power or authority to declare policy on behalf of the US government. So all this hysteria over the effects of government pursuant to John Yoo’s memo seems to me to be premature, at least.
Third, a mere grant of broad power to the Executive does not mean that power will be abused. Once again, people seem much more concerned with what could happen if our next President is some horrible caricature of evil. I think the likelihood of that happening is pretty remote. So I’ll save my hysteria for more important and more likely occurrences — like whether Jerry Jones is going to name himself the next coach of the Dallas Cowboys.
No, the idea of legislating by signed statement does not make me comfortable. But then again, Bush hasn’t legislated by signed statement.
Any honest assessment of the situation must acknowledge that we’re at least in a legal grey area here. Bush thinks he’s got the power to do what he’s done. You, Nancy Pelosi, and host of other people think he doesn’t. There are good arguments on both sides. All Bush did was sign a statement saying that he believes he’s got the power to do what he’s been doing. This is no different than any other executive order signed by any other President, and it certainly doesn’t amount to legislating.
I’m willing to concede that the power asserted by Bush could be abused. So could any power of the President to act as Commander in Chief, just as the power of judicial review and the power to tax and spend can be abuse by the Judiciary and Legislature. But that mere possibility does not have me pulling out my hair and screaming bloody murder. I don’t think it’s ridiculous to have some measure of faith that the people elected by millions of Americans will not turn out to be the Son of Sam. And if that happens, I’m guessing the American people will have the capacity to deal with that reasonably and thoughtfully and without the type of hysteria that’s on display right now.
The Comish (sic)
Pooh:
Wonderful. As evidence of the non-binding and fallacious nature of the court’s language, you cite to one article by a non-judge who thinks the decision is wrong. Let’s see if we can parse his reasoning.
First, he says that it’s dicta. That’s fine. But it’s dicta in a case, which certainly provides more persuasive constitutional authority than a blog entry.
Second, you seem to think it’s the opinion of one person on the panel of judges. And yet, it made it into the panel‘s decision. One would think the word “panel” would alert you to the fact that more than one person agreed to this point, and if not, the use of the word “We” to describe the people arriving at the aforesaid conclusion. But apparently, nothing should be taken as too obvious a point around here.
Third, the article quotes the “we assume” language, but notably leaves out the fact that the Court explicitly stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” Even if you think the Court’s language in this case was dicta, how do you explain “[a]ll the other courts” which have held that the President had such authority?
Fourth, I think the conclusion that the government’s authority to conduct warrantless searches is “a throwaway line … not germane to the holding of the case” is silly. The court was specifically deciding the limits of the Executive’s power to conduct warrantless searches to obtain foreign intelligence information. Here’s the court’s statement in full:
The court wasn’t saying that they didn’t decide whether the Executive had that power; indeed, the determination of whether the Executive had that power was necessary before determining the scope of that power. The court was merely saying that because of the long line of cases saying that the Executive had the power asserted, they accepted without extended discussion that the Executive’s assertion of power was authorized.
Fifth, you’ve got to appreciate the hypocrisy of an argument that sluffs off the President’s position as based on dicta, and then cites as primary authority Justice Jackson’s concurrence in Youngstown Steel. Have concurrences taken on binding precedential value when I wasn’t looking?
Sixth, where’s your authority for the proposition that this assertion of authority was “almost universally rejected”? If this isn’t wishful thinking, it at least appears to be overreaching.
Seventh, on the off chance that you’ve just got a personal problem with In re Sealed Case, what about the concurrence of Justice White (a Kennedy appointment and Democrat) in Katz v. United States, 389 U.S. 347,363-64 (1967):
Obviously, this is dicta, since it’s in a concurrence. But you have shown an affinity for concurrences in the past, and this one seems pretty clearly on point.
And where in Articles 1 and 3 does it give the Executive or the [snort, chortle, laugh] Judiciary power over foreign surveillance? Heck, where does it give them power over domestic surveillance? Where does it give them powers over the conduct of war?
It doesn’t. And your desperate cite to Article III on the Judiciary is particularly revealing about your scope of knowledge on the subject.
No, it’s neither a “unitary executive” theory, nor is it “infinitely expandable.” I suppose this is just more hysterical handwaving. Any reasonable person wouldn’t suppose that the power to act as Commander in Chief and war powers would grant the power to act in any situation. Just as one example, the President’s power can’t extend to the power to tax and spend, nor does it extend to purely domestic matters like divorces … egad, I could go on forever. If you can’t manage to figure that one out, no amount of reasoning may help you.
Is this another way of saying, “I haven’t read anything on Daily Kos that responds to your other points, but I’ll get back to you when they tell me what to say”?
