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[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.

Hamdi v. Rumsfeld.



In Federalist 26 Alexander Hamilton wrote:

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.

Article 1, Section 8 of the the United States Constitution states, in part, that the Congress will have the power:

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 . . .

Despite the clear and unmistakable words of Hamilton; despite the clear and unmistakable grant of authority to the Congress regarding the raising of military forces, the promulgation of Rules for the governing and regulation of the military, and for the declaration of war, and despite the ringing statements of the Supreme Court in Hamdi, some Conservatives and Republicans insist that the President, when acting in his capacity as Commander in Chief, has plenary power, unchecked and unfettered.

Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.

Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:

I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. In all three of those cases -- Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

. . . While the Court [has] recogniz[ed] the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.

So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.

More on the other side.

It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?

Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.

But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:

All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law.

Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:

It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review.

Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.

Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.

It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.

If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?

Originally posted to Daily Kos on Tue Dec 20, 2005 at 10:07 PM PST.

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Comment Preferences

  •  It seemed (none)
    to me that Professor Kerr was talking solely about whether the President's proposed searches violated the Fourth Amendment. And there is a colorable (one might not say winnable) but at least colorable claim that such searches are justified under the "special needs" doctrine of the Fourth Amendment, that has grown up around sobriety checkpoints, searches of closely regulated businesses, school searches, border searches, airport screenings, and drug testing regimes.
    •  Agreed (none)
      I think that's a reasonable interpretation of Kerr's remarks.  You can always say that anytime the President violates a statute, he is violating the Constitution, since the President has an obligation to take care that the laws are executed faithfully.  However, Kerr was referring to whether the President had violated the Fourth Amendment in particular.
    •  Excuse me (4.00)
      But that seems unlikely to me.

      But suppose it is true, then his analysis is ESPECIALLY disingenuous as the issue before us is the President's admitted violation of federal law, not his possible violation of the 4th Amendment.

      The SCOTUS is extraordinary.

      by Armando on Tue Dec 20, 2005 at 10:20:27 PM PST

      [ Parent ]

      •  Col Jessup, did you order the code red? (none)
        You're goddamn right I did!

        "I am not a crook" - The Honorable Richard M. Nixon

        by tricky dick on Tue Dec 20, 2005 at 10:24:08 PM PST

        [ Parent ]

      •  So (none)
        You're criticizing him for raising the question of whether the President's actions violated the Fourth Amendment?  I think it's a very good question to raise.  I don't see what's disingenuous about it at all.  You can't claim that he raises it as a red herring in order to ignore the question of whether the President violated the FISA though, since he does raise that question as well.
        •  Constitutional and illegal (none)
          Sorry chief. Extremely disingenuous.

          Since FISA allows 72 hours of warrantless searches, is the argument that Keith would lead this to be a 4th Amendment violation because there never is a warrant issued?

          I suppose that is an argument, and a valid one, but he ignores the big issue, or hides it with his word play.

          Can the President deliberately violate federal law is the BIG question. He knows it and you know it.

          We can argue about the 4th Amendment question.

          Can we seriously argue about the President having the power to deliberately violate federal law?

          His intent, in my opinion, is to pretend the waters are muddy here.

          They are not. Not even a little bit.
           

          The SCOTUS is extraordinary.

          by Armando on Tue Dec 20, 2005 at 10:36:21 PM PST

          [ Parent ]

          •  So (none)
            You think that the Fourth Amendment question is so obvious that it isn't worth raising?  I'm just trying to understand what you think is disingenuous about raising the question about the Fourth Amendment.

            I'd like to also point out that Kerr doesn't give any credence to the the administratrion's inherent authority claims.  He says:


            I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief.

            He doesn't muddy the waters.  He says that their fantasies of an Imperial Presidency are just that.

            •  The reverse (none)
              as I stated.

              The obvious issue is the President's deliberate violation of federal law. The President has committed a crime in violating FISA.

              A clear crime.

              To argue the 4th Amendment issues is to ignore the elephant in the room.

              Is there an issue? Probably. But is that REALLY the big problem here?

              No way no how.

              The SCOTUS is extraordinary.

              by Armando on Tue Dec 20, 2005 at 10:48:13 PM PST

              [ Parent ]

              •  OK (none)
                If he were a journalist writing this, then I might call this burying the lead, but people have raised the question of whether the program violates the Fourth Amendment so he bought it up.  So, Kerr doesn't treat the topics in order from most important to least important.  So what?  In your post though you make him out to be a lunatic Bush apologist who believes it's OK for Bush to violate the laws.  That just doesn't agree with what he says.
                •  Also (none)
                  There is this in the UPDATE section:


                  he interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There's a respectable argument that it does. FISA repealed Title III's reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence.

                  But that isn't Kerr writing.  That's someone who sent Kerr an email.  Kerr never says that President has an inherent power to conduct foreign-intelligence surveillance.

                •  I diagree with you (none)
                  It is my view that Kerr knew exactly what he was doing and buried the lede deliberately and with disingenuous language - to wit, "illegal but Constitutional."

