Politics Thursday: Defending the Republic â€&#822

Last week, I explained why I wrote my Congressional delegation asking them to censure the President. Along with my explanation why I thought allowing any President the power to selectively set aside laws was bad, I quoted from a number of conservative critics of the President's actions, including Bob Barr, one of the Clinton Impeachment managers.

Maybe it was the holiday, but that post brought zero comments. I didn't hear from anybody writing letters of their own and neither did I hear from our pro-Bush corner. I'm hoping that some of you across the political spectrum will go back and read last Thursday's posting and offer your answer to the question:

Should the President be able to pick and choose which laws his administration will obey?

Before you answer, understand that the next year will answer this question for ALL presidents, not just President Bush. If you answer yes, you are in effect saying.

I believe that President Hillary Rodham Clinton should be able to pick and choose which laws her administration will obey.

Or possibly:

I believe that President John F. Kerry should be able to pick and choose which laws his administration will obey.

For the record, I don't care who the President is, laws are non-optional. If the law hurts a particular aim of the administration, the remedy is to get new legislation passed. A few leaders in Congress cannot excuse the President from this duty.

If we the American people allow the President to be formally granted this kind of power by Congress (probably unconstitutional) or by Supreme Court decision, there will be no limits. Not for the President or his successors of whatever party.

Can anyone in a free society really desire such a thing? If so, why bother with Congress or an independent judiciary? Shall we simply elect an executive every 10 years and turn the Capitol into a museum?

Comments

loaded questions

You really got to lay off the spin Daniel. Just because you say what he did was illegal doesn't make it so.

Do I think President Hillary or President Kerry (HA!) have special powers during times of war especially when involving the enemy here at home. Yup.

I don't think laws were broken,...

I don't think laws were broken on presidential authority. I admit I have not read every article on the issue, but I don't see where any laws were broken on presidential order. Perhaps some overzealous NSA folks overstepped their bounds, but I put that in the same league as a police officer searching something outside the bounds of his warrant.

The NSA for as long as I can remember (and as a little kid I wanted to work for the NSA because it sounded cool... heck that is why I took calculus, trigonometry, and differential equations because the NSA wanted people with those qualifications[my grades in those classes may be why I don't work there]) has been listening in to calls to and from the United States. Of course as technology advanced calls became all electronic communications.

Times have changed since Carter signed his executive order authorizing warrantless searches, but things have not changed for the better. Now we have foreign terrorists murdering thousands of people inside our borders, we have to be much more vigilant than we were a few decades ago.

I don't think that any laws were broken, and it is important that that be made clear. Rather than censure, Congress must clarify the law so that interception of the communications at issue are clearly legal.

My personal feelings however would allow the interception of communications in the US by persons who conspire against the government, promote terrorism, or engage or conspire in terrorist acts should have their citizenship should they hold it revoked latae sententiae. If the president thinks it is necessary to listen to the telephone conversations of John Walker Lindh and his ilk I have no problem with that. Lets have our legislators make it clear that it is OK so we don't have arguments about which laws -if any- can be violated.

Re:loaded questions

So if President HRC collected gun sales data in defiance of a law that prohibited the practice you would be ok with that?The President admitted his administration did NOT use FISA, which specifically states that any use of electronic surveillance of US Citizens not undertaken by the procedures in FISA or by the regular criminal wiretapping statutes is a felony.That law is broken. Period.The President's ASSERTION is that his CiC powers and an interpretation of the 2001 use of force against Afganistan allow him to set FISA aside.That is his defense against his admitted felony. It remains to be seen by a court whether that holds up.

Re:I don't think laws were broken,...

If Congress has to fix the law, that implies that the current law was not followed.I have BIG problems with stripping citizenship from people without trial as you suggest, especially on something as vague as "promoting terrorism." That could cover all sorts of activities including peaceful protests against government policy.If enough people in this country want to grant the President unchecked powers, we should have a constitutional amendment making the executive superior to the other two branches of government.Finally, to both you and Greg, Wartime necessity doesn't cut it in an undeclared war of unlimited duration. What is victory in the "war on terror"? If it is the elimination of every human being that may do violence to American citizens or property, it will never end. Some will always hate us and wish to do us harm.

