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You are here: Home / Politics / Executive Power

Executive Power

by John Cole|  January 19, 20062:23 pm| 101 Comments

This post is in: Politics, Republican Stupidity

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Matt Welch has penned and excellent essay explaining why he opposes the confirmation of Alito which is well worth a read, but moreso because it contains this piece of advice for the current Republican party:

A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team’s in charge. Because some other team will be in charge some day, and they will find their own unique opportunities to abuse whatever power they inherit.

When I survey the things the GOP has done over the past few years, from the rule changes castrating the minority party in congress to the assertions of executive privilege and executive authority at the White House, it has become pretty clear that the majority of the current Republican party, as well as the cheerleaders in the media and in the blogosphere, think we have reached the time of permanent Republican majorities.

Man, is November ever going to be a shock to these folks.

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Reader Interactions

101Comments

  1. 1.

    Pooh

    January 19, 2006 at 2:29 pm

    Interesting to see if we all of a sudden start getting terror alerts, or “the Iran question” comes to the forefront. Or we can just do Schiavo again…(wait a minute…)

  2. 2.

    oopla

    January 19, 2006 at 2:47 pm

    The Republican rule of thumb should be, “How would we feel about Hillary Clinton with these powers?”

  3. 3.

    Mr Furious

    January 19, 2006 at 2:49 pm

    I thought you’d like that piece…

    I enjoyed this part:

    The year is 2009. President Hillary Clinton introduces a nationalized healthcare package, which she assembled after conducting a dozen secret meetings in the White House with George Soros, Big Labor, and unknown representatives from industry groups who stand to make a bundle. Judicial Watch files a Freedom of Information Act lawsuit for the minutes of the meetings. Clinton refuses, citing her Executive Privilege to hold private and confidential conversations about most anything she chooses. The case goes to the Supreme Court.

    How would Samuel Alito vote?

    Now, THAT ought to get some heads exploding, or at least give pause…

    This behavior is clearly indicative of a party that really does believe they will be in power forever. The K-Street Project and lots of other “bending of the rules” has been done with that as an end. There’s no way Cheney or the others would ever want a Democratic President to have these powers, so what exactly is up their sleeve? How can they be so sure that power remains where they want it?

  4. 4.

    Dougie

    January 19, 2006 at 2:50 pm

    Is it possible that the Republican Party movers and shakers actually believe that they will always be in power? Perhaps they know something we do not?

  5. 5.

    Doctor Gonzo

    January 19, 2006 at 2:54 pm

    I’ve thought about this scenario a lot lately:

    It’s 2009. Several members of al-Qaeda have staged simultaneous attacks on large shopping malls in the U.S. with bombs and assault weapons. Several hundred people die. President Hillary Clinton invokes executive authority to collect all information on the sale of guns in the country without warrants and proposes emergency executive actions to prevent further attacks like this. Do Republicans agree with the extent of executive power as it is being used by President Clinton?

  6. 6.

    Paul Wartenberg

    January 19, 2006 at 2:56 pm

    Man, is November ever going to be a shock to these folks.

    That depends. Are those unreliable electronic voting machines still being used?

    The real shock would be if the GOP cheats again on Election Day. No actually, scratch that, it’ll be no shock at all.

  7. 7.

    KC

    January 19, 2006 at 3:01 pm

    Man, is November ever going to be a shock to these folks.

    Reps may lose some seats, but there is nothing like some opportunity coming Dems way to help them screw things up. John, I hate to say it, but from the way things look now to me, Reps got little to fear.

  8. 8.

    ET

    January 19, 2006 at 3:01 pm

    I have often wondered along similar lines with yammering about the “nuclear option” and the filibuster.

  9. 9.

    InsultComicDog

    January 19, 2006 at 3:05 pm

    With Diebold on your side, how can you fail?

  10. 10.

    Vladi G

    January 19, 2006 at 3:06 pm

    How would Samuel Alito vote?

    Easy He’d vote the same Scalia, Thomas, and Roberst would vote, which is that executive privilege doesn’t apply in this case. Sure, it runs counter to previous rulings, and sure Alito has been portrayed as one in favor of expansion of executive power, but it’s different when a Democrat is in charge. Alito is in favor of expansion of Republican power, nothing more.

  11. 11.

    The Disenfranchised Voter

    January 19, 2006 at 3:14 pm

    Is it possible that the Republican Party movers and shakers actually believe that they will always be in power? Perhaps they know something we do not?

    I’ve though about this myself.

    And you know, perhaps the two questions you asked are related, if you catch my drift…

  12. 12.

    The Other Steve

    January 19, 2006 at 3:24 pm

    There’s no way Cheney or the others would ever want a Democratic President to have these powers, so what exactly is up their sleeve? How can they be so sure that power remains where they want it?

    Declaring Martial law in October and saying that unfortunately the elections must be delayed.

  13. 13.

    Jorge

    January 19, 2006 at 3:40 pm

    Man, a lot of people are going to wake up one morning in November of 2009 and wonder the heck the Gore/Clark or Clark/Edwards ticket won the election.

  14. 14.

    srv

    January 19, 2006 at 3:42 pm

    Easy He’d vote the same Scalia, Thomas, and Roberst would vote, which is that executive privilege doesn’t apply in this case. Sure, it runs counter to previous rulings, and sure Alito has been portrayed as one in favor of expansion of executive power, but it’s different when a Democrat is in charge. Alito is in favor of expansion of Republican power, nothing more.

    It would seem imperative then that a Dem president would need to push executive powers even farther than GW. That would be the only way to stem executive powers.

  15. 15.

    Lines

    January 19, 2006 at 3:43 pm

    Just to be evil and totally immoral for a second, what if Democrats actually played the votes so that Georgie the Unsound were granted these powers just before his exit from power in 2009? If the deal that Savage and other nutcases believes has happened, and that is that Hillary has already been granted the Presidency in 2008, maybe the Democrats are manipulating the power struggle to maximize the power they will have when she takes the throne?

