Though to listen to many on the left, John Yoo was never so much “deputy assistant attorney general” under President Bush from 2001-2003 as he was a crazed proto-totalitarian race traitor (who, when he wasn’t butchering the constitution, was sitting naked on the lap of the Lincoln Memorial fetishizing executive power), the legal case he lays out briefly to the WSJ’s Paul Gigot on the “Journal Editor Report” for authorization of the NSA’s “domestic spying” is worth rehearsing, if only so that supporters or the program—or those still keeping an open mind—can prepare themselves for the counterattacks by Glenn Greenwald (who will be commenting on the questioning of AG Gonzales, beginning Feb 6), MK, Anonymous Liberal, and others—all of whom, from my experience reviewing their arguments here, seem most interested in finding perceived inconsistencies concerning the administration of the program offered in often extemporaneous public statements by a host of officials with varying degrees of legal expertise than they do actually deciding—based on what we actually know of how the program has functioned—on the program’s legality or constitutional pretext to inherent authority.
What follows is the transcript of the interview:
Gigot: The critics of the president’s wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wiretaps. In this case, the president didn’t go to that court to get approval; therefore, what he does is illegal. What’s wrong with that argument?
Yoo: There are two different arguments that the administration is relying on. First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the Constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City. And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11. Now, that power to use force has ancillary powers, or related powers. One would be the power to detain enemy combatants, which the Supreme Court upheld two years ago. Another related power, and in some ways maybe an even more important power, is to gain intelligence on the members of the enemy so you can use force in the best way possible. And presidents have traditionally, since at least Franklin Roosevelt on, have always used that authority to intercept the communications of members of the enemy, including intercepting—
Gigot: But why, in this case, couldn’t he just have gone to the FISA court and asked the court, OK, give—say, “Here’s the probable cause for an al Qaeda member overseas. We want to listen in.” Why couldn’t he have gone to the court?
Yoo: Well, I can’t talk about the specifics of the program, what the program exactly requires, because it’s still classified. But I can say that the FISA statute isn’t really suited to the challenge posed by al Qaeda. The FISA statute was written, as you said, in 1978. It was designed to allow us to surveil Soviet spies working at the embassy in Washington or the U.N. headquarters, who were contacting Americans. And it was written for a time of rotary telephones, when there was no email. And it was written for that kind of period. It wasn’t written to anticipate this kind of far-flung network, where members of al Qaeda could be citizens of many different countries and they’re using email, phones to call each other.
And so, just to give you some examples where FISA doesn’t quite fit, one is what happens when you’re in a world where people can change their email addresses every minute? And so that our people, who are out in cyberspace trying to find them, have to keep moving quickly to keep on their trail. Do we want our agents to have to continuously got back to the FISA court every time that happens?
Or what happens when members of al Qaeda, who we know watch our government and watch what we do and watch our political system, what happens if they know about FISA and so they realize that, in order to surveil a U.S. person, which is anyone basically in the United States who’s a citizen or a resident alien, they know that you have to get to a FISA court to get a warrant? Suppose they just started including random Americans, you know, in their coded emails. So if Osama bin Laden wanted to send an email to his second in command, Dr. Zawahiri, suppose he just cc’d some random person who appeared to be an American?
Gigot: So it’s the speed of these communications in this world. But let’s say Congress still objects here. What recourse do they have politically to be able to stop this? Do they have–can they sue? Can there be a legal way to stop this? Or does Congress have to pass legislation?
Yoo: Well, I think the Congress has a lot of checks. I don’t think the primary check is going to be by going to the courts. There is, I think, two lawsuits that were just filed against the NSA program. But I think they’re going to fail, because you need to show standing, which means that you have to show that the plaintiffs in those cases actually suffered a harm or were actually surveilled by this program. And they don’t appear to have anyone who knows or can show that that happened. Similarly, a single member of Congress isn’t going to be able to go, I think, to a court and try to stop the program. But Congress can do lots of things. Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it’s going to do. Congress can use all the traditional methods it uses to control other aspects of, you know, the giant bureaucracy and administrative state.
Gigot: It sounds like what you’re saying is it’s more than a legal fight. This is really a fight–a political fight and a fight between the branches and between political actors.