Perhaps it would be better if you read Bob Barr

How about you read what lawyer and former Clinton Impeachment Manager Bob Barr has to say about the President's NSA conduct? Here's a bit that's representative of the article:

Accused of breaking the law in the current debate over electronic spying, President George W. Bush has, in his own way, dared the American people to do something about it. For the sake of our Constitution, I hope they will.Let's focus briefly on what the President has done here. Exactly like Nixon before him, Bush has ordered the National Security Agency (NSA) to conduct electronic snooping on communications of various people, including U.S. citizens. That action is unequivocally contrary to the express and implied requirements of federal law that such surveillance of U.S. persons inside the U.S. (regardless of whether their communications are going abroad) must be preceded by a court order. General Michael Hayden, a former director of the NSA and now second in command at the new Directorate of National Intelligence, testified to precisely that point at a congressional hearing in April 2000. In response, the President and his defenders have fallen back on the same rationale used by Nixon, saying essentially, "I am the Commander in Chief; I am responsible for the security of this country; the people expect me to do this; and I am going to do it." But the Supreme Court slapped Nixon's hands when he made the same point in 1972.

In last Thursday's entry, I quoted several other conservatives who also believe, based on available evidence, that President Bush broke the law and must be held accountable. It's not just me and it's not a right/left issue. It's an issue of the rule of law.

Re:Perhaps it would be better if you read Bob Barr

This is dissimilar to Nixon (and Bob Barr and I don't agree on too much perhpas the NRA). Remember there were attacks on Americans (among others) on US soil. I think Bush is authorized, both by law and by previous Executive Orders to have the NSA monitor international phone calls. Geez, Clinton had the Echalon program monitoring calls in the US and there was not the uproar that there is now.

While some conservatives may think that Bush broke the law, I don't. It really does not matter what anyone but a judge thinks, and I doubt that it will ever come to that.

I give up more rights to board a commercial airliner than I do by making international calls. I'm not afraid that some computer is going to pick up be saying blow up the USA (like it just did) and take it out of context and lead to me being thrown into a prison camp.

Perhpas if Democratic Senator Carl Levin would stop holding up Negroponte's legal counsel's appointment the things that appear to be illegal to some could be clarified and shown to be perfectly acceptable as some conservatives, myself included.

Re:I don't think laws were broken,...

If the law has to be fixed it does not mean it was broken, it simply means the law was ambiguous and needed to be clarified.

What I would like and what will really happen are two different things, of course people can't have their citizenship stripped from them without due process.

This is the most unusual war the nation has ever been in. We knew the enemy in the World Wars, and even in Korea and Vietnam. We could even identify the enemy in the Cold War, but in the war on terrorism we have such a nebulous enemy, one that we can't pin down to a location, a particular person, or an easily identifiable group. Someone will always hate the USA and want to do us harm.

I think that we may be on the same page though. I don't want any president Clinton, Bush or Washington breaking the law. I'm comfortable with what the NSA is doing with international calls and calls of foreign nationals, I gather you are not. However if Congress clarifies the postion then we need not have any presidents breaking any law.

Re:loaded questions

"So if President HRC collected gun sales data in defiance of a law that prohibited the practice you would be ok with that?"

Are you saying President Bush did this? What kind of data? From who? Of how many people?

I'm sure there are many conservatives out there who think Bush did something wrong. Doesn't make them right either. Maybe you should try and explain why anybody in the US, citizen or otherwise, who is caught having phone conversations with terrorists abroad (anything involving more then a simple 'wrong number that is) doesn't automatically forfeit any and all legal rights.

Re:I don't think laws were broken,...

