[T]here were "times when you have to go above the written law."
And defenders of President Bush's disregard of FISA have adopted this Fawn Hall defense. Of course, Vice President Dick Cheney does not put it exactly that way. Instead he argues that the President is above the law:
Geoffrey Stone, a law professor at the University of Chicago, said he found the issue straightforward, at least as regards surveillance by the National Security Agency. "Some legal questions are hard," Stone said. "This one is not. The president's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."
Cheney took the opposite view, noting that he has been expressing his views on the subject as far back as 1987 when, as a member of the House, he contributed to the minority views in the congressional report on the Iran-Contra scandal. "Part of the argument in Iran-Contra was whether or not the president had the authority to do what was done in the Reagan years," he said. "And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters." Asked if the proper balance had been restored under Bush, he said, "I do think it's swung back."
There it is. Cheney is not only unapologetic or circumspect about breaking the law, he is PROUD of it. He thinks that the Congressional condemnations of the Reagan Administration for the Iran Contra Scandal were not only wrong headed, they were harmful! And that's not all:
Cheney suggested that Democrats who push to reduce the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price. "Either we're serious about fighting the war on terror or we're not," he said. "Either we believe that there are individuals out there doing everything they can to try to launch more attacks, try to get ever deadlier weapons to use against us or we don't. The president and I believe very deeply that there is a hell of a threat."
Well, Mr. Vice President, either we are serious about following the Constitution and the law or we are not. Either we believe the Constitution is the supreme law of the land and no person is above the law, or we don't. I believe the Bush Administration is a hell of a threat to the rule of law and the Constitution. And I don't care if there is a political price for saying so.
Here are the REAL questions the Media needs to ask: How long will the War on Terror last? And what laws are applicable during this period? The Bush Administration gave this answer on how long the War on Terror will last:
Given the chance to talk to the defense secretary, one solider from the 101st Airborne Division asked what was on the minds of many: When will the worldwide fight against terrorism be over? "I mean, should I get my 3-year-old ready for air assault school?" the soldier asked Defense Secretary Donald H. Rumsfeld during an Iraq tour last month.
"I wish I could give you a date, but I can't," Rumsfeld said. That would be like estimating when a town will no longer need firefighters or police, he told the soldier.
Privately, administration officials have said for months that they see the anti-terrorism fight as a decades-long struggle similar to the Cold War that dominated the second half of the 20th century.
So the question the Media needs to ask is 'is the Constitution now indefinitely suspended?' And when did we decide to do that? Is that what the Congress did on September 14, 2001 when it passed the AUMF? Is that the Bush Administration's argument? The authorization says:
[T]he 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.
So does the Bush Administration think that was Congress' suspension of the Constitution? Actually, the answer is no:
[I]t should be noted here that the Joint Resolution is somewhat narrower than the President's constitutional authority. The Joint Resolution's authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks. Nonetheless, the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.
"Whatever action [the President] deems appropriate." Including disregarding the law and the Constitution. Those are chilling words. The Bush Administration's views are indefensible and unsupported. I'll explain again why below the fold.
The sum of this analysis is best exemplified by this quote from the Hamdi case:
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
And indeed, the cases and opinions most favorable to the Administration's case NEVER even consider the preposterous Fawn Hall Republican view that the President can disregard federal law. For example, in Dames & Moore v. Regan, Justice Rehnquist wrote:
Justice Jackson in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and exclusive power of the President" but rather responded to a claim of virtually unlimited powers for the Executive by noting:
The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.
Pretty clear why Bush's defenders do not cite this case.
In United States v. Midwest Oil, where a Presidential action not in conformance with Congressionally mandated procedure was reviewed, the Court said:
Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress 'may deal with such lands precisely as an ordinary individual may deal with farming property. It may sell or withhold them from sale.'
. . . The Executive, as agent, was in charge of the public domain; by a multitude of orders extending over a long period of time, and affecting vast bodies of land, in many states and territories, he withdrew large areas in the public interest. These orders were known to Congress, as principal, and in not a single instance was the act of the agent disapproved.