Yoo: I think that’s right. I think this is a real struggle between the president and Congress and foreign affairs and national security. And that’s the way the Constitution was designed. It was designed to give both the president and Congress different powers that overlap sometimes and make it conflict, if they want it to, to try to frustrate each other. But it also allows them to cooperate when they agree. I might add that, you know, Congress hasn’t done any of the things we’ve talked about to try to block the NSA program yet.
[My emphases]
Very quickly: Firstly, for good or ill (many of those on the progressive left and civil libertarian absolutists will conclude it’s for ill), the case Yoo lays out roughly matches the case I’ve been making all along—and which some of my critics have been denying that I have reason to make: specifically, that the Executive authorization for the program draws its authority from both the President’s inherent authority Art II, and secondly that AUMF, granted by Congress, renders certain FISA prohibitions / checks statutorily impotent, as the AUMF acts as a legal exemption (the overriding resolution) to FISA’s authority in times of war (as was part of its legislative design)—a position held by the FISA review court, who noted as much in plain language:
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
Secondly, what we are witnessing is not so much an actual legal battle—though the show being put on by opponents of the program are using all the trappings to lend their complaints an air of forced gravitas — as it is a battle over separation of powers, with the now highly partisan liberal-left minority leadership, taking advantage of an illegal (and certainly punishable) leak of highly classified information disseminated through the NYT to try to tie what they know to be a perfectly legally and constitutionally defensible program, upon which they rely on worst-case hypotheticals to hit their scare points, into their 2006-2008 official narrative that the Republicans are engaging in a “culture of corruption,” the crowning action to which is Bush’s Nixonian-decision to “spy” on “ordinary Americans.”
This is, of course, a load of crap, which is why—as Yoo points out in the interview, and as I and others have pointed out on numerous occasion—we hear many protests from legislative critics, but almost no calls to end the program, an eventuality that President continues to highlight, rightly, by maintaining (in complete defiance of the media, progressive, an civil-libertarian hysterics) that he will go right on authorizing the program.
Instead, we get showy law suits and FOA requests from the ACLU that the organization knows are bound to be tossed out, a) because such classified info doesn’t obtain under FOA, and; b) as Yoo and others point out, the law suit filed against the NSA program has no standing.
Finally, the specifics of the technology involved, those in the know continue to make clear to those reading between the line, simply cannot work within the old FISA system. Had the President gone to the full Congress to try to address the issues, there is no doubt he would have been met with a few grandstanding opposition legislators who could have either held up or jeopardized the program by providing clues to its functionality; instead, the President relied on his AUMF authority—under both Article II and the FISA exemption—to institute the program after having it legally vetted by DoJ, NSA counsel, DoD, and then taking it for (appropriately) limited Congressional oversight, as well as running it through the FISA review court.
Continued protestations against the case—particularly those that pretend to rely on hypothetical scenarios that have been repeatedly professed as inapposite, in this case—should therefore been seen for what they are: either a fidelity to finding and exploiting potential tensions in legal language between the Congressional FISA statute and the President’s constitutional mandate (tensions that never meant to weaken national security, I think it safe to assume); or else a disingenuous desire to use the current highly partisan political ethos to affect a legislative power grab while adding ever new editorial layers (presented as “fact”) to this narrative of Republican corruption.
The obvious rejoinder to this rhetorical ploy—and the one that I believe the administration has been playing beautifully—is to treat this for what it is: an obvious gambit that, when reframed properly, has liberal Democrats and their media cohorts looking far more desirous of trapping the President in some strained illegality (and even then, to do so they are forced more and more to rely on hypothetical scenarios, or implausible instance of abuse that suffer from having very little information about how the program actually operates) than in protecting the country against terrorists.
They can scream and protest all they want that such a reframing questions their patriotism—and that real patriotism involves a kind of neo-Watergate press out actively investigated Executive malfeasance—but making that narrative fly [which, ironically, requires more and more a strange projection of this sinister media manipulation project onto conservatives] relies on a public trust that he press is interested in covering the news and not actively out trying to make it. Similarly, it relies on the public’s trust that such investigation is done evenhandedly—and no one with a shred of intellectual honesty would say that the current configuration of our (rather lazy, it seems to me) legacy media is interested in evenhandedness when “advocacy” and an “adversarial stance” are now their preferred methods of self description (even as they continue to cleave to “objectivity” for their claim to an informational moral highground).