    Ok, maybe not. I’ll go back to designing my tin-foil hat, my other one kept cutting all the air off from my brine.

  16. 16.

    srv

    January 19, 2006 at 3:44 pm

    Oh, more future powers for Hillary:

    George wants your Google searches

  17. 17.

    Darrell

    January 19, 2006 at 3:58 pm

    I disagree with Matt Welch’s reasoning, which was based on Alito’s wishy washy ‘it depends’ type response to a question from Russ Feingold in which the Senator asked whether Alito agrees that it’s ok for the President to “override what people believe to be a constitutional criminal statute”

    What Welch doesn’t consider is the possible situation of Congress passing a law which interferes with the President’s constitutional authority. Clearly Feingold had in mind the NSA flap in which their is a constitutional power struggle between the executive and legislative branches. If Congress passed a law making it illegal for the President be CIC, would not the Prez be fully within his constitutional authority to flout that law? Of course he would. There are definitely circumstances one could envision in which Congress overreaches its authority

    I’ve heard other people I respect make derogatory comments about Alito which makes me want to hear more specifics about their objections to him as I didn’t follow the hearings that closely. But I think Welch’s argument doesn’t pass muster on this one by a long shot

  18. 18.

    Paddy O'Shea

    January 19, 2006 at 4:04 pm

    You know what is going to sink the Republican’ts this fall? Not Iraq, not wiretapping, not the various exploding deficits, not corruption.

    3 things:

    1) Gas and heating oil prices.
    2) The prescription benefit disaster
    3) The growing awareness that outside of his joining the military, little Trevor won’t be moving out of the house any time soon because he can’t get a good paying job.

    These are the kinds of issues that mean a lot to the same kinds of folks who are swayed by Karl Rove’s Greatest Hits such as gay marriage, the war of Santa Claus, or whether or not Hillary Clinton hates God.

    Lotsa lefties will bemoan the fact that the Dems aren’t hitting Bush hard enough on wiretapping (etc), but that is not where this election is going to be won.

    The Know Nuthin’ classes are hurting right now. But you’ll never hear about stuff like that around here.

  19. 19.

    Pooh

    January 19, 2006 at 4:05 pm

    Darrell, a fair point. But you are assuming that the Prez is the arbiter of the scope of the CiC powers. Which can’t work, because saying a power is limited, and then giving the person who can excercise that power the ability to determine it’s limits effectively removes said limits. Considering that there is plenty in Article I touching on matters military, saying that anything relating to the use of force is the Prez’s is, to put it mildly, a stretch.

  20. 20.

    Darrell

    January 19, 2006 at 4:11 pm

    Darrell, a fair point. But you are assuming that the Prez is the arbiter of the scope of the CiC powers

    I should have been more clear. If the courts hold that a law passed by congress is constitutional, then of course the President must respect that decision. But that’s not what has happened (yet) in the NSA flap, and that certainly wasn’t how Feingold framed to question to Alito

  21. 21.

    DougJ

    January 19, 2006 at 4:12 pm

    If the president does it, it can’t be against the law. The president is the law. End of story.

  22. 22.

    Pooh

    January 19, 2006 at 4:16 pm

    Well, if he thinks the law is unconstitutional, he should veto it.

  23. 23.

    Darrell

    January 19, 2006 at 4:22 pm

    Well, if he thinks the law is unconstitutional, he should veto it.

    That would be true if and only if the law in question passed while the President was in office

  24. 24.

    Steve

    January 19, 2006 at 4:23 pm

    Usually, a person who thinks a law is unconstitutional has to go to court and challenge it. They don’t simply get to break it “until a court declares it constitutional,” or at least if they do decide to break it, they get arrested and end up challenging the law that way.

    If Congress were to try and pass a law that contradicts one of the powers expressly given to the President in the Constitution, sure, there won’t be much debate about that. But nowhere in the Constitution does it say the President has the power to order warrantless wiretaps. The best the Administration can do is argue that it’s an “inherent” power, you know, one of those unenumerated rights that conservatives hate so much when the Supreme Court starts handing them out. It’s a much weaker argument. And the only person who gets to decide what unenumerated powers the President has, obviously, is the President himself.

    The President’s position is “Congress has no power to stop me as long as I am doing something which I believe advances the War on Terror.” That’s a position with no outer boundaries whatsoever aside from the President’s conscience. No checks or balances in sight.

  25. 25.

    Lines

    January 19, 2006 at 4:25 pm

    Who whacked Darrell and had a pinch-hitter brought in under his name?

    Conservatives should be against executive privaledge, stomping on any attempt to give a single person access to the purse strings is a guaranteed way to spend even more than we are now. Having a few hundred men and women arguing over nickles and dimes gives a much better future, I would think

  26. 26.

    Davebo

    January 19, 2006 at 4:31 pm

    If Congress passed a law making it illegal for the President be CIC, would not the Prez be fully within his constitutional authority to flout that law? Of course he would.

    Well Darrell, I can see where one might get that idea, but one would be totally wrong.

    If congress passed a law that was blatantly unconstitutional the president would still have to abide by the law until such time that the Supreme Court ruled the law unconstitutional and struck it down.

    The president can’t just decide on his own “that law is bad so I’m ignoring it” regardless of what Dick has been whispering into Dubya’s ear.

  27. 27.

    Pooh

    January 19, 2006 at 4:40 pm

    Darrell, tangentially, does raise an interesting structural argument – the Supreme Court does not issue advisory opinions, yet this would seem to be a case where such opinions would be valuable. The argument that “I think this law is an unconstitutional constraint on my powers, I want to challenge it, but A) It would take too long, B) I might not have ‘standing’ and C) I might be forced to allege facts that would in fact divulge Nat-Sec. information” has some pull.