"I'm comfortable with what the NSA is doing with international calls and calls of foreign nationals, I gather you are not."What I'm most concerned about is the President's statements that some Acts of Congress may be set aside if he feels that his CiC powers trump them. NSA legally monitors foreign nationals all the time and I have no problem with that. In fact, I wish they had enough translators to translate all their singal traffic in real time. If they had those kind of resources, 9/11 might have been prevented. (I blame the lack of translators on all administrations since 1947 -- except for Bush, since he didn't have time to take in the situation.)The law which the President himself said he put aside has to do with monitoring calls of Americans on American soil when calls include international contact. There is already a legal procedure to do this that doesn't require waiting for a warrent. This is the FISA statute that the President claims isn't timely enough for him. That may or may not be true, but does not relieve him of the responsibility for obeying the law until it is changed by Congress.It's not a spying issue, it is a rule of law issue.Sometimes unjust laws must be broken. But here too there is a right way and a wrong way. In his Letter from a Birmingham Jail, Martin Luther King Jr describes how to morally violate an unjust law:

In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

If the President is so convinced that FISA as currently constructed is unjust in the sense of preventing him from carrying out his duty of protecting the country, he should have said so openly and submitted himself to the law's penalty provisions while Congress changed the law.While the war on terror is a unique war, it is also very true that the terrorists will never be capabilty of destroying our country as the Soviets were and as the Nazis were possibly. For that reason, I am not willing to cast aside the Constitution that saw us through more the 200 years of mortal threats to our nation for the HOPE of more security.Even if we become as repressive as Middle East countries like Jordan, we will have terrorism on our soil. Secretary of State Rice said so just last month on a visit to Jordan. No matter what we do, they only have to be right once.So if we are going to have a level of attacks no matter what, I'll take liberty and the rule of law.

HRC & Guns / Explain flaws in reasoning

Greg,My point with:"So if President HRC collected gun sales data in defiance of a law that prohibited the practice you would be ok with that?"Wasn't to accuse the President of doing so (though we wouldn't know if he was). It was to provide an example of how another President might use the theorized CiC power to set aside laws Congress passed in order to better hunt terrorists and other disturbers of the peace. I'm sure HRC could justify keeping tabs on gun sales by saying that no one but a terrorist could possibly need more than three semi-automatic weapons or that a rash of gun sales near a mosque might neccesitate government investigation.Really though, it's hard to think of any measure that could be proposed by the President that couldn't somehow be related to his or her function as Commander in Chief and thus, in the eyes of President Bush, immune to check from either Congress or the Judicial branch. That's too much power for any human being. If we are to remain a republic and not an elected monarchy (at best), we (Congress and the American People) have to put our foot down now.I notice that none of your posts (unlike mdoneil's) have explained your faith in the President's total innocence, or have countered any of the reasoning that I've pointed to.I invite you again to look at Bob Barr's analysis, the meat of which is below, and explain to me what is wrong with his reasoning:

When President Bush explained, over the course of three days, his administration's secret interception of communications involving American citizens without court approval, he repeatedly cited three authorities for such action. One of these was Article II of our Constitution, which provides authority for the president to serve as commander in chief of the armed forces. Not relying on my memory — which has proved faulty from time to time (rarely, of course) — I reread Article II to determine if in fact there was language in it that I had missed previously, that when the president serves as commander in chief, he can order federal agencies to violate the law.Of course, I found no such authority, because none exists. Such was never even presumed to be implied by the drafters of that magnificent document. In fact, federal courts — which over the decades have deferred greatly to the power of the president when he takes action involving national security — have never held that when a president dons the hat of commander in chief he simultaneously is immunized from having to follow the laws of the land or of the other provisions contained in the Constitution, including the Bill of Rights. ....To be fair, the president did cite other authority in support of his assertion that he can order surreptitious surveillance of our citizens without following the laws that govern such actions.First, he claims his "responsibility to protect the country" subsumes the authority to order surveillance of American citizens in contravention of the law. Of course, there is no "responsibility-to-protect-my-people" exception to the rule of law or the applicability of the Bill of Rights anywhere in the Constitution, or in any prior decision of any federal court.The president also refers repeatedly to the resolution passed by the Congress in the first days following the attacks of Sept. 11, 2001, as establishing his power to order the surveillance now at issue. However, a reading of that resolution, whether cursory or in-depth, reveals no such authority, explicit or implied. The resolution simply authorized the president "to use all necessary and appropriate force" against those responsible for planning, carrying out or assisting in the attacks of Sept. 11. The resolution went on to provide that such "necessary and appropriate force" might be used to prevent future acts of terrorism. Importantly, the resolution provided no authority whatsoever for any actions on the part of the president beyond authorizing the use of force.To cite this resolution as authority to override specific federal laws that prohibit the surreptitious interception of communications of American citizens represents neither sound legal argument nor honest public policy.