(Thanks to Terry Hastings)
****
update: With thanks to Jamie, here’s a Vanderbilt Law Journal article addressing the topic of the “unitary” executive—which is simply a fraught way of noting how executive power is given Constitutional precedence under certain conditions. Here’s the nut:
Just as we found in each of the preceding periods, we conclude that every president between 1945 and 2001 defended the unitariness of the executive branch with sufficient ardor to rebuff any claims that institutions such as independent counsels and independent agencies have been foreclosed as a matter of history. From Harry Truman’s removal of General Douglas MacArthur to Bill Clinton’s removal of each president during in[sic] this period has proved to be a vigorous defender of the unitary executive.
[…]
The story of the rise and fall of both the Tenure of Office Act and the Ethics in Government Act are eerily similar and stand as stark reminders of the dangers that can occur when the power to execute the law is placed outside of presidential control.
*****
(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here, and they contain comprehensive sourcing).
are gay. Thus endeth the sermon
My reading of the White Paper the DOJ put out has an interesting element that hasn’t gotten much play. FISA itself allows for warrentless surveillance for 15 days after a declaration of war. Assuming the 2001 Authorization is the equivalent of a declaration of war, then the question is whether going beyond 15 days is unconstitutional? In other words, is a Police State (as described by the various detractors) ok if it lasts less than 15 days?
Good work on this subject, by the way.
Gosh. It would appear that BDS has metastasized into a particularly virulent form among the hard left:
Peter Daou:
The mainstream media is biased in favor of the political right. This must be part of the up is down, black is white narrative.
Just so we’re clear, is it your contention then that there is no law congress can pass that would limit what the president can decide to do, if he makes an argument that his chosen course is related to national security? Are you arguing that article two of the constitution coupled with with at declaration of war, or a suitable substitute, allow the president’s decrees to trump any law congress might make?
The above quote is the core of the argument proferred to the Supreme Court in the Hamdi case by one of the most reverred organizations by the so-called People For the American Way (PFAW) challenging the detention of Hamdi and Padilla as enemy combatants.
As we all know, the Supreme Court rejected this argument; the detention of enemy combatants (whether they be American citizens or not) is part and parcel of the use of “necessary and appropriate” military force as written in the AUMF (below).
In other words, the fact that the AUMF did not explicitly cite, mention or name the Non-Detention Act, even though it cited the War Powers Act does not mean that the AUMF is not an Act of Congress that authorizes the detention of certain American citizens – those that happen to be part of the “those nations, organizations, or persons” who would commit acts of terrorism on the United States. The AUMF authorizes the use of military force. No common-sense examination of the use of military force would actually exclude the detention of enemy combatants.
The same thing applies to the AUMF and FISA. No common-sense examination of the use of military force would actually exclude the use of American Intelligence assets. That FISA was amended in certain ways after the passage of the AUMF or was not cited at all in the AUMF does not mean that the AUMF is not the statutory exemption (as required by FISA) that authorizes the President to order warrantless surveillance within the United States, especially when carefully targetted at people he reasonably believes to be linked to an enemy, that successfully launched an attack on the United States from American soil, that the Congress has expressly authorized him to use military force against.
If the president is exercising his powers as commander-in-chief in the legitimate conduct of war, then no. That’s a power reserved to the executive, and not part of congress’ jurisdiction. Presumably, if the congress were to decide that the president were not exercizing legitimate C in C power in the conduct of war, they could sue and let the supreme court decide who’s right.
Or they could impeach and convict.
As I’m sure you are aware, the Supreme court also reqired the government to prove that the people it was holding actually were part of such an organization by giving them the right to challenge their status. In it’s own words Hamdi v Rumsfeld holds that
To apply the same logic here, wire taps are fine, but go get a warrant.
Suppose they just started including random Americans, you know, in their coded emails. So if Osama bin Laden wanted to send an email to his second in command, Dr. Zawahiri, suppose he just cc’d some random person who appeared to be an American?
Then Bushitler and his minions would just have to get a FISA warrant, wouldn’t they? That would show those Nixonian creeps (pun intended) who’s the boss!
Yes, it would…
No.