                  Psst, unless you buy Yoo's thesis, it ain't Constitutional, so that is just wrong.

                  The SCOTUS is extraordinary.

                  by Armando on Tue Dec 20, 2005 at 11:03:57 PM PST

                  [ Parent ]

                  •  I agree (none)
                    It isn't Constitutional.  But I think that when he said it was Constitutional, he was referring to whether it violated the Fourth Amendment.  I think that for most people--Yoo and Gonzalez excepted--the whole idea that it can be constitutional to violate the laws is so ridiculous that someone could write "illegal but constitutional" and mean "doesn't violate the constitition in ways other than by the fact that it's illegal".

                    OK.  I think we can agree that Kerr was very sloppy, at least with the conclusions he drew.  "Illegal but Constitutional" is a stupid slogan-type summary that he should have never put in there, at least now with the Yoos and Gonzalezes running around.  You may be right.  It may have been chosen to to muddy the waters.  But the arguments show he doesn't entertain any John Yoo fantasies, and if John Yoo says he agrees with Kerr, then John Yoo probably didn't read what Kerr wrote.

            •  Fantasies of an Imperial Presidency (none)
              are just that? Boy, he sure has the art of understatement down to a science.

              Come now. That should be his lead. Instead he writes "illegal but Constitutional."

              Guess what? John Yoo agrees with him.

              The SCOTUS is extraordinary.

              by Armando on Tue Dec 20, 2005 at 10:49:55 PM PST

              [ Parent ]

              •  Basic constitutional writing style (none)
                Kerr used a typical legal writing style. Address the constitutional provisions separate from the statutory provisions.  Many people on DailyKos say "Bush clearly violated the 4th, since the 4th requires warrants for a search."  That's a false argument, and Kerr dispatches it.  Kerr then goes on to quite openly say that Bush nevertheless violated FISA.  

                Real lawyers always distinguish between Constitutional provisions and statutory provisions, regardless of whether the statutes are enacted pursuant to the Constitution.  Do you place the same weight on regulations as you would on statutes, merely because a regulation is promulgated pursuant to statute? Kerr is not an apologist for Bush on this matter, and your characterization to the contrary is flatly disingenuous.

                After your insightful initial posts on the spying issue, I thought you were actually going to discuss this matter as a lawyer.  But you've reverted to the same old name calling.

            •  It's not enough ... (none)
              ... to say that your actions comply with some provision of the Constitution and to thereby imply that they're "legal," without looking to see if there's a statutory restriction.

              The Constitution, for example, does not prohibit murder.  A defense based on the Constitutionality of murder would not be successful, because there are statutes which forbid it.

              The only way to prevail on a Constitutional defense in the face of a statutory prohibition is to argue (a) that your right to commit the prohibited act is protected by the Constitution, and thus even if the legislature could act in this area, it can't prohibit what you've done, or (b) that the statute was invalid, because the legislature exceeded its authority or the enactment was improper.

              When the President's defenders claim that he acted within the Constitution, they're simply babbling unless they mean to suggest that the President has a Constitutionally-granted right to do whatever he sees fit to exercise his authority as commander-in-chief, or that the Congress lacks any rulemaking authority that restrains that authority ... or both.

              Either way, they're asserting that George Bush has the powers of a dictator.  Because the Republicans love power more than they love liberty, I think they're gonna make it stick.

          •  Is the question correct here? (none)
            Can the President deliberately violate federal law is the BIG question.

            The answer is a resounding YES, which has been demonstrated pretty much consistently throughout US history. The question is not really whether presidents CAN violate federal law, court decisions and what have you, because they have done it frequently, the question is whether there will be any consequences to them for their violations of federal law.

            In many cases, the answer is NO.

            Yes, in two instances, Presidents were impeached -- but not convicted or removed from office, and in one instance a President was threatened with impeachment and forced to resign by his own party. Other Presidents have been criticized for their extra-legal behavior, but some have been hailed as heroes, their faces gracing money and whatnot (ie: Andrew Jackson.) Or what about St. Ronnie?

            Will Bush be held accountable -- more specifically, will he face 'serious consequences' for his violations of federal law and the Constitution? At this point, it doesn't look like it.

            We might want to ask whether there isn't something inherently wrong with the institution of the Presidency itself. We've had one 'crisis presidency' after another since the assassination of John F. Kennedy, more than a generation ago. Maybe it's the institution itself, and not the occupant.

            Or maybe Americans are just terrible at selecting presidents.

            --felix

      •  No, I think he was just being complete (none)
        in his analysis.

        Fourth Amendment - perhaps justifies the search under the special needs doctrine.

        FISA - he doesn't see where an exception applies

        AUMF - he says doesn't allow the President to overrule FISA.

        Article II - he says he can find no case law supporting the proposition that the President can act in this fashion and the case law he can find really dealt with the special needs doctrine.