There are other examples of reasoning from others that I could and did cite a week ago Thursday. If you don't like Mr. Barr's, take one of the others.But you will need either a specific statutory authority (i.e. one that mentions electronic surveillance) or some other case where the President voided a federal statute on his own and was upheld by the Supreme Court to convince me that President Bush did not violate federal law.I believe this is an issue of rule of law, not national security. And freedom has risks. If we're not willing to take those risks anymore, we should amend our Constitution accordingly. We should be explicit on what we're giving up in a war without end.

Maybe you'll take CRS lawyers seriously?

Here's another item to look through before you once again claim that the President broke no law.Congressional Research ServiceMemorandum January 5, 2006SUBJECT: Presidential Authority to Conduct Warrantless ElectronicSurveillance to Gather Foreign Intelligence InformationFROM: Elizabeth B. Bazan and Jennifer K. ElseaLegislative AttorneysAmerican Law Division

From the foregoing analysis, it appears unlikely that a court would hold that Congresshas expressly or impliedly authorized the NSA electronic surveillance operations here underdiscussion, and it would likewise appear that, to the extent that those surveillances fall withinthe definition of “electronic surveillance†within the meaning of FISA or any activityregulated under Title III, Congress intended to cover the entire field with these statutes. Tothe extent that the NSA activity is not permitted by some reading of Title III or FISA, it mayrepresent an exercise of presidential power at its lowest ebb, in which case exclusivepresidential control is sustainable only by “disabling Congress from acting upon thesubject.†While courts have generally accepted that the President has the power to conduct 141domestic electronic surveillance within the United States inside the constraints of the FourthAmendment, no court has held squarely that the Constitution disables the Congress fromendeavoring to set limits on that power. To the contrary, the Supreme Court has stated thatCongress does indeed have power to regulate domestic surveillance, and has not ruled on 142the extent to which Congress can act with respect to electronic surveillance to collect foreignintelligence information. Given such uncertainty, the Administration’s legal justification,as presented in the summary analysis from the Office of Legislative Affairs, does not seemto be as well-grounded as the tenor of that letter suggests.

There's 44 pages of analysis, so feel free to point out problems elsewhere in the document.

Re:HRC & Guns / Explain flaws in reasoning

On your second post, I have no idea who those people are. Everyone has an agenda and anyone can talk ad nauseum about their view of it. If it takes 44 pages to make their case then their blowing smoke to make it look like a fire.

Really though, it's hard to think of any measure that could be proposed by the President that couldn't somehow be related to his or her function as Commander in Chief and thus, in the eyes of President Bush, immune to check from either Congress or the Judicial branch.

That's very true. But that's not what is happening. The President made a very specific decision related to a very specific type of problem. You tell me why its okay to tap a foreign phone call involving terrorists but not okay to monitor the side of the conversation happening in the United States. Its an act of treason in a time of war and that person has no rights.

Re:Maybe you'll take CRS lawyers seriously?

Did you read all 44 pages? If so, then you will see that the CRS report on page 42 also claims that:

Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President's authorization, which are for the most part classified.

It is nice to cherry-pick, isn't it? Here is another one from page 8:

As communications
technology has advanced, the technology for intrusion into private conversations has kept
pace, as have government efforts to exploit such technology for law enforcement and
intelligence purposes. At the same time, the Court has expanded its interpretation of the
scope of the Fourth Amendment with respect to such techniques, and Congress has legislated
both to protect privacy and to enable the government to pursue its legitimate interests in
enforcing the law and gathering foreign intelligence information. Yet the precise boundaries
of what the Constitution allows, as well as what it requires, are not fully demarcated, and the
relevant statutes are not entirely free from ambiguity.

