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Yesterday, I posted The Most Dangerous Branch in which I argued:

The . . . infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."

. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

(emphasis mine.)

In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens.

The Bybee memo, and by extension, the Bush Administration and Republicans, argue that it is the Constitution that grants the President these powers. Of course they also have argued that FISA empowers the Bush Administration to carry out the warrantless surveillance that Bush admitted and defiantly embraced yesterday in his weekly radio address. But this is nonsense - simply dishonest, as Glenn Greenwald and others have demonstrated.

And the Bybee memo, and likely the Yoo memo, that provided the legal justification for the warrantless surveillance, also rely on dishonesty about the Constitution and about Alexander Hamilton and the Federalist Papers. I'll explain below the fold.

For example, the Bybee memo states that:

The President's constitutional power to protect the security of the United States and the lives and saftey of its people must be understood in the light of the Founders' intention to create a federal government "cloathed with all the powers requisite to the complete execution of this trust." The Federalist No. 23.

But what does Federalist 23 actually say?

THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.

This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.

The lie of Bybee and Yoo is obvious. Federalist 23 is not speaking of Presidential power. It is speaking of the power granted the federal government. To cite Federalist 23 as support for a claim of Presidential power over the Congress and the Courts is to flat out lie.

The Bybee memo continues its dishonesty:

The text, structure and history of the Constitution entrusted the President with the primary responsibility, and thus the Power, to ensure the security of the United States in situations of grave and unforeseen emergencies. . . . U.S. Const., Art. 2, [Sections 1 and 2].

What do Article 2, Sections 1 and 2 of the Constitution say?

The executive Power shall be vested in a President of the United States of America. . . . The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

It appears that Yoo and Bybee are not strict textualists on this issue. What Article do they ignore? How about Article 1, Section 8? The powers of the Congress include:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . .

So how can this possibly lead to the Yoo/Bybee assertion of Presidential plenary power? By lying about it. It is that simple. But perhaps Alexander Hamilton and case law will support their case in other writings. I explore that now.

A Supreme Court opinion cited by Yoo/Bybee to support their assertions of plenary Presidential power is The Prize Cases, decided in 1863. To Yoo/Bybee, the Prize Cases stand for the proposition that the President has unfettered power to act to defend the security of the Nation. But what did the Prize Cases actually say? The Prize Cases involved the seizure of certain vessels who tried to defy the blockade of the South declared by President Lincoln prior to the formal declarations by Congress of an insurrection. Subsequently, four months later, Congress did make such declaration. So does this buttress Yoo/Bybee's point? Let's see:

By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States.

If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be "unilateral." . . . This greatest of civil wars was not gradually developed by [p669] popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

. . . Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."

. . . If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States. [p671]

. . . On this first question, therefore, we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion which neutrals are bound to regard.

If this is support for the Yoo/Bybee view, I don't see it. Lincoln took up arms, via blockade, against the insurrection, formal and declared, of the Southern states. What that has to do with the matters at hand is not clear at all to me. Moreover, Congressional acts are cited as authority for the President's actions. Surely this does not argue for unfettered Presidential Commander in Chief power. In essence, the Prize Cases, the Apollon case and others cited by Yoo/Bybee relate to the President's ability to act in defense of the country when the country is attacked. Think Pearl Harbor. The question of waiting days or weeks for Congressional action to act in defense of the Nation is what those cases were about. If Bush were to have acted to stop the 9/11 attacks without Congressional authorization then the analogy would hold. But unless Bush is acting in ways to stop specific attacks that are imminent and by known parties now, then these analogies do not hold. What Yoo/Bybee argue for is that the President can turn the country into a police state by invoking Commander in Chief powers. And this is simply ludicrous.

While Yoo/Bybee cite the Framers, Hamilton and the Federalist Papers, it is obvious that that Hamilton and the Federalist Papers destroy their arguments. For example, in Federalist 24, Hamilton wrote:

A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.

If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

So much for plenary power of the Executive. Hamilton write Federalist 24 precisely to rebut the very claims Yoo/Bybee now make as to the unfettered power of the President as Commander in Chief. This is the dispositive proof that Yoo/Bybee are merely lying.

And what of Federalist 26 Here, Hamilton allays the fears of an American monarchy:

It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these States have in general sprung.

In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.''

In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.

Mr. Yoo, Mr. Bybee, may I introduce you to Mr. Alexander Hamilton.

Yesterday, Senator Russ Feingold said:

The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.

Senator Feingold, Alexander Hamilton agrees with you.

Originally posted to Daily Kos on Sun Dec 18, 2005 at 11:10 AM PST.

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Comment Preferences

  •  at the risk of over-simplication (4.00)
    of your excellent analysis: "Well, thus much for a government so small "you can drown it in a bath tub!"
    •  There is nothing "small government" (4.00)
      about these people.  They hide behind that and are creating a monstor.  It must be stopped.
    •  Seattle Times headlines spins for Bush (4.00)
      Here is a letter I wrote the Seattle Times in disgust when they put this on the front page of Sundays paper: "Bush comes out swinging for spying program."

      The President of the United States is guilty of breaking the constitution by authorizing illegal spying on American citizens without prior approval from the judicial branch, and the Seattle Times chooses to spin this Bush's way with a front page headline that reads: "Bush comes out swinging for spying program." For Christ's sake, it makes him sound like a baseball hero who just hit off a walk-off homerun!

      How could you miss the mark so badly with this headline? Bush is guilty of a crime way worse than Clinton's alleged lying about sex under oath, and yet here is the Seattle Times conveniently printing White House spin about this latest crime.

      What the headline writer fails to understand is that it would have been insanely easy for Bush to follow the 1978 law and get a court order for these wiretaps. There is a special branch of the judiciary designed to act with utmost speed in granting these wiretaps. And yet Bush in his supreme arrogance chose to ignore the law and make his own rules. This is an impeachable offense.

      As an excuse, Bush is using the fact his staff wrote a memo saying that since we were "at war", he had expansive powers to do whatever he wanted to do. As long as we stayed "at war", this power would continue unchecked.

      Bush wrote himself the ultimate get-out-of-jail-free card, and when he has the supreme arrogance to try and use this self-written excuse, the Seattle Times headline writers go right along with him and spout his spin.

      This "at war" argument is wrong on so many fronts that I don't know where to begin. Let's start with the fact that only Congress can declare war. When I last checked, they had not done so. Then there is the fact that this so called war is not on a specific nation or a specific people, it is a "war on terrorism." How can you have a war on a tactic? It isn't possible. Finally, by its very nature, this war could last forever. As long as there is one person committing a terrorist act in the world, the President could claim that we were still "at war."

      This means Bush is granting himself unbridled power to break the law for as long as he damn well feels like it. This is insane. This is so anti-American it isn't even funny.

      The longer Bush is president, the more it appears this country has been taken over by a radical administration that has no respect for the rules and regulations of our society. Bedrock principles this country was founded on are being thrown away like yesterdays trash. Does the president really respect the Constitution, or is it simply a piece of paper to him?

      If this administration doesn't respect the core principles of the United States -- the right to privacy for one -- what is to keep them from doing exactly what they want, when they want?  

      With the documented process of "rendition", they have already proven that they are willing to "disappear" people, with the CIA acting as judge, jury and executioner.


      Oval Treehouse: "GROWNUPS STAY OUT!" -- GW Bush

      by Bailey Savings and Loan on Sun Dec 18, 2005 at 01:00:36 PM PST

      [ Parent ]

      •  Kudos (none)
        Kudos for your letter and your righteous, well-placed indignation. I will be surprised, however, if you later post that your long and rambling letter was published by the Seattle Times. It was too long and too unfocused.

        Notice as you read your newspapers and periodicals that most published LTE's (Letters to the Editor) are less than ten sentences in length, clearly focus on a single topic and conclude with a single, slam-dunk statement in the final sentence.

        In your LTE, you begin in your first sentence by raging about presidential misconduct and also raging about inept, biased headline writers who work for the Seattle Times. Right off the bat, you commit the cardinal sin of not focusing squarely on one issue. One issue, in this case, is not the cause of the other or even remotely connected. Therefore, you need to address them separately to be most effective in presenting your side of opinion and gaining the greatest chance of having your opinion published.

        While I enjoyed and wholeheartedly agreed with the sentiments you expressed in your letter, I also realized your LTE would likely not see the light of widespread circulation.

        If you re-read your concluding sentence, you will see that not only did you not conclude with a slam-dunk summation of your preceding sentences, you actually introduced yet a third topic to further muddle the point of your LTE.

        I am not posting this to embarrass or discourage you. I am posting to encourage you to practice your LTE technique. You have a great deal of good to say and your opinions should be heard. To be heard, though, you have to know just the right way to say it.  

        •  I didn't write to get published (none)
          I didn't write this letter to get published. I wrote it, and sent copies to entire editorial staff, to influence their future writing. I wrote the entire thing in about 30 minutes and didn't sit on it, which is one reason for the length. I wanted this one to come hot off my anger.

          Many times I see the results of my unpublished letters in future editorials or possibly in political cartoons. There are many ways to influence your local media. Tailoring your letters for publication isn't the only way.

          I appreciate your criticism, but I think the varied ideas I talk about - presidential abuse, the press printing spin, and the worst of the bunch, rendition - are all part of the same mess. They are interrelated. Sometimes the only way to make the connection is to come right out and print them together. This causes people to think.

          All that being said, your criticism is most likely right on, because nobody else responded, and I also took up a large chunk of space and used blockquote of something that wasn't actually published, which probably makes me closer to a hack than I would like to think. So thanks for the comments.