        So the special needs doctrine does not overrule an act of Congres because though the action might be justifiable under the Fourth Amendment, obviously Congress can make stricter prohibitions under statutory law. There's little to no support to suggest that the President can simply overrule that law based on the statute, the AUMF, or Article II.

        •  Thorough (none)
          or burying the lead?

          Illegal BUT constitutional?

          Bah.

          The SCOTUS is extraordinary.

          by Armando on Tue Dec 20, 2005 at 10:37:13 PM PST

          [ Parent ]

          •  Or he's just going by order of authorities. (none)
            Kerr leaves open the question of whether the Congress can extinguish this power that the President might have under the Fourth Amendment through a statutory enactment in FISA. Though in an update (from an e-mailer) he seems to lend support to the idea that the Steel Seizure case would apply and there's authority that the President is bound.
            •  Fourth Amendment (none)
              grants no power to any part of the government.

              It restricts the power of the government.

              Presidential power is granted ONLY in Article II of the Constitution.

              Indeed, the "legislative veto" cases have ruled it unconstitutional for Congress to grant to the Executive branch any of its powers by statute.

              The SCOTUS is extraordinary.

              by Armando on Tue Dec 20, 2005 at 10:46:18 PM PST

              [ Parent ]

              •  My wording was unclear. (none)
                The Fourth Amendment may not restrict the President's, Article II power to carry out this operation. The question that Kerr leave's open is whether FISA extinguishes this Article II right. He states there is no case law to support this and the Steel Seizure case seems to lend support that FISA does extinguish that right.
                •  If Habeas Corpus (none)
                  guarantee unless suspended by Congress, applies to the C-i-C, how could the 4th not? The question is what acts will pass scrutiny under a tst that grants more deference.

                  Shine pretty much makes that argument a nonstarter. Of course the 4th applies. The question is what is the result of its application.

                  The SCOTUS is extraordinary.

                  by Armando on Tue Dec 20, 2005 at 10:52:50 PM PST

                  [ Parent ]

              •  Excellent discussion (none)
                Thank you ortcut, Me and Armando for an excellent discussion on Professor Kerr.  
          •  I'm confused (none)
            Are you accusing Kerr of supporting monarchy, or of burying the lead?  Seems a bit of a distinction.
      •  A question from a foreigner (none)
        If Bush admitted to breaking the law, then why isn't he being charged?  Can't the district attorney in Washington open an investigation and bring evidence to a Grand Jury?  Or is the President allowed to violate laws with impuntity?  Because that seems to be obviously absurd.

        "The state has no place in the bedrooms of the nation." - Pierre Trudeau

        by fishhead on Tue Dec 20, 2005 at 10:54:59 PM PST

        [ Parent ]

        •  President in office (none)
          is not subject to prosecution, only impeachment and removal from office.

          After removal, he can be prosecuted. Strangely enough, a sitting President IS subject to civil lawsuit. Jones v. Clinton.

          The SCOTUS is extraordinary.

          by Armando on Tue Dec 20, 2005 at 11:01:50 PM PST

          [ Parent ]

          •  Whoa! (none)
            So let's say the President had a psychotic episode...okay, another psychotic episode and ran into the street shooting people dead.  The only way he could be held accountable is through impeachment?  Wouldn't he go to jail while the charges were being processed?  What if Congress - for whatever reason - didn't want to hold him accountable for this or that crime?  This seems really, really dangerous to me that an individual could conceivably commit a series of crimes and remain at large.

            "The state has no place in the bedrooms of the nation." - Pierre Trudeau

            by fishhead on Tue Dec 20, 2005 at 11:07:45 PM PST

            [ Parent ]

            •  It's hard to say (none)
              If something extreme like this came up, then it's possible that the courts would rule that he wasn't acting in an official capacity and therefore the normal arguments about separation of powers don't apply, but that's a distinction which has never arisen in a case to date.  It's likely if something like this happened though that the President would either be impeached or he would be ruled incapable of performing his duties in accordance with the 25th Amendment.  He may be subject to criminal prosecution after leaving office.
            •  No Change in Circumstances (none)
              He would be deemed not guilty by reason of insanity and thereby permitted to remain in office and continue to execute his duties and other things.
              •  And then be reelected (none)
                no doubt.

                "... Let us stop, look and listen. Let us not give this president or any president unchecked power. Remember the Constitution." Sen Rob't. Byrd 10/11/02

                by LEP on Wed Dec 21, 2005 at 02:50:34 AM PST

                [ Parent ]

      •  I think Kerr is pretty clear (none)
        that, in his (tentative, not yet final) view, Bush, by violating FISA, committed an illegal act.  He is also -- much more tentatively -- inclined to the view that Bush did not directly violate the Fourth Amendment.
    •  Oh yeah, (4.00)
      and I mean, those sobriety checkpoints rock!

      Can't imagine why anyone would be upset over that, nothing un-American about conducting a fishing expedition on the freeway by stopping anyone unfortunate enough to be driving along at that moment.