  28. 28.

    Darrell

    January 19, 2006 at 4:44 pm

    If congress passed a law that was blatantly unconstitutional the president would still have to abide by the law until such time that the Supreme Court ruled the law unconstitutional and struck it down.

    I believe you are mistaken

  29. 29.

    Steve

    January 19, 2006 at 4:48 pm

    We risk going too far afield with this hypothetical because Congress is not, in fact, going to pass some law that is so blatantly unconstitutional as to violate the express terms of the Constitution. There’s always going to be room for debate.

    To the extent it matters, I think Darrell is correct to the extent that no one, the President included, is legally obligated to follow an unconstitutional law. However, the point is that if you break the law, you do have to face the consequences of being arrested, challenging the law in court, paying the penalty if you lose the case, etc.

    For example, let’s say Congress passes a law that says “anyone who compares Bush to Hitler has to pay a $100 fine.” A sensible law, perhaps, but I assume it’s a pretty obvious First Amendment violation to everyone. But let’s say I do it anyway, I get arrested, and then I successfully argue in court that the law is unconstitutional. Do I still have to pay the $100 fine, on the theory that “you still have to abide by the law until the courts strike it down”? No, not at all, I get off scot-free.

    The problem in our present situation is that the President isn’t conceding that the courts, or anyone else, have the power to determine that he shouldn’t have done what he did. He broke the law in secret and, now that everyone knows, he is claiming that it’s ok as long as the Justice Department says it’s ok. Like I said above, if the President can do this, then there are simply no limits.

  30. 30.

    LITBMueller

    January 19, 2006 at 4:48 pm

    Darrell, you must have gone to the same law school that Alberto Gonzales did, or something.

    Congress passes a bill. The President signs it. It is the LAW, and everyone…..everyone!….is bound to it. Period. Unless it is challenged and declared unconsitutional.

    End of story.

  31. 31.

    Steve

    January 19, 2006 at 4:50 pm

    I had to resort to Google because I got afraid that I, too, had gone to the same law school as Alberto Gonzales. In fact, he is a graduate of Harvard Law School.

  32. 32.

    LITBMueller

    January 19, 2006 at 4:50 pm

    Steve, that is a good point, and that is how laws get challenged by the citizenry. But, to consciously allow a President to decide for himself what laws are and are not constitutional, and then ignore them at will if he so decides, would make the Constiution a worthless document.

    This is not something we should be arguing a President can do.

  33. 33.

    LITBMueller

    January 19, 2006 at 4:51 pm

    Well, somebody better check Harvard’s curriculum!!!! ;)))))

  34. 34.

    Darrell

    January 19, 2006 at 4:53 pm

    Congress passes a bill. The President signs it. It is the LAW, and everyone…..everyone!….is bound to it. Period. Unless it is challenged and declared unconsitutional.

    Where did this goofball come from? Oh yeah, congress passes a law that no one can possess any guns in violation of the 2nd amendment. So then “everyone!” is immediately bound to it no matter how unconstitutional, right? End of story?

  35. 35.

    Lines

    January 19, 2006 at 4:59 pm

    Hey New-Darrell, you’re slipping backwards. Your analogy is a divorce from reality more reminiscent of old-Darrell.

    Unfortunately, the President of the United States does not get to decide which laws he can ignore, even in times of war, which is a stretch of the military exercise we are in. He can petition Congress for war-time powers, but making them up on the spot is more in line with a Dictatorship than a representative republic.

  36. 36.

    Steve

    January 19, 2006 at 4:59 pm

    Well, the point is, you or I don’t have the option to violate the law and get away with it. If we violate the law, we end up in court making our constitutional argument and hoping we win.

    President Bush, on the other hand, knows he faces few, if any, consequences and little accountability. The US Marshals are not going to clap him in irons. So really, he doesn’t need to be “right” on the law, and I have to think Gonzales and the rest know their arguments are a real stretch if it ever came down to it. What the President needs is simply for someone to write him a plausible memo justifying his actions, and then it essentially becomes an issue for the political arena rather than the courts.

    The only way this issue ever gets into the courts, I guess, is if one of the targets of the illegal surveillance brings a claim for damages against the federal officials who carried it out. But of course, since it’s a secret program, that gets a little tricky.

  37. 37.

    Darrell

    January 19, 2006 at 5:03 pm

    So really, he doesn’t need to be “right” on the law, and I have to think Gonzales and the rest know their arguments are a real stretch if it ever came down to it.

    Ignorant conjecture

  38. 38.

    LITBMueller

    January 19, 2006 at 5:05 pm

    Darrell, if you’re going to call me a goofball, don’t follow it up with a retarded analogy concerning the 2nd Amendment, because there has never ever been a definitive statement of what the phrase “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” actuall protects. You can read about it more at FindLaw if you are so inclined.

    But, if you would like a different analogy, try this one: Congress, in a moment of pro-Bush mania, passes a law that makes it illegal for anyone to hold protests of the President within the District of Columbia. Most likely a violation of Article I, right?

    Well, yes, you and I and everyone else are bound to that law, even though it can easily be challenged. And then, when someone is arrested trying to protest on the Capitol steps, they can challenge the law in court and get it declared unconstitutional.

    That is how a system of laws works. Fortunately, the fact that there are an incredible amount of lawmakers, lobbyists, concerned citizens, business interests, etc., all trying to influence legislation at one time, Congress manages to not pass incredibly retarded legislation (most of the time).

  39. 39.

    Pooh

    January 19, 2006 at 5:08 pm

    Steve, you’ve seen this by now haven’t you?

  40. 40.