The Comish (sic)
One more case showing that Bush and the Court’s assertion of power wasn’t “almost universally rejected”? The 4th Circuit Court of Appeals, in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), said that the President did possess this authority:
Again, there are good arguments on both sides. But overstatement and ridiculous hyperbole does nothing to help the credibility of your arguments.
John S.
And the first congressional report on the matter makes the Comish look a little bit silly…
Analysts: Bush spying rationale legally shaky
Source
But by all means, continue to puff your chest out and make your weak legal arguments. The President and his attorney general would be proud of the fine work you are doing here.
Tulkinghorn
.
In the face of this, people wonder why the conspiracy theorists of the far left are so vocal, hysterical, and given grudging consideration? The GOP is acting like they have a permanent, unbreakable hold on power. It makes sense for their opponents to wonder why they should think this.
Jolly
52 warnings to the FAA. Warnings from flight schools. Warnings from the FBI. A memo W didn’t bother to read because he was too busy clearing brush.
But since all the gory details weren’t written down and mailed to W himself, there wasn’t enough evidence, right?
As if those details would be discussed over the phone for anyone listening to intercept, right?
Are you really that stupid? Apparently so.
John S.
Comish-
You use a lot of drawn out reasoning to support your flimsy arguments, but as usual the majority of it is bullshit.
You quote Madison:
Emphasis mine. Since when are terrorists a ‘foreign nation’? Last time I checked, they didn’t have a flag or occupy any official territory. Ironically, Madison is attributed with some rather intereting insight on the present situation:
Interesting though that you think that Madison would be a champion of your insistence that the President have broader powers than he was ever intended to. So who else do you want to trot out as a completely ass-backwards interpretation of historic political theorists? Ah, Locke. Well let’s look at another part of his Second Treatise on Government:
So much for your notion that Locke also supports your view of ever expansive Executive power. I have to wonder, have you really read the writings of our founding fathers and the historical figures that influenced them? I’m guessing only enough to find the parts that can be adapted to your viewpoint.
The simple fact is that this country was founded to escape the tyrranical rule of a Monarchy. Philosphers – like Locke – that wrote about the system of government we are modeled after also sought to create a system that would deliberately divest too much power in the hands of the Executive because they did not want another King. Your every insistence otherwise only proves that, to put it bluntly, you don’t have a fucking clue. Since I take this as a given, I’ll throw you one last clue on how those that created this nation intended for it to operate. I take you back to Madison and his Federalist 51:
There are lots of people on both sides that know a little bit about history. And there are a few people that know a lot about history. Given the obvious limits of your own knowledge, it might be wise to express a little bit of humility in the future.
The Other Steve
You know, as bad as the leftist voices may be, they are not nearly as whacked out as the rightwinguts were in the 1990s with Clinton.
I have yet to see any leftist accuse the President of smuggling Cocaine… keeping a list of every staffer who dies for whatever reason and trying to link them all to a grand conspiracy by the President to silence opposition… attributing every plane, train, or automobile crash to the President silencing opposition.
Yes, this is the kind of stuff that went on in the 1990s with the Republican party. And it wasn’t just the fringe, it was the core included elected officials and an entire Ken Starr investigation.
So while I understand you are trying to defend the President with an attempt to discredit opposition as conspiracy theorists… It appears once again, you are just projecting your own weaknesses onto your opponents.
moflicky
Uh, first of all, did I call you or anyone else here a name?
unless you think liberal is a viscious and libelous slander, no. I didn’t. I criticized
Second, I’m not afraid. I sleep like a baby at night. I’m just pissed off at the ridiculous notion that “bush should have known” about 9/11.
I think it’s sad that there are so many here who are quivering in their slippers worried about being wiretapped, secret agents knocking down their doors in the middle of the night, black helocopters following their every move or wearing tinfoil hats so that the guvurnmunt won’t read or control their thoughts.
All of you who replied completely miss my point. lets assume there was specific informatino about the 9/11 hijackers on bush’s desk. what should he have done with it? no names, no dates, no times, just “bin laden planning to use planes as missiles, and al-q operatives are taking flight lessons.
what would have been the prudent thing to do? and would any of it have done any good?
If he’d put the general public on alert, you’d have accused him of ‘using scare tactics to consolidate his power’.
He could have just beefed up airport security, but what would the american people have done if he had implemented post 9/11 airport security before 9/11? Or agressively snooped on arab visa holders.
They’d have screamed bloody murder and voted every last person involved in the decision right out of office. and all of you would have been right up front, yelling the loudest.
so, to recap, you have given us our option. One option actually. We’re supposed to prevent this sort of attack by magic.
Don’t try any tactic that might actually produce results, because WE WOULD LOSE ALL OUR FREEDOMS!
gimme a break.
moflicky
finishing a sentence.
I didn’t call you a name. I criticized your words, not you personally.