      "I am not a crook" - The Honorable Richard M. Nixon

      by tricky dick on Tue Dec 20, 2005 at 10:28:41 PM PST

      [ Parent ]

    •  "Special Needs"? Where? (none)
       The problem here is that the 4th Amendment doesn't contain any "Special Needs" exception. That so-called doctorine is the creation of conservative judges hellbent on distorting the 4th Amendment in order to enlarge goverment power under the auspices of catching, deterring, and punishing criminals.

       In fact, the "expectation of privacy" doctorine is also suspect in this regard. Along with the "special needs" doctorine, and a few others, the 4th Amendment requirement of "resonableness", has come to be paper-thin.

       What is really ironic in this entire mess is that the same people who have built an entire jurisprudence based on not "finding" certain rights in the Constitution unless explicitly written, have no problem "finding", doctorines and inherent powers that suit their political philosophy.

       Therefore I think that Progressives should challenge the defenders of this crime..er..policy, to do what they insist those who embrace a "living" Constitution should do when they want to enshrine certain rights. Go to through the political process and amend the Constitution so that the powers they claim now are inherent become explicit. Same goes for the doctorines that bastardize the 4th Amendment as it is now written.

       I think it would be quite illustrative to use their principles against them.

      "Most people would sooner die than think; in fact, they do so."

      by sebastianguy99 on Tue Dec 20, 2005 at 10:45:44 PM PST

      [ Parent ]

    •  my cursory review (none)
      shows these instances (airport searches, etc.) are distinguishable, they have lessened expectations privacy due to implied consent or are, in any case, based on statutes passed by congress or regulations passed by administrators (equivalent of congress).  

      Kerr's analysis is confusing.   Suffice it to say, FISA requires a warrant and in that way conforms with the 4th Amendment.  Its penalty clauses are probably additional to constitutional tort claims which could be made.  One could argue the retroactive warrant clause violates the 4th amdt., but that's not the issue here.

      Anyway, thanks Armando for linking to the Hamdi decision, which I have not read (its 100 pages long), but appears may be on point.

      •  and pertinent to Armando's (none)
        concerns, I think the idea is that if the president has broad constitutional authorities, he is not limited by/subject to FISA, i.e., he did not violate FISA.  I think under a Youngstown analysis, he would have to argue that 9-11 was a circumstance broader than FISA foresaw.
    •  "special needs" doctrine (none)
      "special needs" doctrine of the Fourth Amendment, that has grown up around sobriety checkpoints, searches of closely regulated businesses, school searches, border searches, airport screenings, and drug testing regimes.

      All those conflicts with the fourth amendment were legislated out in the open, adjudicated in open court and opportunities for appeal exist.

      Whether  I like the results or not, they were the result of a democratic process.  Notable exceptions currently being appealed are the passage of secret laws by the legislature with regard to airport id checks.

      The executive can't dispense with the fourth amendment in secret.

      First they ignore you, then they laugh at you, then they fight you, then you win. ~~ Mohandas Gandhi

      by TimeTogether on Wed Dec 21, 2005 at 12:15:58 AM PST

      [ Parent ]

  •  Power and war (4.00)
    Americans need to sit down with themselves and ask if they really believe that winning wars is so important as to throw out every Constitutional provision regarding separation of powers, and regarding the rights of the people.

    The question of what is acceptable to do in pursuit of winning a war has been fundamental to American politics since the Revolution, when the whole thing very nearly fell apart over the public's DEEP hostility to a standing army and fears of its role in politics, its impact on liberties. The crisis was averted only when Washington stepped in and insisted the military be subordinate to Congress, and that the soldiers lay down their weapons and go home at war's end to be on an equal level with all other citizens.

    Today, too many Americans seem to believe that winning a war - however it is defined - is of paramount importance, that no right, no law, no Constitution can stand in its way.

    In the 20th century especially, wars have been the occasion of governmental abrogations of our rights and liberties. Often these abrogations have been unnecessary and of dubious legality. But, we've tolerated them by and large, convincing ourselves they were necessary to achieve victory.

    And now, the bill has come due. Using Americans' desire for victory, Bush has made himself into an absolute monarch - the very thing utterly despised by Americans of the 1700s, the thing that gave them terrors in the night.

    I'm not part of a redneck agenda - Green Day

    by eugene on Tue Dec 20, 2005 at 10:14:25 PM PST

    •  The people who support Bush (4.00)
      And support the "temporary" removal of our rights and the checks and balances inherent in the constitution are suffering from two delusions:

      1. These rights, etc. will be restored once this war is over (whatever "this war" is or that it will ever be over).

      2. All this spying, renditioning, torturing, etc. is happening to "them" and "they" deserve whatever the heck "we" do to "them" because "they're" not "us".

      They and them being a laundry list of anyone ranging from non-christian to not the right type of christian, and from not American to not the right type of American.

      That's why it's so dfficult to prod his supporters from their little safe nests. They won't hit the cold, hard ground until they are personally affected by Bush's sweeping rape of our nation. Mindless, reasonless discrimination and hate is very difficult to counter. These people's minds are closed to anything that doesn't fit into their cookie-cutter lives.