Kinda sounds like things are a bit ambiguous. More on page 14:

In other words, if FISA, together with Title III, were found to occupy the field, then for a court to sustain the President's
authorization of electronic surveillance to acquire foreign intelligence information outside
the FISA framework, FISA would have to be considered an unconstitutional encroachment
on inherent presidential authority. If, on the other hand, FISA leaves room for the NSA
surveillance outside its strictures, then the claimed power might fall into the first or second
categories, as either condoned by Congress (expressly or implicitly), or simply left
untouched.

Sounds like more uncertainty. More from page 30 when the CRS attorneys cite In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002):

This constitutional authority to order warrantless foreign intelligence surveillance within
the United States, as all federal appellate courts, including at least four circuits, to have
addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 717, 742
FISA Ct. of Review 2002) (“[A]ll the other courts to have decided the issue [have] held
that the President did have inherent authority to conduct warrantless searches to obtain
foreign intelligence information . . . . We take for granted that the President does have
that authority . . . .â€).

Even though it sounds like it is up in the air, a Federal Court of Appeals has ruled on something. You must remember, a Federal Court interprets the law and the CRS doesn't. More from page 44:

Court cases evaluating the legality of warrantless wiretaps for foreign intelligence
purposes provide some support for the assertion that the President possesses inherent
authority to conduct such surveillance. The Court of Review, the only appellate court to
have addressed the issue since the passage of FISA, “took for granted†that the President has
inherent authority to conduct foreign intelligence electronic surveillance under his Article
II powers, stating that, “assuming that was so, FISA could not encroach on that authority.â€
However, much of the other lower courts' discussions of inherent presidential authority
occurred prior to the enactment of FISA, and no court has ruled on the question of
Congress's authority to regulate the collection of foreign intelligence information.

How about that? You know this is a separation of powers issue that hasn't been resolved. Separation of powers cases are a struggle between the branches of government and who knows how they will be decided. There are prominent legal scholars on both sides of the political spectrum that have weighed in on this situation. Some are well reasoned and some are not. This CRS Report reinforces the notion that this question is up in the air and gives no answer to the question. I tend to agree with the analysis of Cass Sunstein (that famously red-meat conservative from the University of Chicago Law School). Check out his December 20 analysis here:

http://uchicagolaw.typepad.com/faculty/2005/12/pre sidential_wi_1.html

You don't have to be a lawyer to understand the report, you just have to have the ability to read the whole report.

Re:Maybe you'll take CRS lawyers seriously?

Here is that famously left-wing law professor Orin Kerr on the CRS Report:

The Congressional Research Service has published a report analyzing the DOJ letter sent to the Intelligence Committee on the NSA surveillance program. The CRS report is quite narrow. To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program. The CRS report is appropriately cautious, too. It acknowledges that we don't have enough facts yet to analyze the legality of the program. I hope to post more on that, and some of my further ruminations on the NSA program, at some point over the next few days.

Re:HRC & Guns / Explain flaws in reasoning

1) I firmly believe that terror can and should be fought without practicing Presidential nullification. If the President has power to cancel one federal statute by a "higher authority", he has the power to cancel any statute. This is what I mean by a rule of law issue.2) Rights are not the gift of any state, but are endowed by our Creator. This is was the stated belief of the signers of the Declaration of Independence and the belief of my Christian faith. I hold with both.3) As the handful of releases from Gitmo and the hundreds of releases from Abu Gharib show, just because our government THINKS someone might be a terrorist, that does not mean that person is a terrorist.4) Allowing the state to designate certain people or groups as automatically without rights without due process is a recipe for tyranny and one I won't stand for.

Re:Maybe you'll take CRS lawyers seriously?

In hopes that the same anonomyous patron posted both posts:I accept your analysis that the Congressional Research Service treats the President's actions as an unsettled issue.However, I believe what they are saying is that there is doubt over whether the President's violation of the letter of FISA can be justified either by CiC powers or by the 2001 AUMF. If so, then the President's action of setting aside Acts of Congress would be legalized.But I don't see doubt that the letter of FISA itself was broken, unless NSA wasn't engaged in electronic surveillance.I'd also be interested in your take on Bob Barr's analysis of the current controversy. Link is above.Also, the CRS Report should be enough to give pause to the defenders of the President that he absolutely did not break the law. As you say, it is an open question. At minimum we should have some serious investigations, possibly by a special prosecutor.Ultimately though, a court victory that allowed the President to set aside laws in the future without recourse to the courts would be very bad for the republic. It would amount to a practice of Presidential nullification.