And you have the gall to call me a coward, while accusing me of calling you names.
oh, the irony. or is that hypocrisy. sometimes I can’t tell.
capelza
The Other Steve…don’t forget, Rush still pulls out the Vince Foster card. Even last year he implied that a certain very vocal anti-war protester who I am hestitent to name because we know how John Cole feels about her shouldn’t criticise Hillary Clinton’s pro-war stance because, well we all know what happened at “Fort Macy Park”.
And am I the only person who noticed in the summer of 2001 that the Attorney General of the United States began flying in only private jets because of a FBI “threat assessment”? I remember hearing about it then and wondered what was up. So at least HE was taking the FAA seriously?
Okay, I’ll remove my tin foil hat now and ask the folks who go back to the previous administration to find precedent of wrong doing..or as I like to say it…it was wrong when Clinton did it, but since he did it too, you shouldn’t complain when this President breaks the same laws (says you).
Darrell
Tim F, you and others have made the claim that Bush’s NSA executive order took ‘vastly expanded’ powers from what had gone on before him. In John cole’s initial post on this subject he posted that he thought this kind of thing (warrantless monitoring of US citizens when communicating with foreign suspects) had been going on for some time.
In other words, if this had been going on for a long time, then your claim of vastly expanded powers would be baseless hyperbole. I posted earlier a 1993 NSA/DOD directive which appears to directly contridict your assertion. That 1993 directive indicated that under the FISA rules, the NSA general counsel and AG have full power to run ‘reasonable’ warrantless surveillance of foreign suspects when they communicate with US persons, and further states that such warrantless surveillance involving US citizens can be stored in a database for a ‘sufficient’ period of time. Nothing in this document indicates warrants would be required to monitor US citizens when foreign suspects are the target. Please correct me if I’m wrong, but if you cannot refute the info. in this 1993 document, how about a little honest acknowledgement you and your entire side were badly wrong about the whole “power grab” accusations as this appears to have been going on for long before Bush came into office.
Persons who can be wiretapped under this program include “Any person, including a U.S. Person” who:
Oh, and the definitions of a ‘Foreign Power’ is quite broad
The Bush-hating left has been quite arrogant about their claims regarding Bush’s NSA order, whereas conservatives have pretty much stated that it looks like a ‘gray area but Bush’s case looks good’. Given the extreme arrogance shown by the left, it looks like a double serving of crow is in order, exactly like with their hysterical overreaction on White Phosphorous. But as with WP, they’ll never admit how wrong and how hysterical they were, they’ll just move on to the next baseless accusation
The Other Steve
When did I call you a name? I simply described the way you were acting… a coward, pissing in your pants.
If you don’t want to be called a coward, don’t act like one. Get a backbone and stand up for what’s right, instead of playing political hackery with American rights.
It’s all up to you, buddy.
It sounds from the way you rant that you’d be happier in Soviet Russia, where you would feel all safe and cuddly. That’s great. If you don’t like America, then move.
moflicky
other steve,
such finely honed and reasoned debating skills you have. you must have learned that in kindygarten.
I know you are, but what am I?
moflicky
or another way of expressing it:
the other steve sez: “I refuse to engage you in debating the points your raise, because you’re a big stinky!”
capelza
…has the moment finally come when the liberals will be the ones sporting “America, Love it or Leave it” bumperstickers? I’m gonna get me one!
Darrell
Ouch! that bitch slapping must’ve stung, huh Pooh?
John S.
You would know, Darrell. Nobody gets bitch slapped around here more than you.
jg
A judicial role when the President conducts domestic surveillance. FISA is that judicial role. Bush says that as a wartime president he doesn’t have to go to FISA for warrants even if a US citizen is involved. Yet right wingers keep pulling out all kinds of backing documentation to show that Bush can spy on foreigners without warrant. In would be great if we were all on the same page but I’m not sure we’re all reading th esame book.
Read Hamilton. He points out that the constitution spells out the powers that each branch of government has. If its not in the constitution they don’t have the power. Beacuse of this he was against the Bill of Rights. His argument is why specify a right that can’t be restricted, such as freedom of the press, if nothing in the constitution gives government that power anyway. By doing so you imply the power. Example: if you say in the bill of rights that the gov’t can’t search a citizen you are implying that its a governmental power that is being restricted by the bill of rights. Since Bush is now under the delusion that he can suspend the fourth amendment at a time of war (power drunk fuckhead that he is) I’d say Hamilton was a genius.
Darrell
There were definitely some farfetched right wingnut accusations being flung around under clinton. But none by high level elected Republicans to my knowledge. But on the Democrat side we have Al Gore, a Democratic Presidential candidate and former VP screaming like a loon that Republicans are Nazi ‘brownshirts’ and we have Dem congressmen (endorsed by Hillary) accusing Bush of having ‘known’ in advance that 9/11 would occur.
Anything equivalent to that lunacy coming out of Republican congressmen, Senators or Presidential nominees?