    Steve

    January 19, 2006 at 5:12 pm

    It’s hardly an ignorant conjecture, Darrell, and I think it unwise tactically for you to lash out at the one person who is sticking up for you. You have surely noted that it’s not a mistake I make very often.

    The reason why my statement is not “ignorant” is that I understand the law and I can see for myself that the Justice Department’s arguments are very attenuated and not well-grounded in the law, although I wouldn’t go so far as to call them legally frivolous. And I think Alberto Gonzales and the other lawyers on the Bush team – tell me if you disagree – are smart lawyers, and thus they most likely realize that their arguments are a long shot.

    Conjecture? Sure. Wrong? Possibly. Ignorant? Hardly.

  41. 41.

    Darrell

    January 19, 2006 at 5:12 pm

    Well, yes, you and I and everyone else are bound to that law, even though it can easily be challenged.

    If it’s an unconstitutional law, then we are not bound to follow it period

  42. 42.

    Paddy O'Shea

    January 19, 2006 at 5:13 pm

    This is fun:

    http://www.ucomics.com/calvinandhobbes/

  43. 43.

    Marcos

    January 19, 2006 at 5:13 pm

    Is it possible that the Republican Party movers and shakers actually believe that they will always be in power? Perhaps they know something we do not?

    Diebold, bitches!

  44. 44.

    Steve

    January 19, 2006 at 5:15 pm

    Sure have, Pooh, but I suspect they face an uphill battle on standing. I guess their best argument is that they’re not sure if their sensitive communications are being eavesdropped on, and that uncertainty in itself creates injury in fact. I think that’s a tough argument to make, but I wish them the best.

    I also can’t help but think that any private lawsuit along these lines is likely to meet the same fate as that Sibel Edmonds case, to wit, dismissed because otherwise we’d have to publicly air all these national security issues.

  45. 45.

    Darrell

    January 19, 2006 at 5:15 pm

    The reason why my statement is not “ignorant” is that I understand the law and I can see for myself that the Justice Department’s arguments are very attenuated and not well-grounded in the law

    You made the statement that Gonzalez “knows” what they are doing is a real stretch without leaving room for doubt. Others with more legal understanding than you disagree with your position. You cannot ‘see for yourself’ something which is not obvious to anyone

  46. 46.

    Pooh

    January 19, 2006 at 5:16 pm

    Considering that the professionals (not Steve and myself, though we agree, but say Orin Kerr, etc.) have come to a general consensus that the justifications are in fact, a stretch, I don’t think the conjecture is exactly ignorant. Gonzales is not a neutral party here, he is acting as an advocate.

  47. 47.

    Steve

    January 19, 2006 at 5:18 pm

    Who are these people with more legal understanding than me, Darrell, and how do you reach that conclusion? Engaging in a little conjecture of your own, are we? :-)

    For the record, no, I do not claim with absolute certainty to know what Gonzales and friends “know.” It’s an educated guess on my part.

  48. 48.

    Darrell

    January 19, 2006 at 5:19 pm

    Considering that the professionals (not Steve and myself, though we agree, but say Orin Kerr, etc.) have come to a general consensus that the justifications are in fact, a stretch, I don’t think the conjecture is exactly ignorant.

    Except that it’s a lie to assert that the “professionals have come to a general consensus” as John Schmidt and Cass Sunstein, certainly not Bush lackeys, among others disagreee.

    It’s dishonest as hell to assert there is consensus on this issue when there is anything but

  49. 49.

    Pooh

    January 19, 2006 at 5:22 pm

    A general consensus. Yes some disagree, but most honest purveyors (by which I mean, ‘not Hinderaker’) that I have seen do not. And Sunstein has been pretty outspoken in denigrating the “Yoo doctrine” of ‘unitary executive’ powers.

  50. 50.

    Darrell

    January 19, 2006 at 5:25 pm

    Sunstein’s position on the Yoo doctrine has little or nothing to do with his support of Bush’s authority regarding NSA surveillance. But thanks for the strawman as you’ve been slapped down on threads before over that issue.

    No consensus. You’re lying when you assert otherwise

  51. 51.

    ppGaz

    January 19, 2006 at 5:29 pm

    If it’s an unconstitutional law, then we are not bound to follow it period

    You think you are not bound to follow a law because you believe it to be unconsitutional?

  52. 52.

    Pooh

    January 19, 2006 at 5:32 pm

    Oops, evil Darrell has returned. I’m done. If you think the Yoo Doctrine and the Gonzales NSA position are not related, good on you, but its just not so.

  53. 53.

    Darrell

    January 19, 2006 at 5:33 pm

    I guess their best argument is that they’re not sure if their sensitive communications are being eavesdropped on, and that uncertainty in itself creates injury in fact. I think that’s a tough argument to make, but I wish them the best.

    Steve, I think you have an ill-informed idea as to what the NSA program involves. The other day you posted that this program can involved domestic only target surveillance. Everything the administration has said, and underscored again today with Cheney’s comments indicates this program is limited to international communications only, which is the opposite of what you posted one or two days ago. Communications coming in or out of the US from an international location.

    Unless you have evidence to the contrary, perhaps your ‘understanding’ of the program leaves something to be desired, no?

  54. 54.

    Ed

    January 19, 2006 at 5:42 pm

    If it’s an unconstitutional law, then we are not bound to follow it period

    Has anyone checked to see if Ted Kaczynski has gone missing?

  55. 55.

    Lines

    January 19, 2006 at 5:43 pm

    The multiple leaks from the NSA say that entirely domestic targets were tapped with no court order. Why do you still believe Cheney or Bush after the many times they’ve told half-truths, misdirections and blatent lies?

    Accepting everything those two say without any foundation is a road to ruination and/or humiliation. No one should have blind obedience to anyone, and to give it to those two after everything they’ve done, well, thats just nuts.

  56. 56.

