Nah. It’s because the one doing it is “their guy”. If it was “the other guy” doing it, they’d be talking about revolution.
-Joe
It doesn’t have to mention it expressly. The Constitution does little of that. This power is nonetheless contained in powers that are granted the President. The Constitution does not limit the President’s executive power. He is specifically granted the ability to pardon and give clemency. Because of this, it is clear that the founding fathers recognized the need to be able to make exceptions to law and that power is clearly vested by executive authority. So, if the President issues an executive order to conduct a wiretap, it is legal.
Wisely, this power is limited by the President’s inability to pardon himself and he is subject to removal for impeachment.
Further, the President is granted war powers, powers of emergency, and is the Commander in Chief of the armed forces. As such he has authority over intelligence gathering and counterintelligence in the service of National Security.
Good link here on broadness of Presidential powers (It’s against Clinton, but applies better to Bush)
http://www.cato.org/pubs/pas/pa-358es.html
War powers and powers of emergency clearly apply to this President in persecuting the war against terrorism as he is mandated in the infamous Iraq War Resolution which can be read here:
http://www.thescoop.org/files/iraqres.html
"Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 or harbored such persons or organizations;
Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;
Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107-40"
“The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
defend the national security of the United States…”
“SPECIFIC STATUTORY AUTHORIZATION. - Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”
It’s clear that the President has been granted war powers specifically in the “War against Terrorism.”
It was also enumerated in the 9/11 Resolution:
“Text of S.J. Res. 23 as passed September 14, 2001, and signed into law11Joint ResolutionTo authorize the use of United States Armed Forces against those responsible for the recentattacks launched against the United States. Whereas on September 11, 2001, acts of treacherous violence were committed against the UnitedStates and its citizens; Whereas such acts render it both necessary and appropriate that the United States exercise itsrights to self-defense and to protect United States citizens both at home and abroad; Whereas in light of the threat to the national security and foreign policy of the United Statesposed by these grave acts of violence; Whereas such acts continue to pose an unusual and extraordinary threat to the national securityand foreign policy of the United States; and Whereas the President has authority under the Constitution to take action to deter and preventacts of international terrorism against the United States; Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America inCongress assembled, SECTION 1. SHORT TITLE.This joint resolution may be cited as the “Authorization for Use of Military Force.”SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.(a) IN GENERAL. — That the President is authorized to use all necessary and appropriateforce against those nations, organizations, or persons he determines planned, authorized,committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboredsuch organizations or persons, in order to prevent any future acts of international terrorismagainst the United States by such nations, organizations or persons.(b) WAR POWERS RESOLUTION REQUIREMENTS — (1)SPECIFIC STATUTORY AUTHORIZATION — Consistentwithsection 8(a)(1)of the War Powers Resolution, the Congress declares that this section is intended toconstitute specific statutory authorization within the meaning of section 5(b) of theWar Powers Resolution.(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolutionsupercedes any requirement of the War Powers Resolution.”
The War powers issue is itself controversial as every President since it’s passing has asserted that it interferes with his Constitutional mandates as Commander in Chief:
http://en.wikipedia.org/wiki/War_Powers_Resolution
“Every President since the War Powers Resolution’s enactment has taken the position that it is an unconstitutional infringement by the Congress on the President’s authority as Commander in Chief. The courts have not directly addressed this question.”
Certainly, this gives food for thought and serves as a cite for my example of the President resisting laws that he deems infringe on his Constitutional powers.
So, whether or not the President normally has these powers, they have been granted to him twice in Joint Resolutions.
In fact the powers of the President are so broad and unlimited that there is concern of “Constitutional Dictatorships” that can occur in times of National Emergency when the President does assert his full athority, i.e. Roosevelt after Pearl Harbor.
Dated but prescient article here:
I hope this makes a start as a return for the level of thought and effort you put into your work.