          Oval Treehouse: "GROWNUPS STAY OUT!" -- GW Bush

          by Bailey Savings and Loan on Sun Dec 18, 2005 at 03:45:09 PM PST

          [ Parent ]

  •  And read about how Feingold nailed... (4.00)
    ...Abu Gonzales during his confirmation hearings in this diary.

    He specifically questioned him on the issue of presidents violating criminal law.

    •  Condi too (4.00)
      Not only Abu Gonzales,

      but Condi rice was the national security adviser (aka, the gal in charge of spying).

      Condi now tries to play coy and pretend she has nothing to do with it. Sorry, she is knee deep in this illegal activity.

  •  great piece, armando (4.00)
    the fact that the constitution grants Congress, not the president, the power to declare war undercuts the idea that the President has plenary authority to protect this nation. If he DID have such plenary authority, wouldn't HE have the power to declare war--which is, i think, the most important aspect of national defense?
    •  Or to form an Army (4.00)
      even in peacetime.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 11:30:07 AM PST

      [ Parent ]

      •  Mr. Jay and Mr. Madison (none)
        .....thank you for your efforts to raise contemporary awareness of the arguments presented by their esteemed colleague, Mr. Hamilton.

        Well done, good sir!

      •  Their disingenous citing of Hamilton (4.00)
        is ironic on so many levels.  Hamilton had an exalted sense of honor and duty.  Who represents the honor of the GOP?  Delay, Abramhoff, Norquist, and the torture advocates: Bush, Cheney, Yoo, and Rumsfeld.  And they've made it perfectly clear that their duty is to themselves alone.  

        Chernow's biography of Hamilton made me a huge fan.  How dare they speak of Hamilton.

        Are we still routinely torturing helpless prisoners, and if so, does it feel right that we as American citizens are not outraged by the practice? -Al Gore

        by soyinkafan on Sun Dec 18, 2005 at 12:41:31 PM PST

        [ Parent ]

      •  Armando... (none)
        Your knowledge of legal matters is far greater than mine, obviously, but I recall that Supreme Court rulings as recent as WWII have upheld the premise that the commander in chief has broad powers in war time. Wasn't the internment of Japanese here based on that view? I am being a devil's advocate here, but I want to know what precedents Bushco would argue their case upon.
        •  No (4.00)
          Korematsu was not a question of Presidential power:

          In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that

          ". . . whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $ 5,000 or to imprisonment for not more than one year, or both, for each offense."

          Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. . . ."

          One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, 320 U.S. 81, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

          The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

          In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

          It was a shameful decision, but not relevant to the issue at hand.

          The SCOTUS is extraordinary.

          by Armando on Sun Dec 18, 2005 at 01:27:28 PM PST

          [ Parent ]

        •  The Yamamoto decision rested on the (none)
          presence of congressional legislation that FDR could rely on in issuing his executive order interning the Japanese.

          The Youngstown Steel Seizure case opinions of the Supreme Court make it clear that, even in wartime, the president can do practically nothing in defiance of congressional legislation, as is the case here.  (Truman's seizure of the steel mills occurred during the Korean War, and was supposedly based on his war powers.)

        •  Internment of the Japanese (none)
          That won't hold water since this internment was later ruled illegal. In fact Roosevelt flat out violated the Constitution. Reparations have been since paid to Japanese families that suffered this horrific injustice. For Bu$h to reach for this sorry precedent is like a German Chancellor reaching for the Nurenburg laws to justify the arrest of every Arab in her country because she felt like it. The sorry truth is Bu$h and his fascist gang use every disaster as an excuse to gather more and more power to themselves and NOBODY is saying ENOUGH already STOP!!

          "It's better to die on your feet then live on your knees"

          by Blutodog on Sun Dec 18, 2005 at 02:53:46 PM PST

          [ Parent ]

          •  No it wasn't (none)
            Korematsu was the case.

            Look it ws shameful. A blot on FDR and the Nation.

            But let's stick to the facts please.

            Veides, the issue is PResidential power. FDR acted pursuant to a Congressional act.

            The SCOTUS is extraordinary.

            by Armando on Sun Dec 18, 2005 at 03:05:46 PM PST

            [ Parent ]

            •  FDR (none)
              Nevertheless, what FDR did was a disgrace. Did he put people with German or Italian lineage in camps? He allowed these people ( the Japanese) to be put into camps and many of them were American citizens. They had to sell everything they owned at fire sale prices and most of them never recovered emotionally or finanically. The other FDR disgrace was his turning a blind eye to the holocaust when from 1942 on her knew in great detail what the Germans were doing. He could have bombed the camps and the railways leading to them and he did nothing. To add insult to injury after the war the US blocked most of the refugees of that mass murder from entering America while instead we let thousands upon thousands of Nazi war criminals in. We also embargoed the new state of Israel in 1948 not allowing any American companies from selling arms to this new state. To be blunt America was only slightly less racist and anti-semitic at the end of WW2 then before it started.

              "It's better to die on your feet then live on your knees"

              by Blutodog on Sun Dec 18, 2005 at 06:11:07 PM PST

              [ Parent ]

    •  The Federalist Papers are the key (none)
      They make crystal clear just how contrary to the Constitution is Bush's "theory" of unlimited Executive power.

      Great work, Armando.  Glenn Greenwald had another superb post yesterday on this which used very compelling excerpts from the Federalist Papers (from different sections than the ones you used) to show just how foreign to our Republic is the concept of an all-powerful executive who, as Bush claims he is, above the law.

      Your post, and his, together, should be read by every American.  I can't believe there is anyone who wouldn't see then - and really feel - what a true threat this crowd is to our most basic liberties.

      •  Absolute power or delegated war powers? (none)
        Is Bush exerting absolute unchecked Executive Power, or is he saying that once Congress Acts to basically declare war (the Iraq Resolution) then Congress and Courts can not interfere with his operational conduct of the war as Commander in Chief?

        I disagree totally with Bush's policy decisions and with his legal views of executive power, but isn't the issue a little more nuanced than what is being portrayed here?

        •  It's the same thing (none)
          Is Bush exerting absolute unchecked Executive Power, or is he saying that once Congress Acts to basically declare war (the Iraq Resolution) then Congress and Courts can not interfere with his operational conduct of the war as Commander in Chief?

          First of all, none of this has anything to do with Iraq.  We are talking about warantless surveillance of suspected terrorists.

          Secondly, even with regard to terrorism generally, no war has ever been declared, something only Congress can do under Art II of the Constitution.

          Thirdly, the argument that you say Bush is making IS the same as unchecked Executive power.  Under the Yoo Memorandum, they believe that the Constitutions inherently vests the Executive Branch with UNLIMITED power to do anything with respect to "war," which they believe includes everything from domestic intelligence to detention of American citizens.  

          They think they even have the right to VIOLATE Congressional statutes - meaning the law. That's what they did with FISA.

          It is all explained perfectly in the Greenwald post I cited and in Armando's first post.

          How is that any different than unfettered Executive power?

          •  Congressional abdication (none)
            You claim "none of this has anything to do with Iraq" and "How is that [Greewald analysis] any different than unfettered Executive Power".

            Unfortunately, the root cause is Iraq and this has everything to do with Bush's view of Iraq and how he feels authorized by BOTH Congress and the Constitution to wage the "war on terrorism". Like it or not, fundmaentally differnet things, such as Iraq, the "war on terrorism", domestic spying, military/civilian, domestic/foreign and Executive "commander in chief" powers all have been conflated.

            On the war side of things, is there no functional distinction at all between the legislative power to declare and fund war and the exectuive power to conduct it?

            It is not a "lie" to argue the Bush interpretation. I vehemently reject that interpretation, but it is not a lie.

            Congress has abdicated in the exercise of its war powers, via broad and standardless delegation, and has conducted no oversight role to check the Executive. Congress granted Bush the power "as he determines to be necessary" and the relevant UN Resolutions and US law broadly authorize "all means necessary".

            This cowardly legislative behavior has enabled the Bush perverted notion of Executive Power (which was KNOWN to Congress at the time of passage of the blank check Iraq Resolution, and reinforced by Kerry during the campaign).

            See the Iraq Resolution:

            (a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
            (1) defend the national security of the United States against the continuing threat posed by Iraq; and
            (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.


            •  Started before the Iraq war. (none)
              This NSA spying program started in 2002, i.e., before our invasion of Iraq.
              •  Gotcha chronology is BS (none)
                The Yoo memo,the source, was 9/25/01.

                Bybee wasn't until 8/1/02.

                Iraq War resolution was adopted by Congress on 10/10/02.

                Obviously I know that all these events started before the Iraq invasion of 3/03.

                I don't know when the NSA spying program began, but I would hazard a guess that it too was rooted in 9/11 and legally or politically authorized by Yoo's views of exectutive power.

                Obviously, not every fact necessary to support an argument can be written in a reply post. Please ease up on the gotcha crap, and try to stick to the point I was trying to make.

                We DON"T NEED constitutional scholarship and legal exegis of questionable validity.

                We need plitical push back - simple message to the america people that their government is spying on them is enough - no need for federalist papers and legal hair splitting.

                This is a perfect illustration of one reason why we are losing so badly politically - taking on the wrong fight, on the wrong issues, with the wrong abstract language, analysis and no message or political strategy connected to real people.

                •  What bullshit (4.00)
                  You are the person who brought up the IWR.

                  This tangent is yours and yours alone.

                  The questionable material being presented here is all yours.

                  You need to back off.

                  The SCOTUS is extraordinary.

                  by Armando on Sun Dec 18, 2005 at 02:42:50 PM PST

                  [ Parent ]

                  •  Why does Bush link Iraq and 9/11? (none)
                    You demand that I "Back off" - "retreat"?

                    Why is your language so hostile?

                    I could have brought in the National Security Strategy document or the PNAC, just as well as the IWR - its all a seemless web of wingnut paranoid imperial power, and every bit of it enabled or endorsed by Congressional D's or Kerry.