Jolly
I never thought that respecting the Constitution was a tinfoil hat thing.
How very odd.
delf
Comish,
Am enjoying reading your responses. Have begun reading the Yoo memo for the second time. I am entirely uneducated in these judicial matters but feel that based on what a “reasonable person” would construe, think it prudent to attempt an understanding of it.
Would appreciate your take on the following…and I am quoting from the text.
From the memo:
“Declaring war is not tantamount to making war – indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to “make” war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from “make” to “declare…..
If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.”
The memo then goes on to say:
“In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers – the President as Commander in Chief, Congress with control over funding and declaring war – without requiring that they follow a specific process in making war. ”
So far I am following the logic in his memo without deciding if I am in agreement or not. But then the following arguments presented under the “Vesting Clause” seem to negate the issue presented above.
“But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as “executive,” assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King’s traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II.”
Seems he is trying to use the same explanation both ways. And if so then I suppose individual states have cause to object to the Patriot Act.
The Other Steve
It certainly does seem that way. With so many Republican cowards running around claiming we must abandon the Constitution, in the pretense of “protecting” it.
The Constitution isn’t just a bunch of guidelines. It’s the supreme law of the land.
If you don’t like it, leave.
Darrell
And FISA gave the NSA general counsel and AG’s office permission to run warrantless surveillance on US persons when they are in contact with foreign suspects since way back in 1993 (and before??)
And all your ignorant droolings (“power drunk fuckhead”) won’t make those facts go away
The Other Steve
Read up on Sen. Dan Burton of Indiana.
He was one of the big cheerleaders behind Vince Foster investigations, even firing bullets into watermelons to prove his blood splatter theory. Oh hell, most of the Republican Congress was off in moonbat land, as evidenced by the entire Whitewater thing.
Shouldn’t you be calling her Hitlery? I mean, that’s so much more clever isn’t it?
And then you forgot about the whole War on Christmas.
Nope, as bad as the left might be at times… they’re nowhere near as bad as the wingnuts.
Darrell
It’s tinfoil hat territory in claiming without basis that the Constitution is being ‘trampled’ by Bush when it’s not
jg
FISA can’t grant anyone permission to wiretap US citizens without warrant. Why would they? They made themselves irrelevant? Don’t think so. If a US citizen is involved you have to get a warrant within 72 hours or you stop listening. Bush doesn’t want to have to get permission. He wants to listen to anyone he wants.
The Other Steve
I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!
You modern Republican clowns probably don’t even know where that comes from. Probably think it’s from Alan Alda’s character in the movie “Murder at 1600”.
Darrell
Specifically what in the FISA approved NSA/DOD directive do you disagree with? It’s in clear english language that the NSA general counsel and AG can approve warrantless monitoring of US persons when communicating with suspected ‘Foreign Powers’, restricted by the ‘reasonableness’ of the surveillance. If you disagree, show something specific which refutes that security directive instead of telling us how you “feel”
jg
First explain why the court that was set up to provide oversight in this case would take themselves out of the loop. Thats what they’re doing if you’re right so explain why the hell they would do that. If you can deomnstrate you didn’t completely misinterpret what you read then I’ll talk to you. Before I take the time to refute your assertion show me that it even makes sense.
Darrell
yeah man, you’re really speaking truth to power. Anyone can see that
Tulkinghorn
More precisely, he wants to listen to anyone he wants, without leaving a paper trail. In the case of an emergency he could always take a few extra weeks, hell even a few extra months, to file for the warrants. It would be a violation of the law, and wheter to impeach him would be a political decision. I don’t see it happening.
Now, instead of seeking to change the law, he simply refuses to follow it. He has promised to disregard the law, and any other laws he finds inconvenient, any time he sees fit in the future. To do this is to exercise the prerogative of a prince.
This makes Bush a bigger threat to the constitution than Al Qaeda. They could kill lots of us, but only we have the power to ruin our civilization.
Darrell
They were very much in the loop in determining what types of surveillance to allow the NSA and AG to approve and in defining who can be monitored. Again, please specifically cite what in that 1993 NSA/DOD directive is wrong and why. Pretending that contradictory facts don’t exist when they’ve been cited is hardly in accordance with a ‘reality based community’
Tulkinghorn
J.C. asked for comment about the ‘signing statements.’
This seems pretty harmless. If the signing statement differs significantly from the plain meaning of the statute, then even Scalia, or perhaps especially Scalia, will not give it any weight.
These signing statements are not new. Last year I used some quotes from a signing statement by Reagan in 1982 in a memo in local court. The language was clearer and even a bit poetic, and more persuasive, than the technical dreck in the House and Senate reports. I cited the reports as well, but Reagan had a more ringing explanation of the intent of the legislation.