It does. It seems to be a restatement of the two arguments proposed by this administration in it’s defense of violating FISA. The first is that the AUMF, which you quoted extensively, authorizes the President to wiretap citizens. This argument is quickly dismissed by the clear language of the statutes in question. As Bricker, Gfactor, or any attorney can point out, a statute cannot be overriden unless there is specific, express language doing so. The AUMF did not purport to, and in its language did not, grant the President the power to violate the law. In addition, FISA specifically considered the possibility that war may occur, and authorized the President to conduct warrantless surveillance for 15 DAYS following the declaration of war. Where a statute specifically states what is authorized, you can’t overrule that by some general grant of AUMF. It’s ridiculous to say that a vague grant of force allows the President to violate the law.
The other three arguments against relying on the AUMF are: 1) Congress cannot repeal a prior law without specific reference to it. The AUMF cannot repeal FISA. 2) The AUMF was enacted after the President refused to amend FISA because, according to Gonzalez amending FISA “would be difficult, if not impossible.” It is completely nonsensical to argue that this administration believed FISA could not be amended to allow the warrantless wiretapping and then that Congress intended to overrule FISA. Not that this administration has any qualms being non-sensical, but luckily, we’re more realistic here. 3) The warrantless wiretapping of US citizens is not, and has never been, a fundamental aspect of war.
This argument is one I hadn’t heard before. You seem to be saying that, since the President has the Constitutional authority to pardon, the President can violate any law it wishes. Personally, I find it completely unpersuasive, but it is a novel argument.
This is the second of this administrations’ arguments that it has the power to violate the law. Rather than repeat myself endlessly, I would point out that, as you agreed, the President’s power over national security is not limitless. The most obvious, and Constitutional way of limiting the power, is to pass a law. Congress did just that, and that law needs to be respected.
With the quasi-legal arguments flushed out, I’m interested in your policy arguments. Why would you, an apparent conservative, grant such power to one person? Is there no limit, in your world, to what a President could do under the guise of national security? Did you feel this way when our President sold arms to Iran to fund the contras? Was he entitled to break the law then? Once you let the President break the law for “national security”, what limit is there?
Personally, I prefer a system where even the President is bound by the law. Of course, YMMV.
Without looking again, didn’t it say to use whatever means are necessary, or appropriate? Also, doesn’t it go with war powers? Obviously killing people is illegal, but in a time of war or in an emergency it’s understood that it’s going to happen and I don’t think anybody is contemplating charging Bush with murder for invading Iraq.
We’re back to the argument of whether or not the Pres is beholden to FISA and neither of us seem to be making headway agains the other.
In the Constitution, the scope of the Presiden’t executive power is left essentially open and unlimited. Clearly, he has been given the authority to supercede laws and grant pardons on a case by case basis. This is not an uncommon setup among successful bureacracies and is necessarily a part of the corporate model. The person in executive authority typically has exception power. It seems clear that’s what the founding fathers intended when they gave the President the right to pardon and give clemency.
If you think about it, it does make sense and it’s a model that’s oft repeated.
At risk of repeating myself, I again disagree. The laws must be respected insofar as they do not infringe upon Constitutional powers. When they do, they need not be respected unless the ammendment process has been followed. Congress cannot pass a law restricting or altering the Constitutional power of the President any more than the President can issue an Executive order restricting or altering the Constitutional power of the houses.
I think we agree on that. Where we disagree, and where I see little hope of resolution is in deciding what powers are Constitutional and which aren’t. I don’t think this disagreement means either of us are stupid. I think the Constitution is vague and somewhat open for interpretation.
This is a really interesting question, and I propose we focus on it. First off, I didn’t grant this power. The Founding fathers did (assuming I’m right, and it’s there.)
Secondly, I do think a powerful executive makes sense subject to certain controls. Elections, term limits, impeachment… they all check the President’s power. It is a necessity, imo, that we have someone who can act fast and interpret law and make exceptions for the good of the country so that we do not get hung up in interminable bureacracy. I think that’s the President’s role.
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
It says absolutely nothing about allowing the President to break the law, to wiretap without a warrant, or gather telephone records. You’re reading of “necessary and appropriate force” is sickeningly broad, and, apparently this administration is convinced American citizens are terrorists.