    Darrell

    January 19, 2006 at 5:45 pm

    Lines Says:

    The multiple leaks from the NSA say that entirely domestic targets were tapped with no court order.

    It would be nice to see links/evidence of that. Especially the part about “entirely domestic” with neither end international. The White House says under this program, 1 end is international

  57. 57.

    Steve

    January 19, 2006 at 5:46 pm

    I really tried hard, Darrell, to explain why you and I weren’t seeing eye-to-eye in that other thread, but I guess it’s still unclear. There is absolutely no inconsistency between the following two statements:

    1) Some U.S. citizens were targets of the surveillance program; and

    2) Only international communications were recorded.

    Do you see why? U.S. citizens do have international communications. And if Bush decides to tape all John Cole’s international calls, then John Cole is the target of the surveillance. You can’t just pretend “oh, whatever international person he happens to be talking to will be considered the ‘target.'” That’s not what “target” means.

    Aside from this, we have the fundamental issue that you are willing to take the Administration’s statements regarding this program as a matter of faith, and I am not. Just because Bush says “trust me, this was a limited program” doesn’t mean that oh well, because the details of the program are secret I guess I have no choice but to believe him. Indeed, there is a very fundamental reason not to believe the Administration’s comments on this program, which is that if the things they were saying were true, it would be an absolute slam dunk for them to get a FISA warrant for each and every call. The fact that they didn’t get a warrant raises the inference that they were doing something they doubted they could get a warrant for, which in my book means they were doing more than taping people who were on the phone with al-Qaeda.

  58. 58.

    Lines

    January 19, 2006 at 5:47 pm

    You know, its almost like Darrell’s medications start wearing off around 5pm EST. What happened Darrell? Don’t like having to back up your baseless assertions and your mindless following of the Bush Doctrine? You were actually engaged in an interesting and rational discussion earlier, do you really need to start lashing out and acting like an ass?

  59. 59.

    Darrell

    January 19, 2006 at 5:51 pm

    And if Bush decides to tape all John Cole’s international calls, then John Cole is the target of the surveillance.

    Except that the WH has claimed that there program is limited to the targeting of foreign enemies, not US citizens. If you have evidence that Bush’s program targets US persons, then produce it. Otherwise you’re just making unsubstantiated claims without basis

    Aside from this, we have the fundamental issue that you are willing to take the Administration’s statements regarding this program as a matter of faith, and I am not

    What you have done is not skepticism, you have specifically accused the President of doing something for which you have no evidence. Do you see the difference?

  60. 60.

    Lines

    January 19, 2006 at 5:53 pm

    Thursday 05 January 2006

    The National Security Agency, the top-secret spy shop that has been secretly eavesdropping on Americans under a plan authorized by President Bush four years ago, destroyed the names of thousands of Americans and US companies it collected on its own volition following 9/11, because the agency feared it would be taken to task by lawmakers for conducting unlawful surveillance on United States citizens without authorization from a court, according to a little known report published in October 2001 and intelligence officials familiar with the NSA’s operations.

    NSA lawyers advised the agency to immediately destroy the names of thousands of American citizens and businesses it collected shortly after 9/11 in its quest to target terrorists in this country. NSA lawyers told the agency that the surveillance was illegal and that it could not share the data it collected with the CIA or other intelligence agencies.

    Its a short hop skip and a jump to come to the conclusion that the illegality of their taps was because domestics were the targets.

    Link

  61. 61.

    Darrell

    January 19, 2006 at 5:54 pm

    What happened Darrell?

    Pooh’s dishonest posts asserting “consensus” rubbed me the wrong way.. then we he threw out the Cass sunstein strawman regarding Yoo he made clear he wasn’t intending to engage in honest debate. That changed the tone of the discussion for me.

  62. 62.

    Bob In Pacifica

    January 19, 2006 at 5:55 pm

    Lines, in designing tin foil hats for underwater purposes, I would suggest slits for gills lined with goretex or a similar material.

  63. 63.

    Darrell

    January 19, 2006 at 5:59 pm

    Its a short hop skip and a jump to come to the conclusion that the illegality of their taps was because domestics were the targets

    More like a leap across the grand canyon using baseless speculation. Your link was to an editorial for chrissakes

    You’ve yet to support your claim in which you said “The multiple leaks from the NSA say that entirely domestic targets were tapped with no court order.”

  64. 64.

    Pooh

    January 19, 2006 at 6:03 pm

    Ok, now that’s bullshit. I honestly think that there is a consensus. That doesn’t mean its UNANIMOUS, that means by and large the discussions I’ve seen, including those notorious lefties at Volokh, think that the administrations justifications are on tenuous legal grounds. Does it make it better if I say that the “majority of those that have weighed in?” It shouldn’t because I’m saying the same thing.

    If you don’t like me or the point I’m making, prove me wrong.

  65. 65.

    Steve

    January 19, 2006 at 6:09 pm

    Until you get the difference between a domestic target and a domestic communication, Darrell, we won’t get anywhere.

  66. 66.

    LITBMueller

    January 19, 2006 at 6:10 pm

    Darrell, here ya go – from the recent NY Times artcile on how the NSA tips lead to dead ends:

    WASHINGTON, Jan. 16 – In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

    But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

    F.B.I. officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.

    As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for the eavesdropping program, which did not seek court warrants, one government official said. Mr. Mueller asked senior administration officials about “whether the program had a proper legal foundation,” but ultimately deferred to Justice Department legal opinions, the official said.

    Satisfied?

  67. 67.

    Darrell

    January 19, 2006 at 6:12 pm

    Steve Says:

    Until you get the difference between a domestic target and a domestic communication, Darrell, we won’t get anywhere

    What are you saying here?

  68. 68.

    Mike

    January 19, 2006 at 6:14 pm

    Oh Pooh, you should know better than that by now. Darrell NEVER attempts to actually *prove* someone wrong, he merely shouts louder and more often.