                    Until that perspective is brought out by progressives, there will be no change within the democratic party.

                    It is just as dishonest and hypocritical to bitch about this long after the Executive horse has left the Constutional barn, as for the NY Times to hold stories till after the election and publish the night before the Patriot Act vote.

                    •  I was playing off of your (none)
                      demand that people back off of the "gotcha" game.

                      You brought Iraq into the discussion. You have been called on it.

                      The language is merely as harsh as your own.

                      As often happens, people like to dish it out but don't like it coming back at them.

                      You simply intorduced a red herring with the IWR and you were called on it.

                      So stop telling others to back off when you are the one introducing nonsequitors.

                      The SCOTUS is extraordinary.

                      by Armando on Sun Dec 18, 2005 at 04:11:58 PM PST

                      [ Parent ]

                •  You wrote (none)
                  "Unfortunately, the root cause is Iraq "

                  so it is you who has introduced the bullshit here.

                  The SCOTUS is extraordinary.

                  by Armando on Sun Dec 18, 2005 at 02:44:27 PM PST

                  [ Parent ]

            •  Bogus argument Civil Soceity (none)
              Unfortunately, the root cause is Iraq and this has everything to do with Bush's view of Iraq and how he feels authorized by BOTH Congress and the Constitution to wage the "war on terrorism".

              "The root cause is Iraq"???!!! How can you possibly say that. The root cause was 9/11, which had absolutely nothing to do with Iraq. These illegal wiretaps had nothing to do with Iraq.

              Oval Treehouse: "GROWNUPS STAY OUT!" -- GW Bush

              by Bailey Savings and Loan on Sun Dec 18, 2005 at 01:34:29 PM PST

              [ Parent ]

            •  That refutes your argument (none)
              Iraq is what the resolution is about.

              Domestic surveillance is not in any way supported by the resolution.

              You rebut yourself.

              The SCOTUS is extraordinary.

              by Armando on Sun Dec 18, 2005 at 01:34:40 PM PST

              [ Parent ]

              •  The ROOT is Yoo memo (none)
                The source is of these radical views of Executive war powers is the Yoo memo of 9/25/01. Obviously, this was written in response to 9/11, but, like Iraq invasion, is was teed up and  ready to go. 9/11 became the pretext for radical neo-con ideologues to implement their program. Obviously, I know the difference between 9/11 and Iraq, but Bush has "conflated" them - read what I write before you criticize.

                Worse, all the constitutional theoretical whining completely misplaces the source of the problem, and thus the remedy.

                WE have a political problem here, not a legal one. The solutions are political, not legal.

                If D's were engaged (as I said, Kerry explicitly ratified the Bush theory of executive power during the campaign), then their opposition would have created conditions to engage the media and  american  people, and thus sufficient leverage for congressional oversight to push back and limit Bush abuses.

                This is not only a problem in the Iraq ware resoltuon, but in continuing appropraitions, and in the Senate who, with D support, confirmed an AG and Chief justice who share these same radical views of executive power.

                The D's. just liek teh NY Times, are complicit, and they need to fess up, not demagogue this thing. ADN little progress can be made if progressives ignore the real issues and enable this shit.


                •  Exactly (none)
                  As long as Congress funds the war in Iraq, the pResident has full war power authority, and that includes domestic spying.  The fact that it was being done before the Iraq invasion makes no difference now.  Once 9/11 happened, this crew has been working under the context of us being attacked first and all that the USC provides under that scenario.

                  Embrace diversity. Not everyone is intelligent.

                  by FLDemJax on Sun Dec 18, 2005 at 02:07:39 PM PST

                  [ Parent ]

                •  Read what I write (none)
                  Exactly what I say to you.

                  The Yoo memo is the source - exactly what I wrote. Not the FISA nonsense. Not the Iraq War Resolution, as you previosly asserted.

                  Finally - psssst, this is a political polemic, using the Federalist Papers and legal resources.

                  It is not "not political" because of this.

                  You need to head into full retreat on this one.

                  You just missed the whole thing.

                  The SCOTUS is extraordinary.

                  by Armando on Sun Dec 18, 2005 at 02:07:58 PM PST

                  [ Parent ]

        •  once Congress Acts to basically declare war (none)
          Considering how the administration belittles legislators who say "i voted to authorize action, but i oppose this particular action", i'd say that's exactly what they mean. They seem to confuse the authorization to act in a particular instance with the broad "rule by decree" authorization, which has not been given.
    •  Responding to invasion/attack (none)

      I believe here that the Bushies and their foreign-born, police-state loving "advisors" (YOO) are trying to conflate the 9/11 attack into a full-on attack on our nation by the "terrorist enemy" and thus try to sidestep the facts that Armando provides in this, as usual, excellent posting.  This is why they have tried to define it as a war.  A war that can never end because it cannot really be won.  Thus, they see a way to (try to) obtain never-ending Presidential power to respond to a specific attack on our nation without the need of Congressional action.

      This is why Bush goes very much out of his way, again and again over the years, of specifically claiming to be "a war President".  This is a mantra, this is a talisman, this is the heart and doul of the Admin's attempts to secure permanent power to enact anything, do anything, all under an umbrella of having to act in an ongoing war.

      The problem is that this is NOT a war.  It is no more a war than is the "war on drugs".  It is nothing more than a law enforcement issue backed up from time to time with military operations, only as appropriate.  Afghanistan was an appropriate use of the military in this law enforcement issue.  Iraq was a gross abuse of the military for something that had nothing to do with anything.  MOST of the heavy lifting has been done by law enforcement, all over the world and in cooperation with law enforcement of other countries, allies or not.

      The Congress and through them and the lying of the Administration, the People, have allowed the Bushies to totally mischaracterize this entire program as an issue of war rather than an issue of law enforcement.  As a matter of fact, the original points by Kerry were absolutely correct - and he was ridiculed for them by the GOP machine - this IS an issue primarily for law enforcement.

      Bush needs to have the actual words of the Constitution AND the Federalist Papers shoved into his face (even though they're just goddamned pieces of paper! to paraphrase Bush) loudly and clearly.  No more mixmastering the actual words and intent.  No more denegrating the documents as mere pieces of paper when they are shown NOT to support his political agenda (which is ALL this is about) but as holy writ when they can be butchered to support his political agenda.

      No more.  Impeach.

      "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

      by praedor on Mon Dec 19, 2005 at 06:14:55 AM PST

      [ Parent ]

  •  Well done Armando. (4.00)
    So this is why Kos lets you hang around?

    Well, it's good to have someone with your insite as the country stares down the barrel of a full blown constitutional crisis.

    Fight the good fight Armando.  Here's to Hamilton!

  •  Any chance... (none)
    ... you could put more of that "below the fold"?

    I just turned on the ads, just for the hell of it, and, well, let's say I had to scroll... and scroll... and...

    Them government boys had something so damn secret, they had to hide it in the desert sand...

    by Page van der Linden on Sun Dec 18, 2005 at 11:20:18 AM PST

  •  Armando (4.00)
    Is this going to be on the final?

    There is nothing more stimulating than a case where everything goes against you. -- Sherlock Holmes

    by Carnacki on Sun Dec 18, 2005 at 11:21:40 AM PST

  •  Phone your Congress people tomorrow. (4.00)
    Let them know what you think of King George's actions.

    Also use this diary by smintheus to prepare for your call. (Nice work!)

    I'll be taking an hour or so from work to make this happen.

    Very nice work Armando!

    despot : 1. A master; an absolute or irresponsible ruler or sovereign. 2. One who rules regardless of a constitution or laws; a tyrant.

    by wrights on Sun Dec 18, 2005 at 11:24:06 AM PST

  •  Two stray thoughts... (4.00)
    1. While the Federalist Papers are useful for discerning the intent of the founders, nothing about them is legally binding.  For Bybee to invoke them to justify shredding the Constitution is the worst sort of sophistry.  (Do I even need to comment on the paradox that those who invoke the intent of the founders blatantly disregard the clearest statements of that intent?)

    2. The most dangerous branch is any one that is under the control of the Republican Party...

    Of course, neither of these thoughts are as helpful as Armando's analysis...

    "...the big trouble with dumb bastards is that they are too dumb to believe there is such a thing as being smart." -- Kurt Vonnegut, Jr.

    by Roddy McCorley on Sun Dec 18, 2005 at 11:26:42 AM PST

    •  Strict Constructionists Only When Convenient (4.00)
      Last I heard, weren't W and his Bush League minions the same folks who despised "judicial activists" for extracting an unenumerated "penumbral" right to privacy from the Constitution?

      When is it proper for the Executive branch to mine the Constitution for "unenumerated" powers yet improper for the Judicial branch to find "unenumerated rights?"  For that matter, what about the 10th Amendment?

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
      The 10th Amendment allows unenumerated rights and powers for the States or the people but NOT FOR THE FEDERAL GOVERNMENT!
  •  And because of fear we let them pass (4.00)
    and it takes a while before we start noticing what they've done... and they know the fear will work because they've used it so many times before...

    An example from the 50's

    "This death sentence is not surprising. It had to be. There had to be a Rosenberg Case because there had to be an intensification of the hysteria in America to make the Korean War acceptable to the American people. There had to be a hysteria and a fear sent through America in order to get increased war budgets. And there had to be a dagger thrust in the heart of the left to tell them that you are no longer gonna give five years for a Smith Act prosecution or one year for Contempt of Court, but we're gonna kill ya!

    Julius Rosenberg, as quoted by his attorney, Emanuel Bloch, September 22, 1953.