Weekly Standard good enough for you?

A recent article in the Weekly Standard conceded that the President broke federal law, but needs to (emphasis mine):

We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up.Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

Although I obviously disagree with the Weekly Standard's endorsement of Presidential nullification during a "war" without end, I welcome the intellectual honesty of showing us the clear issue - "Sure the President broke the law, WE NEED one-man rule."

Re:Weekly Standard good enough for you?

I like this quote better...

"Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws. In the current dispute over executive surveillance of possible terrorists, those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped. The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution."

In the end its just semantics but I understand what they mean.

Re:Weekly Standard good enough for you?

Thanks for reading the full Weekly Standard article.In quoting approvingly of (Emphasis mine):

The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution."

I have four questions for you:1) Are you conceding that the President's actions violated federal statutes? Even though these violations may ultimately be upheld as constitutional by the courts? This appears to be the view of the Weekly Standard.2) In what ways do you feel the "president can be held accountable and made responsible"? I speak in general - not of President Bush in particular. How can such accountability take place if the conduct is classified and knowledge restricted to a single Congressional committee? If Congress can take no action, then where is the accountability?3) You, the Weekly Standard, and many other of the President supporters make frequent reference to "emergency powers" for the "duration of the war", but how does this apply to a war on terror that the President and his advisors view as permanent? When "emergency" becomes permanent, isn't the right course to amend the Constitution rather to rely on a generations-long "emergency"? If we are to transition to "one man rule" as the Weekly Standard endorses, should that not be a conscious choice of the American People and not something brought to light by a newspaper article?4) If you disagree with me that the war on terror will be a permanent condition, under what circumstances can we conclude that the war on terror is finished and the President must relinguish his "emergency powers"?

Re:Weekly Standard good enough for you?

1) Are you conceding that the President's actions violated federal statutes? Even though these violations may ultimately be upheld as constitutional by the courts? This appears to be the view of the Weekly Standard.

Does that even make sense to you? You can't violate a law and still be constitutional. Its why I mentioned semantics before. Its only illegal if it was done in an effort either to a. stop a criminal or b. do something nefarious like Whitewater. Because it was an issue of war and national defense whatever statutes that were supposedly violated probably don't even apply.

2) In what ways do you feel the "president can be held accountable and made responsible"? I speak in general - not of President Bush in particular. How can such accountability take place if the conduct is classified and knowledge restricted to a single Congressional committee? If Congress can take no action, then where is the accountability?

If I was a congressman on that committe and I had reservations about what the President was doing I would say the following: "Mr. President I understand why you are doing this but I feel you are violating the law by doing it. You have your responisbilities I have mine. We either bring in members of the Supreme Court or other members of Congress into this loop to discuss this and decide whether this should in fact be done or I go outside right now and talk to the first reporter I see. It's your call."

3) You, the Weekly Standard, and many other of the President supporters make frequent reference to "emergency powers" for the "duration of the war", but how does this apply to a war on terror that the President and his advisors view as permanent? When "emergency" becomes permanent, isn't the right course to amend the Constitution rather to rely on a generations-long "emergency"? If we are to transition to "one man rule" as the Weekly Standard endorses, should that not be a conscious choice of the American People and not something brought to light by a newspaper article?

Where did they endorse one man rule? Where did they say this emergency was permanent? Why does wiretapping someone in contact with foreign terrorists constitute a Constitutional emergency?

4) If you disagree with me that the war on terror will be a permanent condition, under what circumstances can we conclude that the war on terror is finished and the President must relinguish his "emergency powers"?

When the Middle East is more democratic then undemocratic or until one of these little tinpot dictators gets enough nukes to blow everybody up and then does.