  69. 69.

    Paddy O'Shea

    January 19, 2006 at 6:17 pm

    Never have so many worked so hard to change the opinion of someone of such little consequence.

    The Darrellian Fact Warp said:

    “Except that the WH claimed that there (sic) program is limited to the targeting of foreign enemies, not US citizens.”

    I wonder how many people actually believe that the White House is a reliable source these days…

  70. 70.

    Darrell

    January 19, 2006 at 6:19 pm

    Pooh Says:

    Ok, now that’s bullshit. I honestly think that there is a consensus.

    Pooh, there haven’t been that many legal minds who have publicly taken a stand on this issue.. and of those who have, at least two heavyweights, neither a Republican, side with Bush having authority to do what he did. On what possible basis can anyone honestly come up with sying there is “consensus” on the issue? No one even knows the details of the program

  71. 71.

    LITBMueller

    January 19, 2006 at 6:19 pm

    Oh, and then there is this: the Administration has claimed that the program authorized was what lead them to catching the Brooklyn Bridge Blow Torcher, Lyman Faris.

    Faris is a US citizen (from Ohio, no less!). If the NSA wanted to start eavesdropping on calls he made, they would have needed a warrant.

  72. 72.

    Darrell

    January 19, 2006 at 6:22 pm

    Faris is a US citizen (from Ohio, no less!). If the NSA wanted to start eavesdropping on calls he made, they would have needed a warrant.

    Faris then would have been in contact with foreign terrorists. What’s your point?

  73. 73.

    Pb

    January 19, 2006 at 6:23 pm

    Paddy O’Shea,

    With your penchant for polling, I’m sure you’ve already seen this, but… the relationship between gas prices and Bush’s approval ratings are still holding, more or less, although I found it a bit surprising that the deep discounts around Christmas didn’t help him more, or sooner.

  74. 74.

    Davebo

    January 19, 2006 at 6:26 pm

    If it’s an unconstitutional law, then we are not bound to follow it period

    You mean like.. say.. The Boland Ammendment?

    Darrell, are you trying to convince people that you fell off the turnip truck yesterday?

  75. 75.

    LITBMueller

    January 19, 2006 at 6:26 pm

    Darrell, c’mon man….If the NSA wanted to specifically “wiretap” Faris’ phone they would have to either apply for a warrant before beginning the tap, or use FISA’s emergency provisions to get one 72 hours after the tap was started.

    That is because Faris is a US citizen. It doesn’t matter who the hell he’s talking to. He is a US citizen and it would be HIS phone calls you are listening in to.

    Hell, if the NSA didn’t get a tap, it would have been really easy to get one since they had more than probable cause based on the interrogation of Kalid Sheikh Mohammed. So why not just fill out the damn paperwork?

  76. 76.

    Birkel

    January 19, 2006 at 6:31 pm

    Yeah,

    Republicans are scared, scared and more scared.

    /faking it

  77. 77.

    Darrell

    January 19, 2006 at 6:32 pm

    Darrell, c’mon man….If the NSA wanted to specifically “wiretap” Faris’ phone they would have to either apply for a warrant before beginning the tap, or use FISA’s emergency provisions to get one 72 hours after the tap was started.

    Under the NSA program, NSA is monitoring a foreign terrorist and notes communications to and from Faris. The President has never needed warrants to monitor foreign enemies. So why should that change just because these foreign enemies are communicating in or out of the US?

    Given the likely volume of data in such NSA sweeps of communication to and from foreign enemies, it may not be feasible to get warrants, even with the 72 hours, whenever such communications goes in or out of the US

  78. 78.

    Darrell

    January 19, 2006 at 6:37 pm

    This thread has changed course. Although I think Matt Welch’s reasoning is off, I’ve heard a number of other reasonable libertarians who don’t like Alito either. I’d be interested to read reasons why not

  79. 79.

    jcricket

    January 19, 2006 at 6:46 pm

    John (to your original point), the problem is that Republicans, having “changed the rules” on what’s OK to claim executive privilege for, or when it’s OK for the federal government to trump states’ rights, etc. will gleefully forget all about it and change the rules back once they’re out of power.

    For example, it’s all fine and good for Republicans to call Chelsea Clinton a dog or worse, but print pictures of the Bush girls actually falling down drunk and you’re “beyond the pale”.

    Or how about stating that Kerry or Murtha are cowards who faked their own wounds? Sounds good to me. Just don’t go asking questions about why GW’s military files are incomplete because that’s denigrating the service of everyone in the National Guard.

    So, when a Democrat retakes the WH (which will happen), all of Cheney and Bush’s WH/executive privilege “rights”, the sanctity of “up/down votes”, the treason of criticizing a president and pretty much everything out of the mouths of the current Republican Congress will just fly out the window, never to be spoken of again.

  80. 80.

    jcricket

    January 19, 2006 at 6:50 pm

    Under the NSA program, NSA is monitoring a foreign terrorist and notes communications to and from Faris. The President has never needed warrants to monitor foreign enemies.

    The problem is that this administration asserts the right to declare anyone, including US citizens to be “enemy combatants (“foreign enemies” in your parlance), with no oversight and/or review.

    From your postings here over the past year you’ve shown yourself to be unwaveringly generous in assuming that the Bush WH has nothing but good intentions, and every interpretation they offer is gospel truth.

    But for the rest of us, the idea that we should just trust the statements of this administration can flies in the face of their actions for the past 6 years. Especially on issues like on whom they are spying and why.

    Historical precedent, if nothing else (see Nixon, Hoover) should give you pause in trusting those in power when they claim to not need oversight.

  81. 81.

    Darrell

    January 19, 2006 at 6:53 pm

    The problem is that this administration asserts the right to declare anyone, including US citizens to be “enemy combatants (“foreign enemies” in your parlance), with no oversight and/or review.