    Behold the turtle. He only makes progress when he sticks his neck out. -James Bryant Conant

    by crkrjx on Sun Dec 18, 2005 at 11:26:45 AM PST

  •  very well explained (4.00)
    their argument doesn't make any sense.  As all americans should have learned in grade school social studies classes, the Founding Fathers were most concerned about tyrant kings.  That's what made them pissed off enough to revolt in the first place.

    The idea that a president can overstep the written law just because the country faces some kind of danger has no basis.  The country always faces some kind of danger.  The law is the law, and if the law is not adequate, there are methods to change it.  Bush claiming that he is allowed to ignore those methods is outrageous.

    although it's getting late, you still have plenty of time

    by maracuja on Sun Dec 18, 2005 at 11:27:19 AM PST

    •  Funny (none)
      Social studies? Americans? That's pinko talk right? Is the Constitution still required study in high school these days? We seem to be running on the Cliff-notes version of it that W skimmed thru the morning before finals.

      Can anyone tell me why my American flag was made in China?

      by Skid on Sun Dec 18, 2005 at 11:45:17 AM PST

      [ Parent ]

      •  yeah... well... (none)
        that's why I said "should have"...

        At this point they probably just tell the kids to support whoever stands in front of a big flag, because America is great & we need to be "patriots" by following orders.

        although it's getting late, you still have plenty of time

        by maracuja on Sun Dec 18, 2005 at 11:55:47 AM PST

        [ Parent ]

  •  Armando - (none)
    brilliant as always.  It's wonderful not to have to leave the house to attend school.  Thanks.

    "He that sees but does not bear witness, be accursed" Book of Jubilees

    by Lying eyes on Sun Dec 18, 2005 at 11:29:03 AM PST

  •  Here's another lengthy view (none)
    This post compares what prez said compared to legal documents, such as the constitution:

    It was as fun & informative as this one.

    Either you're wit' us or a Guinness -- Brilliant!

    by Unforgiven on Sun Dec 18, 2005 at 11:29:27 AM PST

  •  These are the guys who hate unenumerated rights (4.00)
    even though they are explicitly endorsed in the text of the 9th amendment to the constitution. But when it comes to unenumerated presidential powers nowhere mentioned in the constitution, they are suddenly big fans of creating powers without textual authority.

    One can have nothing but contempt for such double standards.

    •  "penumbra of power" (none)
      Condi Rice said the President has powers that "derive" from the Constitution in justifying the spying program on Meet the Press today. Of course, she refused to cite any specific provisions of the Constitution.

      You're absolutely on the right track in pointing out that conservatives who don't like "rights" that "eminate" or derive from the Constiution that aren't specifically enumerated sure as heck shouldn't like broad, unchecked executive power that purportedly "derives" or eminates from the Constitution.

  •  Add to the list of impeachments (none)
    When the Democrats control Congress again -- and if we don't, the Constitution no longer exists -- one of the names on the list of impeachments should be Bybee.

    Right now my list runs something like this:
    President Bush
    VP Cheney
    Secretary of State Rice
    Attorney General Gonzales
    Secretary of Defense Donald Rumsfeld
    Undersecretary of Defense Stephen Cambone
    National Intelligence Director John Negroponte
    Secretary of Homeland Security Michael Chertoff
    FBI Director Robert Mueller
    CIA Director Porter Goss
    Any remaining justices in the majority in Bush v. Gore
    Chief Justice John Roberts, for lying to Congress in his confirmation hearings
    Judge Bybee
    Judge Laurence Silberman

    As part of their impeachment, they should be stripped of all claims to perpetual pensions and healthcare paid by the taxpayers.

    -6.00/-7.18 The revolution starts now--in your own back yard, in your own home town

    by TarheelDem on Sun Dec 18, 2005 at 11:33:37 AM PST

  •  The Declaration of Independence (none)
    Let us not forget the Declaration of Independence.  I refer especially to the last sentence here.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    Government is instituted among men to secure our rights of life, liberty, and the pursuit of happiness.  We now know that our new King George has become destructive of these ends.  We now have the right to alter or abolish this form of government.  

    It completely calms my inner chaos to read about Scooter Libby's problems. Zippy 12/14/05

    by MoDem on Sun Dec 18, 2005 at 11:34:20 AM PST

  •  Thank you for placing The Federalist Papers (4.00)
    in their true light. If Americans were well-versed in this classic, we would not be facing a potential Constitutional crisis at this point.

    Excellent work once again, Armando!

    Novus Ordo Seclorum. Since 1776.

    by Ignacio Magaloni on Sun Dec 18, 2005 at 11:34:43 AM PST

  •  Lawyers (none)
    It seems to me that there have been lawyers around for quite some time now, so if this was such a slam dunk case for Presidential Powers I can't imagine why it wasn't used sooner than this by any number of Presidents. Reagan, Nixon, and even Lyndon Johnson to name a few. What I don't understand is if this was such a good case why Bush didn't take this crap to a Republican lead Congress. The list of who has been spied on will certainly be interesting...if it ever sees the light of day.
  •  Armando, thank you for another excellent lesson (none)
    on the US Constitution - very helpul for those of us who did not attend HS in the US!
  •  Checks and Balances (4.00)
    Essentially, these people are saying to us, "You know those checks and balances you were told about in fifth grade social studies class? Funny thing - that was actually, uh, a lie.  Huh huh."

    And people are swallowing it.

    •  my question (none)
      What are these gang of criminal hiding. I think the reason they know they can't get permission from the FISA, is that thy are spying on their own diplomatic /staff phone calls.

      (aka. Bolton and friends) I seriously think all this has more to do with run up to Iraq war. Where they are listening in to everybody. (remember that British intelligence officer in UN, who leaks the spying effort? Kathrin Gunn?)

      Bush was spying on all US diplomats and pounding evrybody who doean't agree.

  •  Thanks, Armando (none)
    We're in a showdown now, that's for sure, but one wonders how well BushCo. has set this up by declaring it's Global War on Terrorism, e.g. a War Without End?  Because if you want unlimited powers, what could be a better foil?

    Will the American people fall for it?  Will we have leaders willing to push this cart to the logical end of the road?

    No one will be surprised, but I must add, it's amazing how many people I talk with who simply don't care.


    •  Why IS that? (none)
      I absolutely do not understand how people don't care about this.  How can you not care about this intrusion, especially if you vote for a party of "small government"?  And what can we do to change that?  Ideas?

      Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. - Benjamin Franklin

      by gkn on Sun Dec 18, 2005 at 01:12:58 PM PST

      [ Parent ]

    •  The American Revolutionary War itself (none)
      was only started by a minority.  People bought into it later, sure (who doesn't want to gain power for themselves) but it was certainly not a massive uprising.

      There's someone on this site w/ a great signature quote for this - Margaret Mead, I think? "Never doubt that a small group of thoughtful, committed citizens can change the world.  Indeed, it is the only thing that ever has."

      And as for the war without end - Johnson didn't get any traction from his 'War on Poverty';-))  Plus, didn't they change the name of this to Global Struggle Against Extremism?  

      No president gets perpetual wartime powers for a "struggle."

      "Nobody ever looks like Joe McCarthy. That's how they get in the door in the first place." - Toby Ziegler

      by iheartbooks on Sun Dec 18, 2005 at 02:44:48 PM PST

      [ Parent ]

  •  I have given lot of slack to Bush (none)
    I've always given him some benefit of doubt but this is the end of it. I've always approved of Gitmo and even rendition of high Al-Q figures. But they weren't US citizens.

    If the law allows alternate measures if there is no time to get a warrant, why not use those? Why does Bush find it necessary everytime to parse laws and sidestep them?

    It's like the compulsive shoplifter who goes into a store and steals the free-after-mail-in-rebate pack of CDs because he doesn't like to fill out the main in rebate form.

    I think Feingold said it best: He is NOT a king!

    •  The situation where I think... (none)
      Bush first crossed the line was the Jose Padilla case.  Here is an American citizen picked up in O'Hare Airport, put away in solitary for three years without being allowed to see an attorney or being charged with anything.  Up until last week, I would've said that was the most egregious violation of powers in this Administration.
      •  The courts backed him up on that one (none)
        I think...

        A lot of libertarians I know from another forum were pissed off about that one too.

        NYT, by suppressing this news might have changed the outcome of the 2004 election.

  •  President and Yoo's woes (4.00)
    Yoo has also given such mind boggling advice to fight war on terror, one has to read it to beleive, click here

    And our president relies on memos from such shady characters to throw constitutional checks and balances out of the window. What else has Yoo many innocents have been framed, fake Al Queda attacks, fake chatter, orange, green and red colors?

    I must say president is in deep sh*t

    Mushroom clouds for mushroom crowds.

    by Ruffledfeather on Sun Dec 18, 2005 at 11:48:24 AM PST

  •  Look, I don't want to over-react BUT (4.00)
    I think what we have here is a GEN-yew-ine Constitutional Crisis.

    I've been thinking about this all day today and most of yesterday. I haven't researched it independently because I figure there's about a million lawyers--like me--and another twenty million non-lawyers doing that right now.

    Let's keep it real, real simple: we have what appears to be a clear violation of a federal statute. Not only that, we have what appears to be a clear admission of that violation. In these circumstances, "innocent until proven guilty" does not apply any longer. The question pivots around to whether the conduct was either justified or excused. Those, my Kossackian friends, are affirmative defenses, meaning the burden is on the accused to persuade the trier of fact.

    A violation of law could be justified if a true emergency existed, but we've learned over the past 48 hours (see Talking Points Memo) that the warrants required by FISA are absurdly easy to obtain and can even be obtained retroactively. So, unless the Bush Administration can point to a definitive, honest-to-goodness emergency, like an imminent attack or something, "justification" does not apply. As the announcement says, "had there been an actual emergency" Bush could have just closed the loop with a retroactive warrant. We also know that his politics dictate trumpeting every single supposed heinous act prevented or barbarous Islaamist his bloodhounds track down. I don't remember these wiretaps coming up in any of the very, very few trials we've had, nor any pronouncement of an attack foiled. So, I'm saying, "no justification."