“War powers” as you use the general term certainly includes the interception of foreign communications. What it doesn’t allow is the warrantless wiretaps of US citizens. What does authorize warrantless wiretaps in the case of war is FISA, which specifically grants that power to the President. For 15 days.
And we likely won’t until you admit I’m correct. This administrations argument that FISA somehow is unconstitutional is legally laughable.
Bullshit. The founding fathers never envisioned the President as above the law. It stretches the boundries of logic to think that, by granting the President the power to pardon, the Constitution allows the President to ignore the law.
It makes no sense, and it’s not an acceptable political model. We left tyranny and monarchy behind 200+ years ago, why would we want it revived now.
And, once again, warrantless wiretapping of US citizens is not a power granted to the President by the Constitution. In fact, halting the abuse of powers by conducting illegal searchs is one of the main reasons for the Fourth Amendment.
I agree. You may be wrong, but you’re not stupid.
Which is precisely why FISA trumps some vague, unenumerated, imaginary power of the President. The founders meant the Constitution to be vague, and to grant the power to Congress and the President to make laws to fill in the blanks. Congress and the President did just that in 1978, they said what the law is. This administration has unilaterally decided they don’t care what the law is. That’s not how our system of government is supposed to work.
No one is, nor should be, above the law. What Bush has done is nearly identical, in general to Iran/Contra; ignored the law to do whatever they wish. It wasn’t right 20 years ago, and it’s not right now.
I know it’s not a new observation, but I am nevertheless repeatedly re-astonished by the recognition that ostensibly limited-government conservatives seem entirely unbothered by the idea of the President as an unchecked dictator.
Yeah, they didn’t think his power was so unlimited when one was getting a blow job.
especially citing the Constitution. why bother w/judicial and legislative branches if the executive branch on its owncan ignore them, unchecked?
As I noted above, I honestly believe he doesn’t grasp at all the American ideals he says he stands for.
Yeah. You’ve said it before. It was not an accurate representation of what I was saying before, and it’s not now, so it’s hardly a surprise that you express incredulity at your own hyperbolous claim.
“Unchecked dictator” is a an absurd mischaracterization.
Except as appropriate and necessary.
I dunno. As I mentioned, other Presidents, Congresses, thought that this kind of thing might be necessary which is why they put the apparatus in place. And, the fact is that some American citizens are terrorists. The problem is that in a highly technological society the capacity for destruction by a few kooks is very large.
I kinda thought we’d acknowledged that we weren’t making headway on this. FISA isn’t binding. That’s my stance.
You can laugh all you want, but they’re making it stick, and you’re team has been pretty inneffectual at stopping them. You may argue that it’s because they are spineless cowards. I tend to think that it’s more that their arguments lack legal merit.
I don’t think he can ignore it, but he is in a special position with regards to law and the powers that he has to pardon and legislate by executive order.
It’s not tyranny or monarchy. It’s a classic argument between the weak executive position and the strong executive position. We don’t get anywhere by hyperbolizing an opposing position to the point of absurdity.
This is a good point you bring up. Clearly the issue of these wiretaps as relates to interception of enemy intelligence is a difficult issue. That this is the goal of what the President is doing seems agreed upon. The methods are not. Let me make up an example: In WWII Nazi operatives broadcast within the states. In order to intercept those messages we needed to listen to and monitor the airwaves domestically. Granting that the joint resolution declares war on terrorism how is monitoring cell phones (as an easy example) any different?
I think it is, and I think we need a good model and I don’t think FISA is it. Just curious about your thoughts as you claim illegality for this practice, do you not?
We’ve covered this ground a couple of times, so I’d rather not repeat again if that’s ok.
I don’t think that he is above the law. The question is what is the law and how does it apply?
As of today, yes. However, could you tell us what in your view of the president’s powers would keep him from being an unchecked dictator, short of impeachment? Is locking up US citizens without benefit of legal counsel legitimate in your view, because of the “emergency?”