      Bush - the ultimate example of the Peter Principle.

      by PatsBard on Tue Dec 20, 2005 at 10:40:51 PM PST

      [ Parent ]

    •  I got into this (4.00)
      with a redstater the other day. LeonH, I believe.

      He says we need to win in Iraq, he also said we could've won Vietnam.

      I conceded he may have been right, but only after sacrificing tens of thousands of US troops and hundreds of thousands of Vietnamese.

      The fact is, we would have had to devastate North Vietnam. No half measure would do, Charlie wasn't going to stop coming. We literally would have destroyed that nation to save it.

      The same situation exists is Iraq. I have slowly come around to a position of immediate and total withdrawl. I am rock solid on it now. This is because I understand that we are in a similar (if somewhat different) situation today.

      The situation in Iraq is intractable. This is guerrilla war, and the support for the insurgency is only likely to increase. Haji isn't going to stop coming. We will have to destroy Iraq to save it.

      He said something to the effect that that was fine and dandy with him. Go USA.

      Fucking pathetic.

      "I am not a crook" - The Honorable Richard M. Nixon

      by tricky dick on Tue Dec 20, 2005 at 10:42:19 PM PST

      [ Parent ]

    •  Sieg heil! (none)
      is what some other people said who very much wanted victory.

      Endsieg oder Untergang!

  •  A surreal world, huh? (none)
    Democracy has left the building. Maybe it will return once Dubya has been run out of office. :(

    -7.38, -5.23 One day we ALL will know the truth about the 2000 presidential election. God help us all.

    by CocoaLove on Tue Dec 20, 2005 at 10:15:11 PM PST

  •  Yes, and the Republican spinmeisters (none)
    are hammering "Commander-in-Chief" into our heads at every opportunity.  They're trying to obscure the fact that Commander-in-Chief power applies only to the armed forces and not to anyone else.  It is by definition a limited power, indicative of ultimate civilian power over the military.  

    Commander-in-Chief as talking point

    Just because we can, that doesn't mean we should.

    by Simplify on Tue Dec 20, 2005 at 10:15:22 PM PST

  •  Enemy combatants... (4.00)
    ...are not the purview of the Presidency. Heckuvajob Georgie violated the Constitution by declaring them to be under his authority. The definition of combatants and others is the responsibility of Congress...

    Article 1, Section 8 of the the United States Constitution states, in part, that the Congress will have the power:

    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;

    •  In explanation... (none)
      Reading over this thread, my post above looks a bit out of place, off-topic. The blockquoted excerpt is actually from Armando's diary; the particular phrase jumped out at me. Apologies.
  •  The NYT... (none)
    undoubtedly has the goods on how the NSA was used and who it was used on. The FOIA is too slow, probably won't do any good before 2007. Question is, will they or won't they - The NYT, i.e.

    You can argue about Hamdi and FISA until the cows come home, but this crowd ain't going to own up to anything. There are only two things they do understand:

    1. A special prosecutor
    2. A filibuster

    I prefer DKos News to Google News

    by inetresearch on Tue Dec 20, 2005 at 10:21:18 PM PST

  •  The last time I posted (4.00)
    on a front page story I was trolled into oblivion.

    Seems there are special rules over in FP land that dont' exist in the diaries, C&J.

    Or maybe I'm just a stupid dickhead.

    Anyway, here goes...

    Bush is bad. Doesn't care who he hurts and is utterly dishonest. No regard for the law or those it protects. Doesn't respect and in fact resents the boundries of society. No integrity whatsoever.

    He's the worst president in a really long time.

    Please don't trollrate me.

    "I am not a crook" - The Honorable Richard M. Nixon

    by tricky dick on Tue Dec 20, 2005 at 10:21:31 PM PST

    •  You must have wandered (none)
      over to LGF by mistake.

      The SCOTUS is extraordinary.

      by Armando on Tue Dec 20, 2005 at 10:22:30 PM PST

      [ Parent ]

      •  No. (4.00)
        I was like, "I got the first comment, bitches!".

        That sort of thing is apparently frowned upon in the "serious threads".

        It's cool, though. Live and learn.

        I have been to redstate. On the 15th. I hammered them on their, "We won the war" diaries.

        It was, um, interesting.

        BTW, I just returned from Iraq. Diyala Province, I was National Guard (12B). I started reading this blog over there in January. I started out thinking your position on the war was a bit over the top until I got my feet a little wet.

        The situation over there is intractable. The support for the insurgency is growing. Even if a  stable governmnent emerged (it won't) the resistance to US occupation will continue.

        The Iraqi Army is a complete joke. I went out on night patrols with them, and those motherfuckers would be sleeping in their trucks. I'm like, uh... hey dudes, it's time to move. Wake the fuck up.

        These guys are not about to unfuck themselves anytime soon, and Haji will just keep coming. It's time to didi mau.