Re:Weekly Standard good enough for you?

Does that even make sense to you? You can't violate a law and still be constitutional. Its why I mentioned semantics before. Its only illegal if it was done in an effort either to a. stop a criminal or b. do something nefarious like Whitewater. Because it was an issue of war and national defense whatever statutes that were supposedly violated probably don't even apply.

I do not understand case a "stop a criminal." Please explain.The phrase "Emergency action of this kind may be illegal but it is not unconstitutional;" is the Weekly Standard's. I hold that violating enancted law that has not be held unconstitutional by the courts is unconstitutional. But the Weekly Standard says that conduct that violates statute may eventually be constitutional.

If I was a congressman on that committe and I had reservations about what the President was doing I would say the following: "Mr. President I understand why you are doing this but I feel you are violating the law by doing it. You have your responisbilities I have mine. We either bring in members of the Supreme Court or other members of Congress into this loop to discuss this and decide whether this should in fact be done or I go outside right now and talk to the first reporter I see. It's your call."

So if the President says "This is legal under my authority as CiC and so we don't need anyone else's opinion", you would support Members of Congress exposing classified information as long as they were doing so as part of their oversight activities? If so, I'm with you. But I'd expect you not to call for the head of a Member of Congress who did so. We can assume the White House will.

3) You, the Weekly Standard, and many other of the President supporters make frequent reference to "emergency powers" for the "duration of the war", but how does this apply to a war on terror that the President and his advisors view as permanent? ....Where did they endorse one man rule? Where did they say this emergency was permanent? Why does wiretapping someone in contact with foreign terrorists constitute a Constitutional emergency?

I said W.S., you, and other of the President's supporters. It is the President, Vice-President, Secretary of Defense, and others who have said that the War on Terror is likely unlimited in duration. Vice-President Cheney went as far to say, "It is different than the Gulf War, in the sense that it may never end. At least, not in our lifetime."As far as one man rule, I think the Weekly Standard makes that endorsement by saying "those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped." If the President can't be stopped, only his rule matters.Finally, the issue isn't spying. It isn't even warrentless spying -- WE HAVE LAWS FOR THAT. It is the President's assertion that he can nullify laws that he finds too troublesome in his work -- without even notifying anybody about the nullification. This is a recipe for tyranny that I will not support.

4) If you disagree with me that the war on terror will be a permanent condition, under what circumstances can we conclude that the war on terror is finished and the President must relinguish his "emergency powers"?When the Middle East is more democratic then undemocratic or until one of these little tinpot dictators gets enough nukes to blow everybody up and then does.

How do you measure democracy?

Re:Maybe you'll take CRS lawyers seriously?

I am the anonymous poster. A couple of things:

1. I'm glad your backed off the idea that the CRS Report was the definitive word on this issue. So if this issue is unsettled why censure the President?

2. I have to say that I really dislike it when other people think they definitively know what they are talking about when they discuss this particular issue. This is some pretty complex constitutional law and there are lots of real experts (rational reasonable minds who happen to reside on both sides of the aisle) who are rather modest in their analysis of this issue. These reasonable and rational experts have really refrained from making any strong assertions about this issue. Perhaps some should take a cue from that and refrain from jumping to any conclusions (especially those who really aren't that knowledgeable about the subject and those who haven't even read everything). This includes refraining from calls for censure or the like.

3. So Bob Barr is your new best buddy? Did you respect his opinion, say back in 1998? I like Bob Barr but he is just like a lot of other political beings regarding this issue and it shows that some people interpret this differently. Cass Sunstein is a pretty left-leaning law professor and he is no fan of President Bush; however, he sees things differently.

4. The media (newspapers, cable news and pundits) shows itself to be pretty lacking in any deep analysis of this issue.

That is all.

Re:Maybe you'll take CRS lawyers seriously?

3. So Bob Barr is your new best buddy? Did you respect his opinion, say back in 1998? I like Bob Barr but he is just like a lot of other political beings regarding this issue and it shows that some people interpret this differently. Cass Sunstein is a pretty left-leaning law professor and he is no fan of President Bush; however, he sees things differently.