I’d also like to know why the President did not request the Supreme Court rule FISA unconstitutional. Is it your opinion that the President can unilaterally rule laws he does not like unconstitutional, and ignore them, without judicial review?
Also, please give some cites from the Federalist papers or other contemporary accounts supporting your view that the founding fathers intended to give the President such powers. I fail to see how the very specific power of the pardon can be extended to the power to ignore any law. One would think that this would be something they would want to make explicit. The Declaration does not have the force of law, of course, but I for one find it very odd that you would think they would authorize the president to commit the same act the declaration rails against so soon after it was written.
Why short of impeachment? Is that not a pretty strong check? This was discussed interestingly in an article I cited earlier about emergency powers and constitutional dictatorships.
Yes. In theory it is. You seem to think that because I beleive the President has broad discretionary powers I also beleive he is free from responsibility and consequence if he abuses them. I think the more extreme use the President makes the more scrutiny it recieves and the more review it gets. If it is found to be abusive there is a clear path to stopping him.
I could be wrong, but I think they hear cases. I don’t think they simply issue rulings without there being a case.
No. The Supreme court would be the final authority as to that.
I did show some contemporary cites earlier and I think it’s clear in the Constitution.
That’s not my position. My position is that the power of pardon to others given to the President means the intent exists to allow the President to render exceptions. This also follows from his power of executive orders.
If the emergency were great enough, why not dispute the power of impeachment - since it seems okay to ignore several amendments. But your position that the president need not obey the rule of law up until he is convicted is sad enough.
So, clearly violating the Constitution is okay up to the point of impeachment and conviction? Words fail me.
I’m sure the AG is plenty clever enough to set up the proper case, even if this is necessary. I seem to remember that some of the executive privilege issues from Watergate went to the SC directly. In any case, the proper procedure for an executive would be to follow the law until it is ruled unconstitutional. Perhaps Mr. Bush has forgotten the oath he took.
Actually your forgot one - veto power. The pardon is not an exception - it is a specifically ennumerated power of the president. (A balance to the judiciary, in fact.) Why not state that because the president can veto a bill, he can effectively veto it later, having changed his mind, and thus can ignore any law. This is just as logical as your position, if not more so.
Your contention that the Constitution lets the president take on great powers in times of crisis is less than convincing. The requirement that Congress declare war (though pretty much ignored these days) shows that the they wished the balance to be maintained even in times of crisis. If you are okay with the president violating the law even in this very low grade crisis, where the existence of the republic is in no way at risk, I’d hate to think what you’d find acceptable in a real crisis. Dictators of all stripes have always managed to find a crisis that excuses their assumption of excessive power. The only difference I see here is that he’s in your party.
No. No. No. No. No. I am reaching the same frustration level I did earlier, because, although you purport to be responding to my statements, it’s really nothing other than the typical, __________ did it too!!! There is an appartus in place that makes it possible to wiretap US citizens. There is also an appartus in place that makes it illegal to do so.
And some, hell probably 100, no make that 1000, nah, lets go with 10,000 times as many Americans are criminals. Would you support repealing the 4th Amendment to catch the bad guys. It’s nothing more than a product of the fear-mongering going on. Sure there are terrorists in our midst. If the government knows about them, get a fucking warrant. You don’t even need to prove their terrorists, just probable cause, or reasonable suspicion.
I got your stance. Really, you’re not talking past me, I got it. What I said was that your amorphous “War Powers” does not cover the wiretapping of US citizens. FISA does that by specifically granting the power to wiretap US citizens to the President in cases of war. For 15 days.
So, you’re trusting the legal judgement of a bunch of politicians. You must hold them in very high regard. That’s something I’ll remember. Me? I don’t put much, let alone that much, faith in most politicians.
First, I’m not denying his power to pardon. But it’s the gigantic chasm you make by leaping from the pardon power to being in a “special position” that allows him to ignore the laws. Secondly, executive orders are not in the Constitution, nor do they allow the President to “legislate”. Legislation is done by Congress. Part of those damnable separation of powers.