        I enjoy all your posts on Iraq, I know you are occupied with the SCOTUS issue at the moment, but wish you would keep hammering these motherfuckers with a heavy dose of reality with regards to Iraq.

        "I am not a crook" - The Honorable Richard M. Nixon

        by tricky dick on Tue Dec 20, 2005 at 11:00:51 PM PST

        [ Parent ]

        •  General rule (none)
          If you want to say "Frist!" without actually saying something about Senator Frist himself, best go to Eschaton for that.

          Finem respice et principiis obsta—Consider the end, and thwart the beginning

          by Del C on Wed Dec 21, 2005 at 03:24:17 AM PST

          [ Parent ]

  •  They don't understand the Constitution (none)
    The document is designed to allow for future laws.  They're trying to jump through a temporal loophole.  The argument seems to be: Since the FISA Court didn't exist in 1789, then the Presindet isn't beholden to it. He's only obligated to follow our modern interpretation of the original document.

    Or, as Ker said, "You can pass a law closing a loophole, but we can't be held to it."

    Also: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.  Outlawing Torture anyone?

    What do members of the Repub. leadership say when they bump into Pres. Bush? "Pardon me."

    by mungley on Tue Dec 20, 2005 at 10:22:59 PM PST

  •  What "War"? What bullshit. (none)
    How big is Al Queda?

    Did Congress declare war?

    Did we shit on the Constitution to beat the Nazi war machine?

    How many troops did the Germans have?

    Yeah, yeah....fuckin' mushroom clouds.

    One question for ya constitutional scholars?

    Would you rather die standing up or live on your knees?

    We all know Mr. Bush is perfectly willing to break  any law, say anything; perpetrate any outrage agains our nation's rule of law all the while waving the bloody shirt of 9/11.

    Question is are we gonna demand Congress stuff that bloody shirt down his lying throat or not?

    "Such is the irresistible nature of truth that all it asks, and all it wants, is the liberty of appearing."

    by Nestor Makhnow on Tue Dec 20, 2005 at 10:23:17 PM PST

  •  Jefferson said of Monarchy... (none)
    "I was much an enemy of monarchies before I came to Europe. I am ten thousand times more so since I have seen what they are. There is scarcely an evil known in these countries which may not be traced to their king as its source, nor a good which is not derived from the small fibres of republicanism existing among them." --Thomas Jefferson to George Washington, 1788. ME 6:454

    source: http://etext.virginia.edu/...

    •  Jefferson (none)
      Largely true then, but perhaps not so now where those countries with constitutional monarchies, eg. Sweden, Norway, Denmark, Netherlands, Belgium, UK, Spain, Canada, New Zealand, etc. are often more progressive than their republican neighbours. Similar comparisons are true of nations with monarchies in other parts of the world in comparison to their neighbours, eg. Morocco, Jordan, the Gulf States, Thailand, Malaysia. Obviously there are exceptions such as Saudi Arabia.

      Liberalism is trust of the people tempered by prudence. Conservatism is distrust of the people tempered by fear. William Ewart Gladstone

      by uklibdems on Wed Dec 21, 2005 at 07:26:54 AM PST

      [ Parent ]

  •  Do I need a law degree to read your post, Armando? (none)
    I'm trying hard to understand all these complex details and my brain is getting fried up already.

    Could someone please summarize and simplify this post for me?

    •  For this one? (none)
      Yeah, unfortunately.

      It is getting complex.

      The SCOTUS is extraordinary.

      by Armando on Tue Dec 20, 2005 at 10:38:05 PM PST

      [ Parent ]

      •  Central points are relatively simple, actually (none)
        One of your best columns, btw.

        The key points are these: The Constitution gives the President a limited range of powers and responsibilities. The latter include the requirement that the President uphold the laws.

        Bush has staked a claim to powers that are not supported by the Constitution, statute, or case law. Neither has any President ever made such a sweeping case for his own power. Bush is defending actions that clearly violate statute. Therefore he has behaved unconstitutionally in rejecting unilaterally the laws he is sworn to uphold.

        I gather that you also believe Bush has violated the Fourth Amendment. (I have no doubt that Bush has.) The only way to modify the prohibitions set out in the Fourth is by Congressional action. Congress did act, with the Foreign Intelligence Surveillance Act, which governs the issues in question. It is this statute that Bush rejected.

    •  ok I wrote a diary (none)
      simplyifying their argument. I am sure that I didnt get everything armando says, because frankly I dont get it all either.

      In my dkos exclusive

      I talk to GWB and he 'splains it all in plain language.  Even if he sposedly violated the law, the supremes can make it all good cuz that law is unconstitutional. Worst case they go to the supremes and they stamp it all a-ok. Like they did with his election. They can even claim like they did then that this is not a precedent.

    •  ok I tried to understand armandos diary (none)
      And I think (one thing) he is saying is:

      How the fuck can they (bushco) say that its constitutional for Bush to violate americans 4th amendment right to due process In the name of national security?