    1. There most definitely is oversight (congressional and judicial) and review

    2. From all information, the NSA program must involve international communication, not strictly domestic

  82. 82.

    Paddy O'Shea

    January 19, 2006 at 7:07 pm

    Raw Story: Justice Dept to declare warrantless wiretaps legal.

    Now there’s a shock. Talk about those with little credibility coming to the aid of those with none …

    http://rawstory.com/news/2005/Justice_Department_to_declare_warrantless_wiretaps_0119.html

  83. 83.

    Darrell

    January 19, 2006 at 7:11 pm

    Raw story is such a credible source too. As usual, you kooks take a rumor (from a very questionable source) and run with it

  84. 84.

    Paddy O'Shea

    January 19, 2006 at 7:13 pm

    The last time the Justice Dept put their credibility on the line like this? Richard Nixon was president and John Mitchell was the chump trying to cover everybody’s ass.

    Deja vu, boo.

  85. 85.

    Paddy O'Shea

    January 19, 2006 at 7:19 pm

    It is not nice to call people mean names, Darrell. Do the nurses know you’re talking like that?

    Are you going to make them get the Doctor again?

  86. 86.

    jcricket

    January 19, 2006 at 7:25 pm

    Darrel – did you go to the site? They have a PDF document from the DOJ. Yes, they sometimes publish rumors, but their track record is probably at least as good as yours. They, however, publish corrections/explanations when they’re wrong.

  87. 87.

    Darrell

    January 19, 2006 at 8:06 pm

    Apologies to Paddy – rawstory did have a pdf link.

    Justice Dept. defends Bush policy – big whoop

  88. 88.

    Paddy O'Shea

    January 19, 2006 at 8:14 pm

    Yo, you want R&B? I got R&B.

    Percy Miracles.

    Phat!

  89. 89.

    W.B. Reeves

    January 19, 2006 at 8:21 pm

    How much time can you waste arguing with an escapee from a turnip truck?

  90. 90.

    AlanDownunder

    January 19, 2006 at 10:38 pm

    Welch’s point is a good one well emphasised by you, John. But I’m not sure that it holds for Alito or Scalia, at least. I don’t think they would approve of Dem executive overreach the way they would approve of GOP executive overreach. For me this makes Alito confirmation even less of a good idea, but some might disagree.

  91. 91.

    Temple Stark

    January 19, 2006 at 10:38 pm

    >>So, when a Democrat retakes the WH (which will happen), all of Cheney and Bush’s WH/executive privilege “rights”, the sanctity of “up/down votes”, the treason of criticizing a president and pretty much everything out of the mouths of the current Republican Congress will just fly out the window, never to be spoken of again.

    It’s the inevitability of this that is so depressing. The hope for national leadership to “get sane” and actually help people seems to be a thing of the past. If it ever existed. I like to think it did.

  92. 92.

    Tulkinghorn

    January 20, 2006 at 1:19 am

    A law duly passed by congress and signed by the president is presumed to be constitutional until a case in controversy gives the courts jurisdiction to review the law’s constitutionality. For certain cases the federal courts will issue an advisory opinion, but the case has to be put in front of the court by someone in any case.

    The FISA law is clearly constitutional, and has not been challenged on this basis in a legally meaningful way.

    If sued, the administration can raise the defense that is is unconstitutional, giving a court the power to issue a ruling on the subject. I expect that may come up given the civil suit that will arise out of the FOIA requests that are comig in.

  93. 93.

    srv

    January 20, 2006 at 1:25 am

    I don’t think they would approve of Dem executive overreach the way they would approve of GOP executive overreach.

    I think Rumsfeld v. Hamdi shows that Scalia isn’t a Unitary Executive nutjob. Thomas and Alito, sure. I just don’t see Bush winning an Article II smack-down.

    FYI, watch the SOTU this year and see how many justices show up. I predict it will only be Roberts.

    For the last 4 SOTU’s, only Breyer (the court secretary) showed up. You’ll never hear that reported though.

  94. 94.

    CaseyL

    January 20, 2006 at 1:39 am

    The hope for national leadership to “get sane” and actually help people seems to be a thing of the past. If it ever existed. I like to think it did.

    I think it depends on how far back you go in defining “the past.”

    When people liken the current political scene to the late 1800s-early 1900s, they’re referring to a time when Congress and the WH were indeed beholden to vested economic interests far more than to ordinary citizens. What we call the plutocrats or kleptocrats today were known as “The Trusts” back then: Big Oil, Big Steel, and Big Banking called the shots. Mark Hanna was the Tom DeLay of his time (in fact, DeLay consciously modeled himself on Hanna).

    I think the post-WWII era, from FDR to Carter (roughly), was an anomalous high point of progressive politics; and I think that was directly due to a synchronicity of many factors never to be duplicated.

    Mass communication (radio, then TV) was a novelty that made politicians visible and accountable as they’d never been before. Immigration and women’s sufferage not only increased the voter population beyond what it had ever been, but also increased the number of voters who demanded political attention to social issues in unprecedented ways. The GI Bill allowed people who had historically been shut out of higher education – laborers, farmers, poor families – to not only get college educations but use their education to take a greater and more effective role in public life. Unionization also played a vital role in putting working class concerns front and center, as did the very early stirrings of the modern civil rights movement.

    So what you had, over a 40 year period, was a massive, unprecedented increase in the numbers, sophistication, and involvement of “ordinary people” in politics. All of them had fresh memories of injustices done directly to them, and their families; this impelled them to force government to be more responsive to ordinary peoples’ concerns.

    That cycle ran its course: constituencies fragmented at the same time the Trusts rebuilt themselves; social issues became less clear cut; and the novelty of involvement gave way to apathy.