If Bush is in effect saying: “I am signing it, but I will not cooperate if I don’t choose to do so”, that is not going to give the solicitor general has to explain this to the court.
jg
Can someone else read the directive Darrell linked to and find anything in their that supports his assertion that FISA gives the NSA and te AG pemission to run warrantless searches? To me it looks like a memo to the DDO of CIA to make sure his sigint people comply with the FISA court. I see no granting of permission to conduct warrantless searches of US citizens.
moflicky
Jolly,
re-read what othersteve said about me, and tell me if my characterization was any more unfair than his of me.
and don’t lie to yourself.
Tulkinghorn
.. this is not going to give him a pass when the solicitor general has to explain this…
jg
Wrong? You mean find what you misinterpreted? Can’t do that either, ain’t in your head. BUT:
8.3 (C) and (D) both say the DDO needs to ensure his people comply with USSID (no giving away of powers there)
and 8.4 (B) (C) and (D) also say that the DDO needs to ensure compliance with USSID.
Section 9 defines a foreign person.
Where’s the part you’re talking about?
Darrell
The President appears to be following the law. Repeatedly claiming otherwise in the face of contradictary facts changes nothing.
That sums up well the position of most leftists posting here. Such deep thinkers
Darrell
Already spelled out and cited in my 12:44 pm post. Can you read?
Darrell
USSID refers to ‘United States Signal Intelligence directive’ which has been cited. No where in the document does it say anything about having to get a warrant to run surveillance on US persons when the target is a foreign power suspect. In fact, the document lays out guidelines which do not include warrants, and then states that it’s up to the NSA general counsel and AG to use ‘reasonableness’ when following those guidelines and definitions
jg
Either its a time zone issue or you full of shit because I don’t see a 12:44 pm post from Darrell.
Is that really you’re only response? You asked me to refute your point. I’m trying to and now you’re blowing me off by referring me to phantom posts?
Tulkinghorn
from the inimitable Pat R:
Sorry Pat, it just does not work that way.
FISA is the law, properly enacted following the procedures laid out in the constitution. Thus, the presumption is that it is constitutional until a case in controversy arises to allow the courts to review it.
It is kinda hard to test whether it is constitutional when it is secret, no? Luckily for us, there are some honest people at DOJ who leaked what they saw as abuses to the press. The latest rumours that Bill Clinton’s conversations with a certain former cabinet officer were picked up in the surveillance indicates how explosive this could be.
Now Bush has been busted, he can show good faith by seeking an advisory opinion ASAP. I am not counting on it. That would not fit in with the whole ‘rule of law not applying to the President’ thingy he has going on.
jg
It says to ensure compliance with USSID. Being compliant means getting a warrant.
Where? I don’t see the word ‘reasonableness’ anywhere on that page.
Darrell
Here is the relevant 1993 USSID
Wow, the AG, not FISA, makes the call as to whether such communications can be used even when there is no foreign power suspects on either end of the communication
jg
And the Attorney General would do that after a warrant was obtained and the information recorded and sent to the AG for review. Nothing you posted says a warrant wasn’t obtained once they realized a US citizen was involved.
In spite of what Condi Rice says, the AG is not the highest legal authroity in the US.
jg
Bush and Cheney both assert that these powers are executive powers that had been restricted for decades and now with the threat of terrorism creating an extreme case they are regaining these powers in spite of the current law. You citing 1993 cases flies in the face of their defense. You’re undercutting it by saying Clinton did it. You’re argument is counter to the argument the people, who you are trying to defend, are making. Yet you think you’re right. You’re saying Bush is within the letter of the law while Bush is saying the law doesn’t apply to him in wartime.
Darrell
It’s all over the document, but not on that particular page. Here is one of many such citations on a searchable USSID
No warrant, just ‘reasonably believed’
Darrell
No where in that document does it state that the AG would do that only as part of a warrant. You made it up. Typical of your side. Facts flying in the face of your BS accusations so you start making up lies. Just like with WP. It’s who you are
Ancient Purple
So, you will ignore the “Phoenix Memo” as it undercuts your argument.
Unless, of course, you are trying to convince us that the FBI Phoenix office paying a visit to the flight school where Zacharis Moussaoui was learning to fly jets was beyond the pale.
Darrell
Tim F/John, why does my 12:44 pm post have ‘awaiting moderation’?
Jolly
Conservatives used to want the government out of their lives. 9/11 terrified them. Now they will tear up the Constitution if W will protect them from the big, bad terrorists. And they want other people’s children to fight the war for them.
Chicken shits.
Tulkinghorn
Jolly-
Since they can’t imagine the administration’s actions harming them in any way, they just can’t care. The is just conservatarianism/authoritarianism in action.
Laws are for the little people (to follow, that is, not to benefit from).