      That is we have the right to be secure from searches, wiretaps, etc. unless a court gets probable cause of wrongdoing.  Because as recently as 2004 in the Hamadi case, a man was seized on the battlefield in afghanistan, and detained without trial but since he was an american citizen was given the right to due process and trial.  So what he is arguing is that even in this case, which is much more damning and much more pertinent to war than the case of someone whose email happenned to be three times removed from an al quaeda contact, he was given constitutional protection.

      Therefore the president obviously doesnt have unfettered ability to violate these kinds of laws when we are talking about americans at home in america.

      My thoughts in my diary is that Bush et al doesnt give a fuck and what ever the supreme court said last year is history. They hope to get a different ruling, this time should it come to that.

      on the other hand I am not a lawyer,and dont even play one on tv.

  •  I'm glad somebody finally noticed (4.00)
    the Adminstration's repeated use of the word, "prerogative." Abu has used it, and so have many well-connected pundits.

    In Anglo-American constitutional law, "prerogative" refers to one thing: the unenumerated and untrammeled authority of the Crown, emanating from the sovereign himself. In this country, there is no such thing, of course; no power "emanates" from the president. Instead, powers are enumerated and granted to him by the Constitution.

    The right's choice of this strange and ancient word is most deliberate, and betrays more of their worldview than they know.

    •  Conservatives , or... (none)
      ...Tories, as we call them in my country, are historically supporters of monarchical prerogatives.  

      Of course, historically, they were interested in conserving currently existing prerogatives. I don't know that giving the head of state whole new ones is exactly a conservative thing to do. Maybe "Tories" is a more accurate description of the modern Republican party.

      Finem respice et principiis obsta—Consider the end, and thwart the beginning

      by Del C on Wed Dec 21, 2005 at 03:28:30 AM PST

      [ Parent ]

  •  magna carta (4.00)
    While we're enjoying a visit to  Merry Olde England, let us not forget Magna Carta, which Simon Schama called (paraphrasing),  not the birth certificate of  liberty but the death knell of  despotism, particularly this article:
    + (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
  •  Commander and Chief (CNC)... (4.00)
    The President is CNC of the MILITARY, not of ALL U.S. citizens.  The Republicans can say it all they want, but he is not some unrestricted officer over the general populace of the United States.  Everytime one of them refers to Bush as CNC, they KNOW this is incorrect...flat out lie.

    Jesus Saves...He Buys Wholesale.

    by Mote Dai on Tue Dec 20, 2005 at 11:12:45 PM PST

  •  It's just talking points (none)
    I am of the opinion that it is a waste of time to argue with people who make baseless arguments that are really just talking points.  The very fact that you argue with them, lends the talking points some kind of credibility.  It's like - well, we have two sides to the story and each has equal weight for consideration.  And when you take down one talking point, they just put out a new one.  
    Just ignore these fucks and talk only about impeachment.  Do you want to argue about whether illegally spying on U.S. citizens is constitutional or argue about whether Bush should be impeached?  Cut off the head and the tail dies.
  •  Orin Kerr Interview (none)
    Prof. Orin Kerr was interviewed on this program with Prof. Erwin Chemerinsky.  

    http://www.publicradio.org/...

    They spend a lot of time debating whether this program violates the Fourth Amendment and Kerr talks about satellite communications, a topic which seems totally irrelevant since it's nutty to think that people in the US are using satellite phones to talk overseas.  I'm only 12 minutes in, but they didn't really get to the important issue of whether the program violates the FISA.

  •  You tell 'em (none)
    What Armando said.  ONLY LOUDER.

    Thx

    "the Greater Good and the Greater Profit are not compatible aims" -- Yann Martel

    by baba durag on Tue Dec 20, 2005 at 11:51:41 PM PST

  •  "Privateer" Bush? (none)
    If I understand Armando's diary, Bush has been acting like a privateer. See below for definitions and I SWEAR I'm not making up the part about thief, robber, pirate, brigand, etc.

    privateer (prì´ve-tîr´) noun
    1.    A ship privately owned and manned but authorized by a government during wartime to attack and capture enemy vessels.
    2.    The commander or one of the crew of such a ship.

    letters of marque plural noun
    1.    A document issued by a nation allowing a private citizen to seize citizens or goods of another nation.
    2.    A document issued by a nation allowing a private citizen to equip a ship with arms in order to attack enemy ships. Also called letter of marque.

     [Middle English letters of mark, from Old French marque, mark, seizure, reprisal.

    The American Heritage® Dictionary of the English Language, Third Edition copyright © 1992 by Houghton Mifflin Company. Electronic version licensed from INSO Corporation. All rights reserved.