It's pretty obvious why defenders of the Bush Administration do not cite this case also. The idea of the President as an agent of the Congress, subject to its direction, is precisely what they argue against.
The dissent in Youngstown also offers no solace to Bush defenders:
In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised. Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.
Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to "maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, . . . ." In 1950, when the United Nations called upon member nations "to render every assistance" to repel aggression in Korea, the United States furnished its vigorous support. For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The "determination of the United Nations to continue its action in Korea to meet the aggression" has been reaffirmed. Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as hereinafter described.
. . . Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant's brief informs us that the Soviet Union maintains the largest air force in the world and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mutual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace.
Even this brief review of our responsibilities in the world community discloses the enormity of our undertaking. Success of these measures may, as has often been observed, dramatically influence the lives of many generations of the world's peoples yet unborn. Alert to our responsibilities, which coincide with our own self-preservation through mutual security, Congress has enacted a large body of implementing legislation. As an illustration of the magnitude of the over-all program, Congress has appropriated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea.
. . . Congress also directed the President to build up our own defenses. Congress, recognizing the "grim fact . . . that the United States is now engaged in a struggle for survival" and that "it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour," granted authority to draft men into the armed forces. As a result, we now have over 3,500,000 men in our armed forces.
Appropriations for the Department of Defense, which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952. . . . The bulk of the increase is for military equipment and supplies - guns, tanks, ships, planes and ammunition - all of which require steel.
. . . Congress recognized the impact of these defense programs upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950, Congress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement of labor disputes arising in the defense program. The Defense Production Act was extended in 1951, a Senate Committee noting that in the dislocation caused by the programs for purchase of military equipment "lies the seed of an economic disaster that might well destroy the military might we are straining to build." . . . Since Korea, the tremendous military demand for steel has far exceeded the increases in productive capacity.
. . . The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. Accordingly, when the collective bargaining agreements between the Nation's steel producers and their employees, represented by the United Steel Workers, were due to expire on December 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel production.
. . . After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order:
"WHEREAS on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and
"WHEREAS American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against aggression; and
"WHEREAS the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great extent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and
. . . "WHEREAS a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and
. . ."NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:
"1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation. . . ."
The next morning, April 9, 1952, the President addressed the following Message to Congress:"To the Congress of the United States:Twelve days passed without action by Congress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again described the purpose and need for his action and again stated his position that "The Congress can, if it wishes, reject the course of action I have followed in this matter." Congress has not so acted to this date.
"The Congress is undoubtedly aware of the recent events which have taken place in connection with the management-labor dispute in the steel industry. These events culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government.
. . . "[I]t was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that course of action.
"It may be that the Congress will deem some other course to be wiser.
. . ."It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract
. . . "It may even be that the Congress will feel that we should permit a shut-down of the steel industry, although that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security.
"I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine.
"It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable.
"On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals which the Congress may wish to consider.
"If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settlement of the dispute so the mills can be returned to their private owners as soon as possible."
. . . Plaintiffs do not remotely suggest any basis for rejecting the President's finding that any stoppage of steel production would immediately place the Nation in peril. . . . Plaintiffs' counsel tells us that "sooner or later" the mills will operate again. That may satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming - "sooner or later," or, in other words, "too little and too late."
Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.
Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government.
. . . In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs," and that "[i]ts means are adequate to its ends." Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations.
It's quite clear why this opinion is not cited by Bush's defenders. At the height of the Korean War, with a draft instituted, with the United States having suffered 108,000 casualties, with the Cold War in full roar, with a clear finding that steel production was essential to the national defense -- even with all that - the President of the United States and the dissent defending his actions, acknowledge that his actions were subject to Congressional restraint.
The dissent took the position that, absent Congressional prohibition, given the state of emergency prevalent, the President could act as he did. The opinions in the majority believed that the Congress had prohibited the President's action by implication.
No one, including President Truman, argued that the President could act contrary to federal law. No one ever has in serious fashion.
Until now. Until the rise of the Fawn Hall Republicans, led by Dick Cheney.