    OK--let's look at whether it can be excused. In this circumstance, it must be shown that there is a legal rationale that overcomes what appears to be a host of offenses, but I see only legal problems upon legal problems in excusing the statutory violation. The only way to excuse what the President did is to reach, scramble, dissemble and find very complicated rationales. Invariably, tortured (dark pun intended) legal analysis is also wrong legal analysis.

    For example, since I'm just an Unfrozen Caveman Lawyer, someone needs to tell me how this is not a violation of the FISA law; not a violation of the Fourth Amendment; not a violation of Separation of Powers provisions (trickier here perhaps--aren't the FISA courst within DOJ? I'm not sure); not a violation of whatever Congressional grant of authority was extended, post-9/11, to the President (which could not possibly be interpreted as a grant of authority to break other laws that Congress passed); and, finally, not a violation of the President's Oath to uphold and defend the Constitution.  

    Then, someone needs to tell me how the underlings who cabbaged this ridiculous scheme together have not commited a boatload of crimes that are punishable without waiting around for impeachments and how having these wiretaps reviewed by "the highest legal whatchamacallits in the administration" possibly salvages the legality of this conduct, since it is still a completely unchecked use of power.

    Finally, someone needs to tell me how the Congressional leaders who were "briefed" on this did not themselves violate their Oaths of Office and become co-conspirators since these Congressional leaders are not imbued with some independent power to over-ride the will of Congress as express in law, siged by the president, and implicitly endorsed by the Supreme Court when the laws stand unchallenged on Constitutional grounds.

    I'm just too dumb to come up with all of those arguemnts for the defense. Without them, however, I have a hard time seeing how Bush should not possibly be impeached, convicted and removed from office and everyone else involved treated as co-conspirators and indicted, prosecuted and, if warranted, convicted and sentenced.

    Again, am I over-reacting or is this just about the dumbest, most extremist, obvious, convictable, punishable exercise in illegality undertaken by any Presidential Administration in U.S. history? And, to the extent this conduct involves lesser officers than the President and, evidently, members of Congress, doesn't that make many of these actions garden-variety crimes that can be taken up not only without impeachment but by routine law enforcement mechanisms rather than a special prosecutor?

    Help me out here. It CAN'T be this EASY.

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sun Dec 18, 2005 at 11:59:12 AM PST

    •  A Government of Unenumerated Powers (4.00)
      What, the 10th Amendment's making this a government of enumerated powers?  The Founders were just kidding about that one...
      Amendment X

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      It's been a while since Criminal Law, but I recall there's an affirmative defense based upon having a government lawyer tell you your action is legal and acting in good faith reliance on that opinion.  However, I question that anyone could in good faith rely on a legal opinion finding "unenumerated executive powers" in a government based upon enumerated powers - especially a bunch of folks who believe "judicial activism" is wrong.

      As for US electronic eavesdropping being so secretive, give me a break:

      March 7, 2003 --  U.S. and Pakistani officials have narrowed their search for Osama bin Laden to a caravan near the border of southwestern Pakistan, ABCNEWS has learned.

      The CIA and Pakistani army are electronically tracking the large caravan of people on foot and horseback through the rugged mountain area of Pakistan between the borders with Iran and Afghanistan, Pakistani officials told ABCNEWS.

      Bin Laden may be traveling with the caravan and may be on foot.

      Officials have cast a net around the caravan -- using electronic U.S. surveillance and planes with cameras that can see through darkness to monitor its movement along a trail.
      (Source: ABC News Officials Narrow Bin Laden Search to Caravan March 7, 2003

      As you correctly point out - President George W Bush has openly admitted to violating the FISA laws.  It'll be interesting to see what happens next - impeachment or "President-for-Life Bush."
      •  Actually, I thought about reliance on counsel (none)
        But reliance on advice of counsel fails for two reasons.

        Reason 1, the counsel that Bush relied on (correct me if I am wrong) are effectively his employees and FISA is set up to avoid just that circumstance. It's also a breach of an attorney's obligation to avoid a conflict of interest or appearance of impropriety to give his employer advice in this circumstance on how to avoid the judicial review that is a part of the statute. So, I say it's gotta be an independent counsel, at the very least.

        Reason 2, reliance on counsel has got to be more of a defense in civil cases, where taking an action where you relied in good faith (another Bush problem) on counsel's advice got you into a lawsuit in a murky situation. Otherwise there is no point to any criminal law, assuming there is just enough or a rationale to break it. The risks of Reason 1, in what is supposed to be a system of checks and balances, makes this very problematic--especially when the words and intent of the crimial statute are by necessity as clear as possible in order to meet the Due Process requirement of the Constitution.

        I'd have to believe this is the defense Bush is already mounting, and that's fine. The above flaws go more to the persuasiveness of the defense than being a bar to raising it. But I say common sense tells us reliance on counsel can only be carefully and restrictively applied or you'd never be able to prosecute, say, under RICO because Joey "The Clown" Lombardo would just go "HEY, I AKSED my LAWYER and he said 'youse guys are OK on dis' so we DID IT."

        The answer is simple: Let's put it to the test with a trial or fifty, including the Big Enchilada: Impeachment. Of course, since the nature of the legal representation is central to the issue being tried, attorney-client privilege (not to mention executive privilege) would not apply.

        Bottom line, he's screwed. I'd be telling him to consider making a deal.

        Anyone else got an idea for a defense? This is kinda fun.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sun Dec 18, 2005 at 12:56:45 PM PST

        [ Parent ]

      •  Must we appeal to Bin Laden (none)
        to teach us how to protect ourselves from US snoops?
    •  FISA an Article III Court. (none)
      Since the judges on the FISA court are Article III federal judges, I believe it follows that the FISA court is an Article III court, and not within DOJ or any other part of the executive branch (even though it is housed within the Justice Department building.)

      So there is a separation-of-power problem.

    •  Not a Constituional Crisis (none)
      I agree with everything you say, except about it being a constitutional crisis. But it's probably just a definitional thing.

      For me, a constitutional crisis is when there's a problem in the workings of the government, but the solution to the problem isn't easily determined from the constitution.  If Bush Sr. had invaded Kuwait without congressional authorization, that could have led to a crisis, with the President saying "I'm commander-in-chief" and Congress saying "We haven't declared war." I don't think the 2000 election was a crisis, since all the solutions were easily visible from the constitution, even if many of us didn't like the possible outcomes.

      In this case, though, it seems really cut-and-dried: The President publicly admitted to authorizing warrantless wiretaps. That would violate the 4th amendment (which requires warrants) along with the existing code on electronic survellience in which Congress spelled out just what was allowed, how it was to be enforced, and even gave some exceptions for emergencies.

      The laws are explicit and the evidence is straightforward. There may be questions about whether Congress will impeach him, or whether it should, but there's not much question about whether it can. The rest is politics.


    •  Sounds Familiar... (none)
      "Kaffee: [shouting] Did you order the Code Red?
      Col. Jessep: [shouts] You're goddamn right I did!"

      Someone please read the President his rights.

  •  IMPEACH (none)
    Tarheel, where do I sign?...I've signed 4 impeament petitions so far. The winds of change are here. No man is above the law,as nixon found out the hard way, now it's your turn bushie.
  •  Alito (4.00)
    I hope that the senators, which questioning Alito's "strict construction" philosophy ask him if the President has powers beyond what the Constitutional expressly states. I'm sure he'll dodge that one.

    It's not easy being a Floridian.

    by lawstudent922 on Sun Dec 18, 2005 at 12:03:10 PM PST

    •  The Federalist Society (4.00)
      recently met and were discussing exactly that! This last Thursday I believe. I saw it on CSpan and almost chocked on my popcorn.

      The very serious scholars in the Federalist Society were expressing concern over the nomination of Alito??????? Rubs eyes.

      I thought I was hallucinating. Saying Alito has no consistent philosophy except to give broader authotiy to govt.

      I will see if I can find a link.

      inspire change...don't back down

      by missliberties on Sun Dec 18, 2005 at 12:41:55 PM PST

      [ Parent ]

  •  FISA and Bush (4.00)
    To the New York Times:

    Dear Mr. Calame:

    So, you concealed the fact that the Bush Administration was illegally monitoring phone conversations and other forms of communications in direct violation of the law, and without so much as modest bow toward the legal and constitutional barriers to such conduct. The White House asked that you conceal a felony for them and you, of course, the ethical paragons that you have shown yourselves to be, acceded to this perfectly straight forward request.  After all, what are the first, fourth and ninth amendment protections for the rest of America next to yours and that other paragon, Judith Miller?  You go to great lengths to protect your own self interests, but when the constitutional rights of the entire country are at stake, you clam up so as not to disrupt something as insignificant as a Presidential election.

    It appears that the problems of the New York Times are not confined to a mere lack of editorial control and judgement, unethical reporting practises and difficulty in grasping essential facts, but have migrated into the territory of the amoral, the ultimate in objectivity. This no mere ethical slip, it is misprision of a felony.  Your newspaper, invested by the Constitution of the United States with the right to freely reveal information and news vital to the Republic, with full protections of law and the courts behind it and with a moral and ethical obligation to pursue those rights with at least a semblance of integrity, chose instead to fundamentally subvert the law and the Constitution. You chose to assist the President of the United State in concealing a felony. You chose to abandon not only your readers but the American people and, now, in a fit of self-righteousness, you see fit to publish a story that you hope will provide you with some cover.