Tulkinghorn
Darrell, don’t be a pissant:
The key word is “inadvertantly.” This clearly means where proper, legal surveillance is done, and an otherwise protected communication is picked up, the protected communication is to be destroyed unless the AG rules otherwise. This is another safe harbor that kicks in when, in good faith, the surveillance finds something useful that they were not supposed to be looking for.
And it only provides an exception to the rule that the communication must be immediately destroyed. It does not mean that the surveillance was legal to begin with, and does not give the AG the power to determine, after the fact, that the surveillance was legal.
Under the constitution the AG does not have that power.
Sorry, you have to go to war with the constitution you have, not the constitution that you want.
Jolly
Yeh, and screw the Constitution.
How pathetic is that? True patriots – hah hah hah.
The Other Steve
It’s not about doing what’s right with conservatives. It’s all about having power.
They hated Big Government when it was doing something for the people. But now that they’ve found ways to siphon our tax dollars off to buy antique comodes for their luxury yachts, they’re all for it.
Pooh
Wow, go to bed, wake up and all hell has broken lose. John S., nice post in response to C(sic).
Has Darrell said anything worth responding to or is he engaging is his usual tendentious threadjacking, quoting and linking to arguments shot down a week ago?
And still no answer to this question – under the Yoo doctrine, what couldn’t the President do in the name of ‘security’?
Tulkinghorn
Yoo don’t want to know.
Darrell
I don’t disagree, but that’s not what your side has been claiming. Bush’s executive order program applies only if the target is a suspected foreign power (defined earlier). A suspected Al queda member’s phone is monitored. A US citizen calls that phone or the Al Queda member calls a US citizen. No warrant is required to monitor that call or to save the conversation in a database.
Actually, such communication as I described involving a US person does not have to be destroyed. To the contrary, as cited above:
moflicky
uh, wasn’t Moussaoui arrested before 9/11? why yes, he was.
I don’t know why the FBI didn’t think it was important to get a warrant for his computer, but other than that…
I guess we should have tortured him for the names of the other 19 hijackers.
oh, yeah. we can’t do that either.
I guess you think this is some kind of smoking gun, even though this story has been out there for almost 4 years….
I also assume you’re implicating the minneapolis FBI offices of complicity and conspiracy with bush to hide the fact that they knew 9/11 was being planned. Or at least bush-style incompetancy.
yawn.
Ancient Purple
Finally! You understand!
Tulkinghorn
As cited above, it can be retained.
This all has to do with what happens after the protected communication is picked up and analyzed. For example, you are working for the NSA. You get a warrant, or within the three day FISA period you wiretap several lines used by a suspected Al Qaeda ‘sleeper cell’ inside the US. Lo and behold, we run across non-targeted non-Al-Qaeda communications that reveals a threat (for example, an unrelated plot by U.S. citizens to bomb the Israeli Embassy).
What do we do?
We can go to FISA and seek a retroactive warrant. This requires a good faith explanation of why you were snooping on a domestic line, but what the hell, the worst the FISA court can do is refuse the retroactive warrant.
What to do if that happens? Go to AG and get waiver (so you do not have to destroy the communication), then put together new investigation and get a regular old warrant like you would for any other situation. No problem, as the USA Patriot act has lots of nice provisions to make this simple and speedy. You may not be able to use this communication to convict the terrorist, but you can certainly take steps to stop the bombing, no?
My point here is that the law you cite is not a license to go surveille anyone we want, on the basis that at least some communications will not require warrants, and we get to pick through the rest to see if we want to keep them, too.
Do I know that this is what the administration is doing? No. The investigations will find that out. That certainly is what the leaks suggest, and I have not heard Bush deny that is what he is doing.
moflicky
I see.
Damn, Bush is good. 6 months into the job, and he’d already fouled the minnesota FBI office.
he must have done it with his mind rays.
The Comish (sic)
[Sigh.]
John S:
A low score from the East German judge? What a shock.
For starters, aQ does appear to have a flag, as do Hizbullah and other terrorist organizations. AQ’s stated, ultimate goal is to re-establish the Caliphate across the Islamic world, by working with allied Islamic extremist groups to overthrow secular or Western-supported regimes. As for what lands they control, they’ve got training camps throughout the world, and were intimately related to the Taliban in Afghanistan, as well as possibly being related to other governments throughout the world.
But naturally, merely having a flag and controlling foreign territory is irrelevant to the question of whether dealing with them relates to the executive power of the Constitution. The question isn’t whether they’re officially recognized states, it’s whether they’re foreign entities (as opposed to domestic). The Constitution makes no distinction — and you’ve not made any argument for any other kind of distinction — between foreign states and foreign powers or foreign subjects of foreign powers.
And is there any doubt that aQ is a foreign terrorist organization? They operate primarily out of the Middle East and lay claim to the Islamic lands of the Middle East, Southern Europe, and even nations extended into the Pacific Ocean. aQ is a foreign entity, and thus subject to the executive power.