For example, the President cannot order the seizure of your house and home to house troops because it would boost their morale. The AUMF does not authorize that because it is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
The President cannot order you off the street and have you tossed in jail because you wore a T-Shirt saying “I Hate Bush!!” even though it insults the Commander in Chief in a time of war. The AUMF does not authorize that because it is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
The President cannot raise or lower taxes without Congress’s consent, even though he may need the money to fund the war. The AUMF does not authorize that because it is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
The President cannot order your wife or husband to sleep with him even though he says it would help him better discharge his Commander in Chief duties. The AUMF does not authorize that because it is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
The President cannot walk into your home and strip-search your children even if he claims it is a 100% guaranteed to frighten Usama Bin Laden into surrendering. The AUMF does not authorize that because it is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
Do you understand?
Now, what this means is that the argument y’all on the Left have to effectively make, is that the surveillance of phone numbers and e-mail addresses found on Al Qaeda members’ contact lists in Afghanistan, Iraq, Pakistan, etc., even if they happen to be American numbers or e-mail addresses, is not part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.
Capiche?
Two points in response to Jeff’s post.
One, the administration’s framing of this debate is dishonest. Critics want the Executive to eavesdrop on communications with Al Qaeda. We just want it to be done (a) according to the law; and, if that’s impossible, (b) according to an amended or new law and (c) so long as there is oversight/checks that exist outside of the Executive branch to make sure that spying isn’t occurring for improper purposes. We really don’t think that’s too much to ask; and I don’t think it’s fair to insinuate that we’re more interested in getting the President wrapped up in some alleged illegalism (although that’s what he’s now wrapped up in) than we are at ensuring that we don’t ditch the Constitution (including a healthy balance of powers) in the fight against terrorism.
Second, we seek to discredit the legal arguments forwarded by the Adminstration (including Yoo) and embraced by Bush partisans (e.g., Jeff) who are all too willing to accept them, no matter how bad they are, because they exonerate our most Excellent President. As has been pointed out in these comments and on other sites, the AUMF argument, while colorable, flies in the face of every rule of statutory construction, ever. I still think it’s hilarious that the Administration’s literal argument is that Congress, in passing the AUMF, did something (abrogate FISA) that it did not intend to do, or know it was doing. But that’s just the minor squabble, because if Congress wants to, it can make it clear that the AUMF did not provide “other statute” authorization per FISA.
The real legal theory that we seek to destroy is the Constitutional theory of a unitary executive, (re)developed by Yoo and Addington, which is now the operating legal principle in the Bush White House. This theory is, in two words, pure crapola. Very few legal experts accept it. It is dangerous, wrong and unconstitutional; it has no basis in history or law. It is radical. Let me put it this way: No legal scholar to the left of Addington believes in it. Comey, Goldsmith—hell, even Ashcroft—reject it. And, God willing—if it can muster the cajones—Congress will, too. Preferably soon.
To apply the same logic here, wire taps are fine, but go get a warrant.
No.
The Non-Detention Act requires that there be a Congressional Authorization for the Executive Branch to legally detain an American citizen without the Judicial Branch signing off on it. The Court’s ruling effectively told the Administration that the AUMF satisfied that requirement but that the Administration must operate within the narrow circumstances of the AUMF.
In other words they can go ahead and detain anyone without going through the Judicial Branch first. The detainee (who definitely has standing and can show harm) has the right to challenge his status anytime after his detention and if he is determined to warrant his designation as an enemy combatant, he can be detained for the duration of the conflict.
Likewise with FISA. FISA requires that there be a Congressional Authorization for the Executive Branch to legally surveil without going through the Judicial Branch. The Court’s ruling effectively in Hamdi means that the AUMF satisfies that requirement but that the Administration must operate within the narrow circumstances of the AUMF.
And therefore, so long as the Administration is carefully (i.e. monitoring only International calls to/from numbers of interest, using computers and specialized algorithms, applying for FISA warrants regularly, auditing on request and reviewing the program every 40 days, briefing appropriate members of Congress and the FISA Court Chief Judge) targetting Al Qaeda contacts, there’s no need for the Administration to first of all go through a judge.
If a U.S. person is surveilled and he becomes aware of it (i.e. he can prove harm and therefore establish standing), he can challenge the surveillance in court and ask for restitution.
Hmmm.
The single clearest example of why the left’s argument against the NSA wiretaps is utterly without foundation is the unwillingness of liberals to demand it’s cessation.
So what is the liberal position on this issue? That it’s illegal but ok?
Oh yeah baby! That’ll get America hopping. What nonsense.