    Contempt.  Disgust.  The word that comes to mind is one newly arrived to the Oxford Dictionary of the American Language.  Squicked.  That sums up my feelings.

    •  BRAVO!!! (none)
      Talking about telling it like it is!!! The NY Times owners, editors and staff are a bunch of gutless self-interested Bu$hit administration ass kissers with absolutely no ethics or scruples!! I cannot in good conscience read this piece of crap anymore, it's not fit to wrap rotting fish in.

      "It's better to die on your feet then live on your knees"

      by Blutodog on Sun Dec 18, 2005 at 03:04:26 PM PST

      [ Parent ]

  •  I had thought (4.00)
    that the President's pounding the concept of the "War on Terror" was just propaganda, framing.  Now I see that behind it was his justification for doing who know what to who knows whom.  Now all of his actions, including torture and the secret prisons, can be seen more clearly.  These new revelations of what he is doing may just be the tip of the iceberg.

    The end is near for those who wait.

    by tc59 on Sun Dec 18, 2005 at 12:04:38 PM PST

  •  One more from the Federalist (none)
    The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

    I blogged about this a bit here.

  •  4th amendment?????? (none)
    prohibits warrentless searches, doesn't it??

    In the face of this, how can they use a Federalist paper (even if it supported their assertion)??

    Doesnt the actual Constitution trump Federalist papers analysis, anyway?

    someone please explain to this simpleminded person

    p.s.  thank you Armando for this very informative (and scary...) series

    •  FISA (none)
      I think you gave a good argument that FISA, in that it allows warrantless searches in some extraordinary circumstances, violates the 4th Amendment. But it won't be tested in that such searches do not lead to criminal prosecutions.

      The theory of Yoo/Bybee would be that the 4th does not impact the President's Commander in Chief powers.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 12:49:48 PM PST

      [ Parent ]

      •  Isn't later in time the general rule (none)
        for both statutes and constitutional provisions, where they conflict?

        So how could the Fourth Amendment not trump Articles 1 and 2 of the Constitution?

        •  A Question of Interpretation (none)
          Was it intended to circumscribe the Commander in Chief power? Yoo, et al would argue it wasn't.

          I would cut the argument off at the pass, what C-i-C power is there that permits the President to do it? It does not exist.

          The SCOTUS is extraordinary.

          by Armando on Sun Dec 18, 2005 at 02:24:39 PM PST

          [ Parent ]

  •  Interesting development over at DU (none)

    prolesunitedat DU came up with this interesting tidbit.

    Did Ashcroft ask for wiretap expansion, was rejected & they still did it?

    So, all you smart people help me out here.

    I was digging around and found this:

    The Bush administration recently received a harsh legal blow in the war against terrorism. It came from an unlikely place: a clandestine federal court responsible for reviewing government requests to spy on terrorism suspects.

    This court, known as the Foreign Intelligence Surveillance Act (FISA) Court, refused to approve of certain procedures proposed by Attorney General Ashcroft. In an unprecedented move, it also publicly released its ruling this August. The dispute, however, had been going on since May, when the Court announced its dissatisfaction with the procedures and its belief that they were contrary to existing federal law.

    The procedures would have allowed criminal prosecutors routine access to information obtained through counterintelligence searches and wiretaps - without a probable cause showing that a crime had been or was about to be committed. ("Counterintelligence" is defined within the FISA as information gathered, and activities conducted, to protect against espionage; other intelligence activities; sabotage; or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.)

    There's more there and here's a link to the actual ruling:

    If I'm putting this together correctly, did they ask for expanded surveillance powers, were DENIED by the FISA court and then went ahead and did it anyway? Or, are these two separate matters?

    If I'm right, this definitely seals the case for impeachment for me.

    So, help me analyze this more.

    •  Two separate matters (none)
      I believe.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 12:50:56 PM PST

      [ Parent ]

      •  Okay... (none)
        I thought I would pass it one. In case...
        •  How does this fit in? (none)

          In First-Ever Ruling, Secret Appeals Court Allows Expanded Government Spying on U.S. Citizens (11/18/2002)


          WASHINGTON - Ruling for the first time in its history, the ultra-secret Foreign Intelligence Surveillance Court of Review today gave the green light to a Justice Department bid to broadly expand its powers to spy on U.S. citizens.

          "We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants," said Ann Beeson, litigation director of the Technology and Liberty Program of the American Civil Liberties Union.

          "As of today," she said, "the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."

          At issue is whether the Constitution and the USA PATRIOT Act adopted by Congress after the Sept. 11 terrorist attacks permit the government to use looser foreign intelligence standards to conduct criminal investigations in the United States.

          Last May, in a historic first, the Foreign Intelligence Surveillance Act court (FISA) made public a unanimous decision rejecting the government's bid for expanded spying powers. After the Justice Department appealed, the ACLU was granted permission to file a friend-of-the-court brief in the appeals court, together with the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute.

          The ACLU and its coalition partners are examining today's decision and considering a number of options, including requesting an appeal to the Supreme Court and asking Congress to clarify through legislation that it did not authorize the Justice Department to use FISA's looser surveillance standards in ordinary criminal cases.

          "This is a major Constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said. "Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy," she added.

          The FISA court and the Court of Review were created under a law passed by Congress in 1978, which authorizes government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret.

          Although the ACLU and its coalition partners were allowed to file a friend-of-the-court brief in support of the lower court ruling, they were not allowed to participate in the oral argument before the Review Court that resulted in today's decision, and they are not automatically entitled to submit an appeal to the U.S. Supreme Court.

          Today's decision comes on the heels of a White House announcement of a new system being developed at the Pentagon that would be able to track every American's activities. The so-called "Total Information Awareness" program will create -- according to Pentagon officials -- the infrastructure for the most extensive electronic surveillance system in history. Conservative New York Times columnist William Safire has dubbed the program "a supersnoop's dream."

          The FISC Review Court is a special three-judge panel appointed by Chief Justice William H. Rehnquist in accordance with provisions of the Foreign Intelligence Surveillance Act. The judges are: Hon. Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit; Hon. Edward Leavy, U.S. Court of Appeals for the Ninth Circuit and Hon. Ralph B. Guy, Jr., U.S. Court of Appeals for the Sixth Circuit.

          The court's decision is online at

          A feature with documents related to the case is online at

      •  jeez..... you've been busy, very hard to (none)
        track your pathes [sic?]

        , a four for them all.......

        What an excellent day for an Exorcism... SCI/Kenyon

        by DianeL on Sun Dec 18, 2005 at 10:38:54 PM PST

        [ Parent ]

  •  The Fedaeralist Papers scheme . . . (none)
    is only as good as Congress.

    When one branch allows the other to reign supreme, the structure itself will not function.

    Frist is now saying he thinks that only the intel committee, not the judiciary committee, should hold hearings, and that they should be closed hearings.

    The ball is in Congress's court. Bush has thrown down the gauntlet.

    2006 congressional elections are as important as they have ever been in our history.

    Accountability is too weak a word to capture what is at stake

  •  Lincoln on the War Powers (4.00)
    Here's the Bush admin's rationale for plenary powers:

    The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

    The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

    And here's Abraham Lincoln on the same topic:

    Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose - and you allow him to make war at pleasure.... Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't."

    The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.

    For the historically challenged among us (in Congress, in the White House, etc.), placing "our President where kings have always stood" is, Constitutionally speaking, for Lincoln was a bad thing.

    "I do not find in orthodox Christianity one redeeming feature." -- Thomas Jefferson

    by davido rex on Sun Dec 18, 2005 at 12:53:36 PM PST

  •  I'm no lawyer (none)
    but from my perspective, eavesdropping on terrorists' overseas calls and the Patriot Act have kept us safe from attacks for four years.

    Many Americans would be concerned if intelligence agencies were NOT keeping an eye on our potential enemies.

    Remember the post-9/11 complaint that the government failed to "connect the dots"?

    •  Terrorists' calls? (none)
      If they are terrorists, why not arrest them?

      This is bunk from you.

      You live a lie if you really believe that BS.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 01:18:50 PM PST

      [ Parent ]

      •  why not arrest? (none)
        I thought of that too, but they'll say that they can be more useful if they are keep an eye on them and learn intelligence from them before they are placed under arrest.

        I'm not saying I agree with the unlawful spying, I just think the - why don't they arrest them - point isn't too strong.

        •  If they are known terrorists . . . (none)
          you can get a warrant.

          You are even allowed to tap w/o a warrant for 72 hrs.

          •  yes (none)
            which is why the Bush actions are so bad, FISA allows for wiretaps on terrorists with minimal oversight.  These guys circumvented that "safeguard" by going around the FISA court.

            And, to what end? These points should be tied back into the "incompetence" arguments. Katrina, Iraq, Economy. You just can't trust these folks because they are not as infallible as they want us to believe. Anyone that has to rely on hyperbole and misleading rhetoric to get what they want is not proving leadership and is not worthy of being seen as a leader.

    •  Do you trust this administration? (none)
      In recent weeks, we learned that the FBI had issued tens of thousands of National Security Letters and the Pentagon had spied on opponents of George W. Bush's war. Do you really think those efforts were narrowly focused on al-Queda and other terrorist organizations?

      This administration doesn't tell the truth and can't be trusted with power.

      Every Saturday, there's a new weekly roundup of Michigan politics here on Daily Kos.

      by Dump Terry McAuliffe on Sun Dec 18, 2005 at 01:26:29 PM PST

      [ Parent ]

    •  I could claim that I've developed a (none)
      secret cure for Bird Flu. Since I assume you haven't contracted it, voila! See, it works!
    •  This is just silly. (none)
      I would love to see your evidence that we have been kept safe for four years by these things. How long was it between the first WTC and 9/11? does that mean that we were kept safe for 8 years by Clinton without compromising our civil liberties?