(I have no doubt that there are domestic terrorist organizations, although I don’t know what they are. It’s possible that the KKK is a domestic terrorist organization. But that’s irrelevant to the discussion here, and I believe those have always been dealt with through the combination of the Legislature and Executive.)
The argument you should be making is that these wiretaps involved US residents and citizens, and thus were not related to foreign powers. But the response to that is at least two-fold.
First, a foreign power does not cease to be foreign merely because he’s speaking to someone in America (especially if he’s doing so while in a foreign country). Thus, even if the Executive needs to obtain a warrant to use the wiretaps to obtain evidence against the American citizen, the Executive still maintains his power with regard to the foreign subject.
Second, the individuals are not necessarily domestic merely because they’re located in America. For example, the Nazi spies/sabateurs located in America were still under the Executive power (and thus could be tried by military courts) despite being in America (one of whom was an American citizen). See Ex Parte Quirin, 317 U.S. 1 (1942).
Similarly, terrorists on American soil, even if they’re American citizens, are beholden to and under the sway of foreign entities. Accordingly, they are subject to the power of the Executive.
Thanks for the quotes. Unfortunately, all of them talk about the loss of liberty due to war; none of them provide any evidence that this situation amounts to a loss of liberty.
I’m curious: What do you think this means? Do you suppose that Locke and Madison’s proclamation that the Legislative is the “Supreme” or “predominate” power means that whatever the Legislature says is more important than what the other branches say? Why would the Framers bother to set out the powers of each branch, if the Legislature could override those declarations by simple decree?
I can’t help but wonder what the Judiciary — which has the power to declare acts of Congress null and void — would think of your interpretation. I’m guessing they’d borrow a phrase from a familiar source and say that “you don’t have a fucking clue.” (Do I need to cite to the INS case again? How about you just scroll up and see what it says.)
And I — along with every other person in America over the age of 6 — am aware that the Constitution sought to spread the governmental power throughout 3 branches of government (the phrase that’s going to be on the test is “separation of powers”). But how does this jibe with your theory that the Legislature has the Supreme power to override the enumerated powers of the other branches? That’s not exactly separating anything, is it?
Interestingly enough, that’s what the portion of Federalist 51 you’ve quoted is talking about. Madison was not extolling the virtues of giving the Legislature supreme power over the other branches; he was saying that the Legislature is so powerful that it has to be divided into different branches to make sure it doesn’t abuse its power. If you read place your passage in context, it shows how silly and self-defeating your citation to that passage is. First, Madison talks about the necessity of dividing power between the branches so that one branch does not predominate over the others. He continues (emphasis added):
Isn’t that interesting? Apparently, you either didn’t read the whole passage, or you’ve hoped that no one would realize that placing the quote in context defeats your argument.
Oddly enough, a similar thing happens with your Locke quote. Locke isn’t saying that the Legislature should predominate in all things; he’s saying that the nature of a Legislature’s power is inherently greater, and thus much more to be feared. He first points out that the Legislative (power to make laws) and Executive (power to enforce laws) functions are usually separated by governments because laws only need to be made occasionally (so the Legislature only needs to convene occasionally), but the laws need to be enforced constantly (so the Executive needs to be active always). Thus, governments usually divide the Legislative and Executive functions. So he’s not talking about the Executive’s power over foreign affairs (he addresses that later).
And what conclusion does he draw from this fact? Let’s look at the passage after the one you quoted (emphasis altered):
Gee. How interesting that you left that out. Could it be because it once again completely undercuts your supposed argument?
Wow. Is there a stronger word for “hypocrite”? How about “intentionally deceptive”?
I don’t guess that you have an “obnoxious limits” to your knowledge of these works. I’m guessing that you’re just intentionally misrepreseting what they say.
The Comish (sic)
delf, thanks for the comment. Needless to say, my interpretation of Yoo and the relevant laws isn’t authoritative in any way, so I commend you for going directly to the source. That type of intellectual curiosity and involvement speaks well of you.
I’ll have to refresh my recollection on Yoo’s memo, but I can give you my off-the-cuff reaction. I think what you’re talking about is that on the one hand, Yoo seems to be saying that when the Constitution doesn’t specifically grant a power to Congress, Yoo argues Congress doesn’t have that power. But on the other hand, he’s saying that when the Constitution doesn’t specifically take away a power from the Executive, he argues that the Executive has that power. So it looks like he’s arguing in whatever fashion appears to give the Executive the most power. (Please let me know if I’m not understanding correctly.)
I believe the basis for Yoo’s argument on this point is from the different language the Constitution uses to grant powers to the Legislature and Executive.