In other words, having to go through a court before the execution of a regular military operation that is integral to the use of military force (intelligence gathering) is unduly burdensome for the Executive in carrying out its duty.
A duty, which, strangely enough, was expressly authorized by Congress. See the AUMF.
MF,
As this program is intended to gather intelligence for military operations in a time of war, Article II rules. Period.
If Congress wants to cut off funding, have at it.
Next!
Martin:
This is untrue as a statement of fact. I realize that you’re just parroting Gonzales’ opinion re the meaning of Hamdi as relates to the NSA issue. But you ought to be highly skeptical that the Hamdi argument is valid. A more apposite case would be Padilla, which the Administration has avoided a SCOTUS ruling on, because they know they’ll lose.
In any event, you probably shouldn’t go around talking about how Hamdi authorized the wiretaps at issue because it’s purely speculative.
So what is the liberal position on this issue? That it’s illegal but ok?
No, that it might be okay except when BushCo is running the program (MF excepted, of coooourse). At least that’s the conclusion that could be reached upon examination of Zogby’s polling from a few weeks ago; substitute Bush for President in the questions and the program’s popularity plummets precipitously, something on the order of 20%. And 20% would be about the upper bound of the Kos Kidz demographic. Coincidence? [Strokes chin in thought]
Hey pot–text message for you from some guy named kettle.
wishbone:
This “Congress should cut off funding” argument, while clearly popular around these parts, is lame. This becomes obvious when you apply the argument to, say, CIA torture at foreign “black sites.” How the hell do you cut off funding for something that is, for all intents and purposes, not “happening”? Those aren’t our prisons, nor are they our waterboards. Do you cut funding for some particular agents’ salaries? For the specific CIA planes that ferry the detainess around?
Of course not. You pass a law making it criminal to engage in or authorize certain treatment. A law which the President does not get to “waive” if he deems it “necessary.” If Congress can do that, it can surely require the President to follow certain procedures when using electronic surveillance domestically. Both laws clearly come within Congress enumerated Article I powers. If they’re valid laws, the President must obey them—war or not. It’s a very simple concept—one that too many of you are trying to dance around with faux legal arguments and silly “tough-on-terrorism” rhetoric.
Thank you wishbone. I’ve been trying to say something along those lines, but couldn’t manage to do it without being a total ass.
Tom Tommorow is crowing about Emmanuel Goldstein.
http://thismodernworld.com/2644#comments
Why is it that I’m overwhelmed with the detail, substance and overall heft of the discussion here as opposed to Tommorow’s place?
I think one can safely ignore any lib commentator who brings up the latest talking point bogeyman—the fearsome and dastardly “unitary executive.”
<blockquote>This “Congress should cut off funding†argument, while clearly popular around these parts, is lame.<blockquote>
From someone who champions the Constitution, MF–that’s a mighty unconstitutional straw man you throw out there.
And yeah, I’ve seen Congress do some VERY specific cutting in all kinds of areas–so can your skepticism that such things happen. They do.
Clearly the program as it now functions is not subject to FISA. See how maddening it is to use that word in this discussion?
P.S.: I didn’t expand the argument to renditions–you did. Just so you know, nothing about that program is “clear” either. Because, as I have said at least 500 times in various threads–it’s classified.
Jim:
If you’re not ignoring this post, let me just point out that the “the fearsome and dastardly ‘unitary executive,’” as you’ve called it, is a serious legal theory being argued by serious people within the Administration. It is also a bad legal theory that the courts would reject (if they ever see a justiciable case) and Congress should be wary of. I’m not making it up. Poo-poo it all you want, but it’s the throy that brought us indefinite detention of Americans, torture, and warrantless domestic surveillance.
Did you read the recent Newsweek article? I’d suggest doing so before discussing legal issues implicated by the NSA story.
</blockquote>a bad legal theory that the courts would reject
warrantless domestic surveillance<blockquote> (Emphasis mine. At least you didn’t call it “spying” or “wiretaps.”)
Keep going, MF.
It’s all becoming clear to me now.
Come on, Martin – can’t you see that what the Court actually decided in Hamdi is far less persuasive than what MF thinks it might have decided in Padilla? Get with it, man!
Mark A Knight, You seem to think that the various nasty things you say Bush can’t do are self-evidently not “part and parcel of the use of military force against Al Qaeda and other terrorist organizations and to protect the homeland from such organizations.” Why couldn’t they be if Bush says they are?