      The people that make these arguments completely misunderstand terrorists methods/motives. They don't get together on some sort of annual basis and decide on targets. They choose target's of opportunity and take up to years to plan attacks. If the terrorists decided to implement a series of car bombs here for instance, it would be easy for them to do it. Easy. One of the main reasons they don't do it, at least in my view, is that after how spectacular 9/11 was, anything else would pale in comparison and they would look weak.

    •  I just wonder why you believe that (none)
      the Patriot Act has kept you safe from attacks for years? Can you prove it? Just because you say so, or Bush says so, doesn't make it so and it doesn't mean a thing.

      I think Yoo, Bybee and Bush, Rumsfeld and Cheney can afford to make minced meat out of the constitution, because they know that just a tiny minority would read the Federalist papers.

      Coming to think of it, why is the content of these papers never written in more modern language and in a more precice fashion? May be more people would immediately realize the misleading interpretation, if that were the case?

    •  They Are Monitoring (none)
      The Executive branch can have all the monitoring they want provided the request is reviewed and approve by the court as per FISA and the Patriot Act.  It can even be up to 72 hours after the monitoring and the FISA court in question runs 24/7 to provide this service.  He ignored the law.  He acted illegally.

      It isn't about making us safe, it's about ignoring the law.

    •  ...kept us safe.... (4.00)
      I have a dog that hates elephants.  There are no elephants in my back yard.  Therefore, the dog kept the elephants away.


      by martik on Sun Dec 18, 2005 at 06:15:05 PM PST

      [ Parent ]

    •  You aren't making any sense (none)
      The post-9/11 complaint was that the Administration had all the intelligence they needed, including knowledge of the presence and whereabouts of the major actors, and they failed to act on it.

      In other words, the pre-9/11 laws and practices had unambiguously succeeded in producing the necessary intelligence. The Administration did nothing. Changing the laws and practices therefor accomplishes nothing, insofar as preventing terrorism.

      The PATRIOT act repealed the safeguards put in place after Watergate. That tells you all you need to know about the motives of the people who supported it.

      Think about it: The only times this Administration has ever reacted swiftly and effectively was when it was dealing with political opponents. If you want to feel safer knowing that the President is snooping illegally on US citizens, CLAP LOUDER. He is famous for being unable to tolerate dissent.

  •  Hmmm... (none)
    I have here a very telling memo.

    It seems we have been told one thing, and another has occurred.

    Not that I'm complaining. I think you're one of the best and most well-informed FPers.

    "[T]hat I have no remedy for all the sorrows of the world is no reason for my accepting yours. It simply supports the strong probability that yours is a fake."

    by Heronymous Cowherd on Sun Dec 18, 2005 at 01:01:46 PM PST

    •  Not a regular occurrence (none)
      I did this analysis of the legal arguments undergirding these outrageous actions now defiantly reembraced by the Presiden of the United States.

      Other than ScAlito, you'll only see me on the front with things of this importance.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 01:17:49 PM PST

      [ Parent ]

      •  It is Important. Thanks. (none)
        Yeah, it even got me to write out some emails to my reps. I used the goad that they could be in personal danger from this.

        We'll see if it gets their attention.

        "[T]hat I have no remedy for all the sorrows of the world is no reason for my accepting yours. It simply supports the strong probability that yours is a fake."

        by Heronymous Cowherd on Sun Dec 18, 2005 at 01:24:46 PM PST

        [ Parent ]

    One reassuring thing about all of the "illegal spying" that was done INSIDE the US by the administration is that there were very few high profile "cases" discovered and brought before courts and the media as a result...

    Maybe we are safer than we think...if "even" illegal actions by the government can't "smoke 'em out."  

    And just maybe, this entire "war" should be handled, AS IF it were a fight against organized crime...

    After all, invading countries is an expensive business...and the morning after is...Well a problem, as we now see in Iraq.

    Nevertheless...there is a real possiblity that these domestic wire tapes could devolve into Watergate Redux...

    OR even Bush's "Monica..."

    More Content, Less Chat.

    by BALTHAZAR on Sun Dec 18, 2005 at 01:13:58 PM PST

  •  The administration's trump card (none)
    S.J.R. 23 (P.L. 107-40), the Use of Force Resolution passed September 14, 2001:

    Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

    Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

    Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

    Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

    Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

    Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

    §1. Short Title.

    This joint resolution may be cited as the "Authorization for Use of Military Force."

    §2. Authorization for Use of United States Armed Forces.

    (a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    (b) War Powers Resolution Requirements.
    (1) Specific statutory authorization.--Consistent with §8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of §5(b) of the War Powers Resolution.
    (2) Applicability of other requirements.--Nothing in this resolution supercedes [sic] any requirement of the War Powers Resolution.

    The courts have already ruled that this resolution justifies the detention of "enemy combatants" (though they have a limited right to challenge that status) and the establishment of military commissions to try accused terrorists.

    With John Roberts on the Court and Samuel Alito warming up in the bullpen, this could be used to justify all sorts of other executive action.

    Remember that in both the Japanese internment case and the Quirin decision upholding military trials for German saboteurs caught on U.S. territory, the Court found an act of Congress justifying what happened--and thus sidestepped the question of inherent executive authority.

    •  WHEREAS (4.00)
      a whereas clause provide no power, and

      WHEREAS, the assertion of Presidential power was not ruled upon in Hamdi, it is now

      RESOLVED, that you are incorrect in your assertions in the comment above.

      The SCOTUS is extraordinary.

      by Armando on Sun Dec 18, 2005 at 01:45:32 PM PST

      [ Parent ]

      •  SLOPPY - read the authorization (none)
        §2. Authorization for Use of United States Armed Forces.

        (a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

        •  Sloppy indeed (none)
          FORCE - of the "necessary and appropriate" variety.

          Keep dreaming on this one.

          You really are all wet here sir.

          The SCOTUS is extraordinary.

          by Armando on Sun Dec 18, 2005 at 02:38:27 PM PST

          [ Parent ]

        •  And this (none)
          "the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"

          You really are sloppy.

          The SCOTUS is extraordinary.

          by Armando on Sun Dec 18, 2005 at 02:39:30 PM PST

          [ Parent ]

          •  Harsh, no? (none)
            The applicable language is subject to interpretation, no? Just who interprets it? And who enforces it?

            See doctrine about standardless delegations, then
            read the various Congressional Acts authorizing the "Iraq war on terror", and then get back to me.

            •  What interpretation? (none)
              Connected directly to 9/11.

              Sorry, you are simply wrong here. Why you insist on your line of critique, I can't say.

              The SCOTUS is extraordinary.

              by Armando on Sun Dec 18, 2005 at 03:03:04 PM PST

              [ Parent ]

              •  Words have meaning - Who determines? (none)
                Just whom does the Resolution authorize to determine the connection to 9/11 (and is the word "direct" used)?

                Congress knows how to use language. For example, they could have said "as determined by the Un General Council". They gave the power to Bush  and put no standards of accountability in law.

                I insist on my line of argument because every rebuttal confirms my basic point: CONGRESS needs to be the focal point. When Congress is the focal point, certain other activites come into play, like media, organizing, and 2006 elections.

                •  good for you for not backing down (none)
                  from the schoolyard bully! :)
                •  Surely you jest (none)
                  the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons

                  The President has to determine who those people are is is then authorized to use force (not electronically surveil them). You are just being absurd now.

                  If the President has determined that certain U.S. citizens or groups are among those defined, he can arrest them. This was done with Padilla.

                  You are just making farcical arguments.

                  Now, can he arrest Padilla and deny due process?  say no, the Constitution does not permit it. The Bush Administration has now charged Padilla so we probably won't have a resolution of the issue by the SCOTUS.

                  But please stop with the sophistry.

                  The SCOTUS is extraordinary.

                  by Armando on Sun Dec 18, 2005 at 04:05:49 PM PST

                  [ Parent ]

                •  Final word (none)
                  What's more disturbing is the question Josh poses about whether the President thought that the Authorization for the Use of Military Force (the post-9/11 legislation)  trumped any statutory prohibition.  First, I don't know why their legal reasoning regarding how they got to this position should be classified.  Did the Administration believe the AUMF trumped statutory authority?  If yes, how? If no, did they find their legal authority in the Commander in Chief clause? And, in any event, can't we at least know how many other statutes have been trumped by interpreting the AUMF or the CiC clause so expansively?  None of this would tip the terrorists off, but it would help in understanding how we got to this stage and, more importantly, what the heck else might be going on.

                  One final thing.  The AUMF authorizes action against those responsible for 9/11.  In fact, there was a huge debate at that time. . . .the White House's original language covered "terrorists", and Congress brought them back, forcing them to link "military force" with 9/11.  Even if one buys the argument that surveillance against U.S. persons or communications is part of "military force" or active combat, the President better hope that every person actually targetted was linked to Al Qaeda (and not just any terrorist organization).  Bush today gave some hint that the surveillance was targetted against those with  "a clear link" to al-Qaida, but then he added "or related terrorist organizations."  That's not exactly in the language of the AUMF.  So maybe they are finding their legal justification somewhere else?  Or maybe they just thought they would never get exposed.

                  From someone who worked with the FISA issues. So can we move on now?

                  The SCOTUS is extraordinary.

                  by Armando on Sun Dec 18, 2005 at 04:45:06 PM PST

                  [ Parent ]

  •  The former NS director (none)

    "Everyone in the administration understands that 2 + 2 =5, Tim."