As a matter of fact, I supported the Clinton impeachment. In that case a President was breaking the law on a personal matter (perjury), but the principle is the same was the same. No one is above the law.If you look at Mr. Barr's biography, I think you'll agree he has more weight on criminal and intelligence matters than many other politicians:

Bob was appointed by President Reagan to serve as the United States Attorney for the Northern District of Georgia (1986-90), and served as President of Southeastern Legal Foundation (1990-91). He was an official with the CIA (1971-78), and practiced law for many years. He currently serves Of Counsel with the Law Offices of Edwin Marger, with a national and international practice in both civil and criminal law.

If you have reason to believe any other above positions are faked, let me know.I will work with and support anyone who works for transparency, the rule of law and civil rights and liberties.

4. The media (newspapers, cable news and pundits) shows itself to be pretty lacking in any deep analysis of this issue.

You may have a point taking the media as a whole.

Re:Weekly Standard good enough for you?

I do not understand case a "stop a criminal." Please explain.

Any criminal investigation not involving terrorism.

The phrase "Emergency action of this kind may be illegal but it is not unconstitutional;" is the Weekly Standard's. I hold that violating enancted law that has not be held unconstitutional by the courts is unconstitutional. But the Weekly Standard says that conduct that violates statute may eventually be constitutional.

Which is pretty much the heart of the arguement. If you think terrorists are just another form of criminal then your going to apply the same rules as in any other criminal case. If you don't think that then the rules simply don't apply.

So if the President says "This is legal under my authority as CiC and so we don't need anyone else's opinion", you would support Members of Congress exposing classified information as long as they were doing so as part of their oversight activities? If so, I'm with you. But I'd expect you not to call for the head of a Member of Congress who did so. We can assume the White House will.

We can assume the White House will because we can assume that no such conversation happened. You're not sqealing if you warn the parties in advance. And it also hinges on the Congressman telling the reporter to use their name. Whoever leaked did it in a cowardly fashion.

Vice-President Cheney went as far to say, "It is different than the Gulf War, in the sense that it may never end. At least, not in our lifetime."

MacArthur's dead and we're still in Japan. How long have we been guaranteeing Taiwan's freedom? How long, in how many countries, in how many battles and covert operations had/have we played out a cold war with the USSR and China?

"It is the President's assertion that he can nullify laws that he finds too troublesome in his work -- without even notifying anybody about the nullification. This is a recipe for tyranny that I will not support."

Emphasis mine. Not true. Nuff said.

"How do you measure democracy?"

Let's find out.

Agree in part

We can assume the White House will because we can assume that no such conversation happened. You're not sqealing if you warn the parties in advance. And it also hinges on the Congressman telling the reporter to use their name. Whoever leaked did it in a cowardly fashion.

Sounds fair to me. Thanks for the clarification.

MacArthur's dead and we're still in Japan. How long have we been guaranteeing Taiwan's freedom? How long, in how many countries, in how many battles and covert operations had/have we played out a cold war with the USSR and China?
None of the operations above required changes in how we kept track of people at home, and thus did not create tensions with our Constitution -- except possible for the cold war operations. Some of which like Afghanistan and Iran, blew up in our faces.Troops in Japan stayed decades because they were directed towards the USSR, not because they were needed against the Japanese.

Re:Agree in part

"None of the operations above required changes in how we kept track of people at home, and thus did not create tensions with our Constitution -- except possible for the cold war operations. Some of which like Afghanistan and Iran, blew up in our faces."

We became occupiers, something apparently abhorrent to those on the Left. And it certainly had to create political tensions if not necessarily Constitutional ones. And who's to say it didn't create those either? At that time there was no one who may have called us 'imperialists' or claimed that our acts were unconstitutional?

As for operations that blew up in our faces, risk of failure goes with everything.

Re:Agree in part

"As for operations that blew up in our faces, risk of failure goes with everything."When operations are in accord with our basic values, I accept that risk. Supporting an oppresive Islamic resistance or a repressive Iranian gov't (and toppling an elected one to do so) are not, so not worth the risk.When we live to the same standard we hold the world too, things will start to change.

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