No, I’ll happily concede you that argument and so will any FISA judge. The only arguement I have to make is that we shouldn’t, and legally can’t, just take Bush’s word for it that every one he’s surveilling is so connected, we should at least have a judge agree. Why is the right suddenly so trusting of the jackbooted thugs in the government? By your lights the President could do everything you suggested because he’s the only one who determines what is part and parcel etc.
Again, why would they bother being careful without any oversight?
And how is “applying for FISA warrants regularly” not going through a judge?
Retief, nice use of the “jack-boot” bogeyman. Sorry, no takers here unless you want to discuss cooking kids in Waco. The intelligence apparatus is not interested in your kung pao takeout orders. Sorry.
Now Bubba might have been interested in your FBI file, but I digress once again.
Quote “Why is the right suddenly so trusting of the jackbooted thugs in the government?”
jackboot – A stout military boot that extends above the knee.
A person who uses bullying tactics, especially to force compliance.
The spirit sustaining and motivating a militaristic, highly aggressive, or totalitarian regime or system.
Really, is that necessary?
When you go into that sort of characterization, you really lose a set of ears here.
One more thing, Retief. I do take it on faith that if the NSA professionals thought that something was illegal or unAmerican–they’d let us know.
But, you believe them to be jackboots, so…can I suggest a good tinfoil haberdashery?
Just to reemphasize my earlier point, contra Jim in Chicago, Bush himself has used the term “unitary executive” in signing statements a whopping 82 times since he became President.
But don’t worry—it’s just a “lib” “talking point bogeyman.”
By the way, if you think I’m making this all up, read this article. It’s quite informative.
Retief:
Because they always have the right to challenge the surveilance/search/seizure in court.
(Sorry I made a mess of that quote. I wanted it in context without copying the entire post.)
From the screechfest in MF’s latest link in Slate by Dahlia Lithwick:
Yep, that’s some case you’ve made there.
Civil liberties dropping left and right as far as the eye can see.
T-I-R-E-S-O-M-E
I’m a little scared. I just check under my bed, and I’m pretty sure I saw a unitary executive. Is this the end for me?
Jim, I lost my left pinky-toe to a unitary executive back in ‘85. Woulda lost the whole foot, too, if I hadn’t had mah trusty shotgun on the nightstand.
Why is the Left so concerned about ecumenically-minded executives?
Ohhhhhhh….Unitary.
Never mind.
Folk wisdom passed down through generations says that if a unitary executive bites you, you become one.
Lithwick informative, MF?
That’s the funniest line on this blog today. 8-)
MF, dude, you bring a Newsweek article to Protein Wisdom? That’s not even the Jets against the Crips. It isn’t even a slingshot at an UZI-fueled hip-hop awards show. That’s, that’s, why, that’s a catatonic armadillo at a Pilobulus show. Holy wimpout, Batman.
The “article” by Dahlia Lithwick, huh?
Moving on. As to the dreaded unitary executive, which MF asserts is the road to constitutional Hell, this paper – http://law.vanderbilt.edu/faculty/pubs/yoo-unitaryexecinmodernera.pdf – is instructive about the position of pretty much all the presidents from Washington through Bush 43. This particular paper deals with the period from Truman to Clinton, but it references earlier papers by members of the same team (Christoper S. Yoo, Stephen Calabresi, and Anthony Colangelo from Vanderbilt Law) concerning unitary executive theory from the beginning. From the conclusion:
Yoo clerked for Justice Kennedy, among others, and is on the faculty at Vanderbilt; Calabresi for Scalia and on the faculty at Northwestern; and Colangelo I can’t find, unless he’s a Broadway child star. Whatever. In any event, it would appear that the unitary executive is perhaps not the Enormous Danger to Civil Liberties that MF posits, but rather kind of the normal way of things.
Again, is the problem that we haven’t been in a war that’s both “hot” and existential for too long?
Well you see, Jamie, Vanderbilt law papers do not hold the same legal weight as MF’s deep thoughts.
Plus, Bush is Nero, Napoleon, and Nixon all rolled into one. (Hitler would ruin the alliteration.)
“Unitary executive” means the executive power of the US government is contained within a single office: the Presidency.
I don’t get how this is any more of a threat to freedom than any other part of the Constitution.