    Mother Nature bats last.

    by pigpaste on Sun Dec 18, 2005 at 01:36:40 PM PST

  •  upside down (none)
    I have to say,and I never thought I would,but I was very impressed with Bob Barrs appearance on CNN fri.It was shocking to find myself in complete agreement with his well spoken and reasoned arguments on chimpys phone fun. He completly dismantled Roarebacher,leaving a grinning twit that wasnt quite if things had gone as they should have.Perhaps Barr has been breathing better quality air lately.

    it tastes like burning...

    by eastvan on Sun Dec 18, 2005 at 01:39:34 PM PST

  •  Yes I love you much, as a fellow human being, but! (none)
    I need to spend some time on what you've written to decide whether I agree with what you say.......

    What an excellent day for an Exorcism... SCI/Kenyon

    by DianeL on Sun Dec 18, 2005 at 01:43:56 PM PST

  •  Well reasoned argument, Armando (none)
    What are some of the actual dangers to U.S. citizens when civil liberties get trampled? Private medical records can be revealed.  Phone calls to one's Senator or Representative can be tapped.  Income tax returns, bank records, library records, business transactions, etc. can be scoured without cause.  Attendance at any kind of group meeting can be monitored.  It is not a stretch to imagine this kind of activity when warrentless surveillance is undertaken.
    And it was undertaken because of feelings of powerlessness and fear.  They were not acting out of competence.  This administration has thus paradoxically fed fears rather than made us feel safer.
    Our current president is not well served by his lawyers.  Because he has been so suggestible from people he thinks are more expert than he is on complicated matters, he said, "Oh, I can?  Really?  OK."  But any high school senior who has taken a civics class should be able to understand the risks of acting "without a warrant."
    •  Oh, come on. (none)
      Jim Baker is one of Bush père's chief advisers, and a competent lawyer.  I'm sure he was perfectly capable of telling Bush fils what a crock that stuff he was being told by Bybee, Yoo, Gonzales, and Addington was.
    •  I disagree (none)
      Our current president is not well served by his lawyers.  Because he has been so suggestible from people he thinks are more expert than he is on complicated matters, he said, "Oh, I can?  Really?  OK."

      He was served perfectly. What has been spun so well is the notion that Bush is dumb and that people have manipulated him.

      Richard Clarke Interview with CBS:

      "I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.'

      "He came back at me and said, "Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer. We wrote a report."

      Clarke continued, "It was a serious look. We got together all the FBI experts, all the CIA experts. We wrote the report. We sent the report out to CIA and found FBI and said, 'Will you sign this report?' They all cleared the report. And we sent it up to the president and it got bounced by the National Security Advisor or Deputy. It got bounced and sent back saying, 'Wrong answer. ... Do it again.'

      It is not that far of a step to think that Bush went to his lawyers and advisors and said, "I need to be able to get the goods on whoever I think is an enemy or who will undermine my policies. Come up with a way to make this happen for me."

      Those lawyers and advisors gave him exactly what he wanted.

      Bush - the ultimate example of the Peter Principle.

      by PatsBard on Sun Dec 18, 2005 at 03:37:48 PM PST

      [ Parent ]

      •  lawyer service (none)
        It was my impression that the administration's lawyers' salaries are paid by taxpayers.  In my opinion they are supposed to work for us.  They are not privately hired guns; they are supposed to offer competent advice, not hair-splitting legal dodges for our now neocon president.  He has been manipulated into that camp.  It happened somehow in December of 2001.  That he is malleable is no excuse.  I in no way let him off the hook for his part.  Nor do I let the voters who elected him off the hook.  Patsbard, we are on the same side.  Thanks for the thoughtful comment.
  •  You'll never find another idiot (none)
    like me who disagrees yet loves you so very deeply,

    Without a DICK involved

    What an excellent day for an Exorcism... SCI/Kenyon

    by DianeL on Sun Dec 18, 2005 at 02:16:34 PM PST

  •  Slippery Slope (none)
    Why is is that the supporters of GWB see a 'slippery slope' that threatens traditional marriage by allowing gays to marry, even though they cannot point to a single instance in history where allowing homosexual unions has lead to the abolition of any rights for heterosexual couples?

    And why is it they cannot see a slippery slope here, where there are any number of instances in history that can be pointed out where overzealous governmental scrutiny in the name of national defense has lead to serious and widespread human rights abuses?

    I carried water for the elephant; Back and forth to the well I went; My arms got sore and my back got bent; But I couldn't fill up that elephant

    by Sylvester McMonkey Mcbean on Sun Dec 18, 2005 at 03:09:01 PM PST

  •  Good post... (none)
    ...thank you, Armando.

    The Yoo/Bybee positions are farcical on their face.  The idea that the Executive possesses completely unenumerated power, regardless of the law of the land (including the Constitution) is outrageous.

    The implication would be that as long as we have troops engaged in any military conflict overseas, it could be called a war by the Executive, which would give the President supreme power to ignore any laws.  The President could decide to dissolve Congress, jail judges, imprison people based on their race/ethnicity, with total impunity for the law.  

    Sure, the SCOTUS ruled that the President could do exactly that, 6-to-3, in Korematsu v. US, 1944. But Congress subsequently specifically rejected this view of war powers and stipulated their legislative intent that such completely "unenumerated" executive privilege did not exist in wartime (see Personal Justice Denied, 1983).

    (Fred Korematsu's case, by the way, is an instructive example, I think.  The gentleman also passed away this spring.)

    Similarly, the President could maintain a position of perpetual, "legalized" autocracy simply by keeping our armies engaged overseas at "war".  If the "War on Terror" is a perpetual war (as it appears to be formulated, then the President is suggesting that we will forever be in a position where he could suspend the US Constitution at any time.

    There's no way that this is a fair interpretation of war powers.  As I say, outrageous.

    Speaking of which, this is breach of law that far outweighs Clinton's perjury or Nixon's illegal acts, in my opinion.  Those were illegal and wrong (to varying degrees, depending upon whom you ask, granted).  

    But the idea that our President launched a pre-emptive war based on false intelligence and is using the state of war to imbue his position with supreme power over the nation (all three of which he now admits) is deadly serious business.

    And the result is rolling back Constitutional rights to due process and privacy, including habeas corpus and protection from torture.

    This sounds like a pretty clear cut case of a crime, and one which threatens the very fabric of our country.  It clearly deserves hearings, and I'm glad Sen. Specter has gone on the record calling this wrong and promising to stage hearings early next year.

    Based on the hearings, if the Dems win the House in '06, I would not be surprised to see impeachment proceedings begin.

  •  Liars. (none)
    I know I sound like a broken record on this, but the simple fact that anyone actually listens to anything spewed by the Bush Administration and their supporters in the GOP absolutely amazes me. Practically 90% of everything they say and do is based on lies and we know it.

    The media is just as complicit in this B.S. as the Bush administration is. Look no further than the N.Y. Times itself.

    America is currently operated by an anti-democracy cabal of liars.

    It's. That. Simple.

    It isn't this side versus that side. It isn't about a difference of opinion. It isn't about how we intrepret previous law or legal opinions. It's about the fscking truth. The "other side" isn't offering a difference of opinion. It's offering a lie; they know it; they know we know it; and they don't care.


  •  Now i'm confused (none)
    There was a political party around here somewhere that proclaimed "limited government" as a primary goal, and fervently denounced any increase in federal function, such as safety inspection for factory workers, as "evil socialism". Where'd that party go?
  •  Am I in bizzaro world?! (none)
    I'm sorry, perhaps I'm halucinating but did the President of the United States give a radio address in which he admitted outright to violating U.S. law and declared his intention to continue to do so?


    •  The Law ?? (none)
      " Don't wave the Constitution in my face it's just a goddamn piece of paper!" GWB 2005

      Bu$hCo uses the constitution to wipe it's ass daily.

      "It's better to die on your feet then live on your knees"

      by Blutodog on Sun Dec 18, 2005 at 06:13:58 PM PST

      [ Parent ]

  •  You're Wrong Armando (4.00)
    Article 1, Sections 1 and 2 of the Constitution says nothing at all about the executive.  Article 1 concerns the legislature, I think you're thinking about Article 2.  I wouldn't point this out usually, but part of the power of your diary (which is great overall) is that you've checked the facts behind the Bybee Memo and it inspired me to do my own fact checking.

    Socially Just, Fiscally Responsible: Freedom Democrats.

    by LoganFerree on Sun Dec 18, 2005 at 06:16:06 PM PST

  •  USPATRIOT act debate irrelevant? (none)
    Is it just me or does the BushCo/Yoo stance render all the tempest in that teapot irrelevant?  That is, given unchecked Executive power (in their view of the framer's intent), does it matter at all whether the several provisions of the reauthorization bill are approved?  I think not.

    Given that King George has declared his administration and its acts to be above the law, why bother with the USPATRIOT act reauthorization fight?

    In that light, isn't the whole 'debate' another instance of distracting the electorate with Bright Shiney Objects?

    Feingold could put their feet to the fire with a resolution that offerred to end the filibuster if it were worded (somewhat) as follows:

    WHEREAS The Executive has usurped and taken unto itself all legislative powers governing intelligence and military assets useful for prosecution of the Global War On Terror; and

    WHEREAS The Executive has deemed the Judicial branch of government to be an anachronistic impediment to the ability of the Executive to prosecute the ongoing Global War On Terrorism; and

    WHEREAS The Executive foresees no predictable timeframe or context in which the Global War On Terrorism might be terminated;

    BE IT THEREFORE RESOLVED that all legislative and judicial functions as initially envisioned by our founding constitution, as well as the corresponding oversight responsibilities (heretofore known as Checks and Balances), be ceded to the Executive branch until such time that the Executive declares cessation of hostilities in the Global War On Terror;

    FURTHERMORE, such declaration shall require and be deemed in effect only with approval duly recorded by a two thirds majority of Executive branch appointees.

    It's cool to make up rules and I'd have done it earlier in my life, I just didn't know it was That F%$cking EASY!


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