Find a word suitable to you that describes the ability of the President to violate the law as he deems fit. That’s a tad more than just a “strong executive position”.
There are way too many variables to answer. Are they regular radio waves? Is there a recognized reasonable expectation of privacy? Are the Nazi operatives US citizens? A cite would be helpful.
All of which is, of course, beside the point. Even had FDR had done it, it WASN’T ILLEGAL then. It’s kinda silly to compare an action that was legal when done with one that is illegal. And, to anticipate your next retort, I’ll again point you to the Youngstown Steel case regarding Presidential power. There is another chasm of difference between exercising a unenumerated power while Congress is silent on the issue, and doing it in direct contravention of the law.
No, there is no real question as to what the law is and how it applies. The law makes it illegal to wiretap US citizens, and it applies to everyone. Nothing you, this administration, or the talking heads have said in any way rebuts the idea that this administration is violating the law. What the argument is over is whether the law, itself, is unconstitutional.
This is yet another attempt to spin the situation to help this administration. The burden is much higher to show a statute is unconstitutional, so the issue is spun as “whether the law applies to the President.” With a presumption of constitutionality, prior DOJ statements saying FISA is constitutional, and the fact although it’s been in court before noone had challenged its constitutionality, it is a losing argument that FISA is unconstitutional. So you get an attempt to redefine what the President is doing. Throw in attacks on those who challenges the President as weak on national security and more fear mongering, and you’ve got a situation like where we are now, where the party in power hasn’t the balls to hold the President accountable.
One thing I’m curious about is this:
Scylla, how did you go from this:
which you posted on 5/11/2006, to what we see two weeks later: desperate spinning and obtuse reasoning (the President can pardon, therefore he needn’t follow the law?) in an attempt to defend this thing. (Hamlet, by the way, kudos to your persistent efforts to see this one through.)
My honest belief is that the explanation is one of two things. Either the above post was a feint, and your real intention was to defend this no matter what, or you are carrying on now in a less than heartfelt argument just for the sake of arguing (which I have a recollection of you doing before - I think it was about the Republicans’ southern strategy, but I could be wrong).
Okay, a third possibility is simply that you fell back into lockstep after a brief dalliance with integrity.
In any event, it is hard to reconcile your current line of argument with one who initially felt that this behavior by Bush was wrong.
You forget option four - he hadn’t gotten his instructions from those who do his thinking for him, so he was lost, alone, and confused.
But then he turned on the good ol’ AM Radio and everything had been pre-thunk for him, so he could return to his usual self.
-Joe
You can’t expect him to change a lifetime habit overnight… 
279 posts into this discussion may I ask whether anyone is making a distinction between a)listening to conversations and b)developing a database of calls between two telephone numbers?
I thought that was a factor in the whole debate but I could be wrong about that.
Shrug.
So far, I’ve seen absolutely nothing to convince me that I was ever wrong in my basic beliefs/statements…
The Unitary Executive is a work of fiction. No situation - terror, war, the rise of Nyarlathotep and Cthulhu, nothing, justifies the suspension or cancellation of the Constitution or the ammassing of unprecedented power in one branch of overnment- especially when that is done based on the whims of one man (the president, or his Attorney General). There is nothing in the Constitution that allows for any government officer - presidents or congressmen - to do anything that has already been forbidden by law, unless they have taken the constitutional steps necessary to change that law. There is nothing in the constitution that allows signing statements, either by Reagan or Bush, or anyone else - they can sign or veto and that’s it.
Finally, any excuses about having to fill out a form or provide evidence/jusytification to the court are bullshit.
The law is spelled out in FISA. End of story. Wiretapping, eavesdropping, data-mining, all that must be authorized by the courts.
It’s telling that the news reporters are apparently being monitored too, probably as a way to intimidate them or dry up “unfriendly” sources.
What does all of this really do about terrorism? Absolutely nothing.
Finally, anyone who thinks it is OK to toss the constitution, vest unlimited surveillance power and various other “emergency” powers in any one man, and then say it’s making us all safer, is a sucker.