Exactly, Robert, the term refers to a theory about the independance or lack thereof of agencies like the FCC.
Jeff: While I am one of those whom you dismiss as “civil libertarian absolutists” who are thoroughly convinced that President Bush is flagrantly violating the law, and that that is why—as the recent Newsweek article sets forth— some dissenting conservative lawyers in the Office of Legal Counsel and DoJ left their posts, you are right that the lefties getting their undies in a wad over the Unitary Executive theory have it all wrong. I’m pretty partial to the UE theory, and it has nothing to do with Yoo et al’s quite extreme notions of limitless Executive power in the name of the war on terror.
The Unitary Executive stole mah car!
You may be convinced, but that doesn’t make it true. Fer crissake, neither the FISA court nor Congress agree with you!
You may be convinced, but that doesn’t make it true. Fer crissake, neither the FISA court nor Congress agree with you!
That is preposterous. There is dicta—not having to do with the NSA matter—in one FISA court opinion on the mere issue of “inherent authority,” and the Congressional Research Service seriously doubts that what Bush is doing is legal.
Do you believe that Sens. Brownback, McCain and Hagel, as well as conservative, former Bush lawyers Goldsmith and Comey, are all morons or lefties? Is Bob Barr? Former Reagan DoJ and arch-conservative lawyer Bruce Fein? They all think Bush is behaving ilegally.
Is Orin Kerr over at Volokh deluded? He has looked at the S. Ct. justices’ individual sets of jurisprudential postures, and concluded that that body would find 8-1 against Bush. (And he made that calculation as if Alito were on the Court.)
What Bush is doing is illegal.
I was taught Con Law by a devout Catholic and Republican who was in the Reagan Justice Dept., a supremely honest and brilliant fellow named Doug Kmiec. (I chose the Notre Dame Law School where Kmiec was then because, precisely because, I didn’t want a huge cohort of lefty law profs. Kmiec contributes to National Review.) He has been quoted as saying that what Bush is doing could only be justified legally in the immediate months after 9/11. He has further said the problem for Bush is the legal advice he is receiving.
From an AP story, quoting one of the most conservative, pro-GOP law professors on the planet, Doug Kmiec, whom I referenced above:
Whole thing:
http://apnews.myway.com/article/20051220/D8EJS3RO0.html
An interpretation of the AUMF that has an expiration date? A bizarre opinion unsupported by any actual … you know … textual language.
I kinda knew you’d pick up on that one as soon as I posted it. I was hoping you’d also pick up on the context. You didn’t, so I guess I’ll have to expound on it …
Last time I checked, the program only dealt with International calls. Assuming that someone warrants enough alarm that the Administration deems it necessary to surveil him more intensely (including the person’s domestic calls), they will apply for a FISA warrant.
Maybe I should have added “where necessary”?
Mona, you cannot possibly be serious. Do you have any idea how idiotic that sounds? How utterly baseless an argument like that is? To suggest that legal authority, much less Constitutional Executive Authority, fades over time like the paint job on an ‘84 Yugo, not to mention that we are, in fact, at war, is fatuous on it’s face.
Don’t get me wrong, I love it when someone tries to tweak Jeff’s nose and weaken his dialectical grip, but if that’s the best you’ve got, jeez, you are packin’ no Schlitz…
surf-actant
Wishbone,
Isn’t that what just happened? Aren’t you busy holding your hands over your ears so that you can’t hear the NSA whistleblowers?
Martin A. Knight, Last time I checked nobody knew the extent of the program, and per Bush, nobody needs to know. Why would he go throught the steps you’ve outlined when Bush and Gonzales’ own argument is that if FISA claims to constrain their ability to surveil, it is unconstitutional?
<ul>Aren’t you busy holding your hands over your ears so that you can’t hear the NSA whistleblowers? </ul>
These people are not whistleblowers … they’re partisan hacks.
A real whistleblower would have gone to the NSA Inspector General, demanded a closed session of the Congressional Intelligence Committees where he/she would have told all he/she knew to those with the clearance, or followed the myriad of other procedures and avenues provided by nation’s whistleblower protection statutes so that he/she could make his/her concerns known.
He/She did none of these things. He/She went to the house organ of the DNC … the New York Times. And I’d bet my privates that the New York Times is not one of the persons or entities entitled to such information.
Whistleblowers, my ass …