As I said above, the Framers seemed to think that the Legislature was generally the more powerful branch, and thus more to be feared. So when the Framers wrote the Constitution, they used language granting the Legislature only specifically enumerated powers: “All legislative powers herein granted shall be vested in a Congress of the United States.” (This clause is known as the “vesting clause.”) In other words, the Legislature gets only those powers specifically granted to them in that document, and does not get any other powers. So if the Constitution doesn’t specifically say that Congress has a certain power, then Congress doesn’t have that power.
On the other hand, the vesting clause for the President (in Article II), is different: “The executive Power shall be vested in a President of the United States of America.” So they apparently used much broader language to grant power to the President. The President’s powers need not be specifically set forth in the text of the Constitution (as the Congress’s powers must be); they need only fall under the rubric of “the executive Power” as that phrase was understood.
Yoo argues that this difference in the vesting clauses was intentional and revealing. He interprets this to mean that if there’s a question as to whether the Congress has a power, we should assume that it doesn’t because the Framers were very specific about which powers the Congress gets.
On the other hand, Yoo argues that if there’s a question about whether the President has a power, we should assume that it does because the Framers were very broad, general, and (supposedly) inclusive in what falls under the rubric “the executive Power.”
I don’t necessarily agree with this. He’s got a point insofar as the Framers could have vested in Congress “the legislative Power,” which would arguably be more inclusive. But I think they probably didn’t use that language so that we could tell the difference between the legislative power of the Congress, and the legislative power of the several states. If the Framers had vested in Congress “the legislative Power,” that power would arguably have included the power to legislate purely state matters. So the Framers were merely being careful in trying to set forth only the legislative powers of the national government, while reserving the vast majority of legislative powers for the state legislatures.
A similar argument could be made for the grant of “the executive Power;” in other words, shouldn’t Congress have distinguished between the executive power of the President and the executive powers of the state governors? But I don’t think that’s necessarily true. The executive power is necessarily limited by the power of the legislature. For example, one of the main executive powers is to execute and enforce the laws. The executive power in this regard is limited to executing and enforcing the laws passed by the legislature. So obviously, the limitation on the grant to Congress limits the grant to the President.
So I think Yoo is overreaching when he says that we should assume the President has whatever powers may possibly be vested in the President. I think a better method would be to go to the source materials — the Constitutional debates, the Federalist Papers, etc. — and see what “the executive Power” was understood to mean.
I’m not sure if I’ve answered your concern, but hopefully that helps. Let me know if I’ve totally screwed up. And once again, let me commend you for educating yourself on these matters.
The Comish (sic)
Pooh:
Actually, I have answered this question. But you’d actually have to read one of my posts to figure that out.
If you’re wondering which post, here’s a hint: It’s the post that quotes that question. Just before I answered it.
And keep in mind that the answer may require some measure of honesty with regard to what other people are saying. So if you don’t understand, maybe ask someone who’s not so ideologically committed to arguing that Bush is evil.
JohnTheLibertarian
Hysterical hyperbole. It is a volunteer military. Please come at me with something worthwhile.
JohnTheLibertarian
The libertarian belief system is rather simple: Free Markets, Free Peoples. I don’t see any instances of unchecked executive power in my life, and I certainly don’t see it running roughshod over “any and all” individual rights. Stop to think about what you just said. Any and all individual rights. How silly. Shame on you for such hysterical thinking. And shame on you for pigeon-holing a political philosophy with such a crass and unsubstantiated generalization. Such lazy thinking gives rise to bigotry.
However, what I do see is the Left grabbing hold of yet another non-issue and sprinting as fast as it can toward yet another brick wall. You really must do better than this if you hope to gain seats in ’06.
Baron Elmo
Why does one suspect that the same folks on this thread who so adamantly defend Bush’s right to do whatever he damn well pleases in regard to the law would have hissy fits at the thought of a Democrat president flexing the same muscle?
While we argued the subject, I asked a Republican acquaintance how he felt about, say, President Hillary Clinton inheriting the ability to ignore the law if she so chose… and he ducked the question every time.
Guess he (and Bush apologists in general) are hoping, should this calamity come to pass, that a GOP-led Congress would swiftly swing into action and strip those powers away from Ms. Clinton pronto, all the while wagging their fingers and murmuring, “No, no… those aren’t intended for little Democrats to play with. Now go take your nap.”
Baron Elmo
Just out of curiosity, I’m wondering how many of the Bush defenders on this thread were also supportive of Reagan and company during the Iran/Contra revelations.
After all, weren’t we still embroiled in the Cold War? And wasn’t Ron protecting us all from that ugly Communist threat? Those falling dominoes can do some major damage, y’know…
moflicky
and fall, they did. can’t argue with success.
delf
Comish,
Not sure if you will see this but wanted to thank you for your time. And yes, I think you did answer my question. Sorry not been able to let you know before now. Thanks!!