    Now we’re back in what is, arguably, “the norm” of a government captured and corrupted by economic interests, which has twisted electoral politics into something profoundly anti-democratic. And the mass communication technologies, which made people more aware of what was going on in politics, have now become simultaneously just one more big interest and a social fragmenter and opiate.

    I don’t see anything duplicating the post-WWII rise and zenith of progressive politics. I do think the cycle of reaction/regression/repression will end, but I think any “new progressivism” will be incremental, not a paradigm shift like it was last time.

  95. 95.

    Jess

    January 20, 2006 at 2:55 am

    Casey L,
    Good summary–thanks for taking the time to post it.

    Darrell,
    I just want to say how much I appreciate your making the effort to discuss the issues rather than just insult people–I’m actually reading your posts now and thinking about the points you’re making instead of just skimming on by them. Much more effective strategy for your team.

  96. 96.

    Pb

    January 20, 2006 at 4:56 am

    Darrell,

    Justice Dept. defends Bush policy – big whoop

    Yes, I’d say the worst thing about the justice dept. nowadays is that we both find that sort of rank partisan behavior entirely unsurprising, coming from them.

  97. 97.

    Paddy O'Shea

    January 20, 2006 at 7:37 am

    Mood of Republicans Worry GOP Activists

    (AP) A growing number of Republican voters are frustrated by congressional spending and scandal, according to GOP leaders from across the country who worry that an “enthusiasm deficit” could cost the party control of Congress in November…

    Separately, private polling for Republicans suggest that govt spending and political fallout from the Iraq war are causing anxiety among GOP voters. Senior party officials inside and outside the White House fear that Washington scandal may hurt GOP turnout if average Republican voters believe that Congress’ spending habits are partly the result of corruption…

    Ten months before the midterm elections, Bush gets a chance to shape the political landscape with his State of the Union address Jan. 31. But there are a few clouds on the horizon that concern Republicans:

    – A debate over immigration reform in Congress that threatens to divide the pro-business wing of the party from the anti-immigration conservatives.

    – A May 15 deadline to sign up for a Bush-backed Medicare prescription drug program that has angered senior citizens, a formidable voting bloc in November.

    – Revised budget deficit estimates are expected soon from the Congressional Budget Office and the White House. Bush will urge Congress to increase the $1.8 trillion debt limit in the next few weeks. These are all reminders that Republican-led Washington is awash in red ink.

    http://www.cbsnews.com/stories/2006/01/20/ap/politics/mainD8F88UP00.shtml

  98. 98.

    Paddy O'Shea

    January 20, 2006 at 7:46 am

    If anyone doesn’t believe the political dynamic has changed in this country over the last year or so, consider this: The U.S. kills a bunch of highly ranked Al Qaeda members in Pakistan, the event is the most highly reported story for an entire news cycle, and Bush’s Rasmussen approval number goes down.

  99. 99.

    Ben

    January 20, 2006 at 10:00 am

    A law duly passed by congress and signed by the president is presumed to be constitutional until a case in controversy gives the courts jurisdiction to review the law’s constitutionality. For certain cases the federal courts will issue an advisory opinion, but the case has to be put in front of the court by someone in any case.

    Not necessarily. There are challenges to laws, called facial challenges, which challenge before the laws go into effect. Pro-choice groups have been using that to get abortion laws unconstitutional before they go into effect. These are still done THROUGH the judiciary. No one can legally just decide to ignore laws that are in effect.

  100. 100.

    Jcricket

    January 20, 2006 at 11:12 am

    These are still done THROUGH the judiciary

    This is the key point. You don’t challenge laws you think are wrong/unconstitutional by just breaking them and telling everyone you plan to keep breaking them.

    Actually, you can, that’s called civil disobedience, and you have to be prepared for the consequences.

    What has happened here is much like what happened at Enron and Worldcom (not the same as Tyco/Adelphia). CEO/CFO announce an aggressive goal or posture. People right below that person who are loyal/afraid of losing their jobs rush to come up with a way to meet that goal. When they can’t find legal/normal routes, they come up with “creative financing”, ignoring any warning signs (i.e. case law, outside legal counsel, etc.) along the way. CEO then says “Great, sign me up. Do it”. Works for a while

    Eventually it falls apart because the “creative” interpretations of the law only work for those already inclined to believe you.

    Same thing’s happening here. Bush wanted to do “whatever it takes” to “win the war on terror”. They try all the normal stuff, sometimes get rebuffed, don’t catch Bin Laden, etc. Bush says, “This isn’t good enough. Why can’t we do X or Y?” Yoo and Gonzalez come up with “creative legal interpretations” to support doing X and Y, ignoring the plain reading of the law, case law, advice of previous counsel, etc. Bush says, “Great. Go do it”.

    And here we are.

  101. 101.

    Zifnab

    January 20, 2006 at 11:47 am

    A May 15 deadline to sign up for a Bush-backed Medicare prescription drug program that has angered senior citizens, a formidable voting bloc in November.

    Revised budget deficit estimates are expected soon from the Congressional Budget Office and the White House. Bush will urge Congress to increase the $1.8 trillion debt limit in the next few weeks. These are all reminders that Republican-led Washington is awash in red ink.

    Neo-cons like to think in the short term. Buy today, pay tommorrow sort of logic. Because, at the end of the day the Republican party isn’t really concerned with the power. They’re concerned with the money.

    Lower taxes, cut “non-essential” spending on education and medicine, overspend like mad, and to hell with the consequences. At the end of the day, you take your profit and you walk off the floor of Congress a very rich man. And you buy a yaht and you move to Bermuda and you forget the country called the USA ever existed.

    Even if our debt were to soar another $8 trillion dollars, Republican politicans and their Big Corp backers aren’t going to be paying for it. It’s Pirate Politics.

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