    The American Heritage® Dictionary of the English Language, Third Edition copyright © 1992 by Houghton Mifflin Company. Electronic version licensed from INSO Corporation. All rights reserved.
    THESAURUS, for Privateer:
    Volition: The exercise of the will: Possessive relations: Thief
    robber (noun)
    robber, robber band, forty thieves
    brigand, bandit, outlaw, Jesse James, Billy the Kid, Bonnie and Clyde, Robin Hood
    footpad, highwayman, knight of the road
    mugger, thug, dacoit, gang-robber, ruffian
    gangster, mobster, racketeer
    gunman, hijacker, skyjacker, terrorist
    sea rover, pirate, buccaneer, picaroon, corsair, filibuster, privateer
    Captain Kidd, Long John Silver
    reaver, marauder, raider, freebooter, mosstrooper, rapparee
    plunderer, pillager, sacker, ravager, spoiler, despoiler, depredator
    wrecker

    The Original Roget's Thesaurus of English Words and Phrases (Americanized Version) is licensed from Longman Group UK Limited. Copyright © 1994 by Longman Group UK Limited. All rights reserved.

  •  OMG...Niteline had 2 constitutional experts on: (none)
    and both of them said Bush violated FISA law and the one with the most credibility (and air time) said it was an impeachable offense!  The genie is out of the bottle.  Impeach!!!  (BTW, FISA gives the president 15 days to get ratification of emergency surveillance in time of war, if that is what we are in.)
  •  Moreover, we are NOT really in a (none)
    state of war, despite all the BS rhetoric about the "war on terrorism" and Bush's vain self description as a "war president". Such a state presupposes a declaration by Congress.
    In fact we'd be infinitely better off if there were less "war on terrorism" rhetoric and more effective police-action against terrorists...

    we're shocked by a naked nipple, but not by naked aggression

    by Lepanto on Wed Dec 21, 2005 at 12:30:37 AM PST

  •  king chimpy 1 (none)
    its obvious that the rethugs have become so intoxicated withtheir power that they no longer know what the bounderies are, or sadly, who their enemies really are.

    it tastes like burning...

    by eastvan on Wed Dec 21, 2005 at 12:32:16 AM PST

  •  To be fair to Kerr (4.00)
    My two cents:

    I read Kerr's post, all of the comments, and his replies to comments a day or so ago.

    I did not read it as condoning or defending Bush's actions. Quite the contrary.

    IMO a fair reading is that he takes the approach of giving Bush the benefit of the doubt for argument's sake but still finds the administration's arguments wanting.

    I think the significant point is that even when one attempts to see things Bush's way, one cannot arrive at the conclusion that the action was legal.

    Kerr did not write a newspaper article. There was no lede to bury. Is your beef really with the order in which he addressed the arguments?

    Armando, have you asked Kerr about your take on his position?

  •  Wait a minute... (none)
    Article One of the Constitution makes provisions for navy and land forces.  Does this mean that silly conservative "originalists" will argue that there is no constitutional authority to have an air force?

    (Thanks Armando for a very powerful collection of material!)

  •  Dumb Non Productive Comment (none)
    But this diary putting the whole thing into some sort of historical perspective was a fine piece of work. Thanks Armando.

    New International Times, the place where Kossacks and the world meet.

    by Welshman on Wed Dec 21, 2005 at 05:57:23 AM PST

  •  They Really Don't Believe In Democacy (none)
    Remember back during the 2000 coup?  Many Republicans argued that we don't even have the right to vote for President.  There's nothing surprising about any of these new developments.
  •  Bush, Booze, Rights and Rice (none)
    First, will SOMEONE PUHLEEEEEZE research the role of Ms. Condi Rice in the NSA spy scandal?  As the National Security Advisor, and one who has taken several courses in graduate school that would have given her sufficient skill to read an act, statute, regulation, order, or policy statement, she has abilities.  Those abilities include powers of reasoning to determine what is necessary and what is illegal.  Also, are there a legitimate and separate collection of rules to run NSA that would allow the spying on US citizens.  My research says no.  How about you?

    Second, if Bush started boozing at a very young age, what effect has the consumption had on his ability to reason?  

    What I have seen in recent years is a draconian Bush.  Piaget, the famous and respected child psychologist would, I believe, peg this rule oriented behavior as one suited to a normally developing adolescent.  If alcohol can stunt a persons psychologic development, would the characterization of Piaget's age based skills apply?  

    Would it be reasonable, according to child psychology to assume development is stunted at whatever age drinking began.  And would the stopping of the development of reasoning progress apply to one who began drinking in adolescence, then allegedly stopped at, say 40?  If the stopping part at 40 didn't happen, what goes on with the reasoning skill sets of such a person?

    In other words, I'm a musician.  I took many child psychology courses in college/grad school, but have not kept up.  And it has been more than two but less than three decades.  

    Any psychologists out there who could address this concern?  Please chime in.  Soon.  Inquiring Minds Want To Know who is in charge, and if an adolescent skill set is residing in a late 50's aged body sitting at the desk in the Oval Office.

  •  Republican Districts (none)
    For those who live in Republican House Districts, I found this link at Crawford's List with quotes from Republican House Members about how protection of the rule of law and the Constitution are so important that Clinton's impeachment was required.

    Might be handy if you wish to contact your Representative regarding Bush's latest behavior.

    Republican Statements on Impeachment

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