Nixon's Ugly Little Head Pops Up Again
Digby summarizes the administration's recent 'yeah, we broke the law, so what?' position:
Look, the problem here, again, is not one of just spying on Americans, as repulsively totalitarian as that is. It's that the administration adopted John Yoo's theory of presidential infallibility. But, of course, it wasn't really John Yoo's theory at all; it was Dick Cheney's muse, Richard Nixon who said, "when the President does it, that means it's not illegal."
Glenn Greenwald also picks up the Nixon/Yoo connections, and adds this:
The country has, more or less with a quiet complacency, stood by while this Administration imprisoned American citizens with no due process, while the Administration sanctioned torture and then used it to extract "evidence" to justify those detentions, and while the Administration exploited the fear of terrorist acts to bestow onto itself unprecedented powers.
If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.
'Athenae' over at First Draft offers these observations:
Atrios says the president is a criminal. True, but reductive.
The president is a vigilante.
It's not just that he broke the law. It's that he's now saying, proudly, I broke the law, and it's okay because my friends (the heads of Senate committees who were briefed) said so, and it's okay because the people I broke the law to spy on were bad people.
And finally, we hear from Scrivener's Error:
Technically, Bush's arrogation of judicial authority was not treason. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (Art. III, § 3, cl. 1). It was only a betrayal of his oath of office, which requires him to "protect and defend the Constitution against all enemies, foreign and domestic." Presumably, that includes himself.
Look, the problem here, again, is not one of just spying on Americans, as repulsively totalitarian as that is. It's that the administration adopted John Yoo's theory of presidential infallibility. But, of course, it wasn't really John Yoo's theory at all; it was Dick Cheney's muse, Richard Nixon who said, "when the President does it, that means it's not illegal."
Glenn Greenwald also picks up the Nixon/Yoo connections, and adds this:
The country has, more or less with a quiet complacency, stood by while this Administration imprisoned American citizens with no due process, while the Administration sanctioned torture and then used it to extract "evidence" to justify those detentions, and while the Administration exploited the fear of terrorist acts to bestow onto itself unprecedented powers.
If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.
'Athenae' over at First Draft offers these observations:
Atrios says the president is a criminal. True, but reductive.
The president is a vigilante.
It's not just that he broke the law. It's that he's now saying, proudly, I broke the law, and it's okay because my friends (the heads of Senate committees who were briefed) said so, and it's okay because the people I broke the law to spy on were bad people.
And finally, we hear from Scrivener's Error:
Technically, Bush's arrogation of judicial authority was not treason. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (Art. III, § 3, cl. 1). It was only a betrayal of his oath of office, which requires him to "protect and defend the Constitution against all enemies, foreign and domestic." Presumably, that includes himself.
Tags: Corruption, High Crimes
posted by Management at 8:44 PM
4 Comments:
Friday, December 16, 2005
If The President Does It It's Not Illegal
by digby
Oh for Gawd's sakes. Tom Brokaw is on Matthews boo-hooing that this NSA story stepped on Junior's wonderful Iraq triumph. He explains that when you are at war you need to do things that are difficult and believes that most people in the country will agree that the administration needed to spy on Americans after 9/11. He agrees with analyst Roger Cressy (who I used to think was sane) that once the "window" of a possible impending attack closed they should have gone up to the hill and sought permission to keep spying on Americans with no judicial oversight. (I haven't heard about this "window" before. Tom and Roger both seem to have a fantasy that the administration would not simply say that the "window" remains open as long as evil exists in the world.)
Look, the problem here, again, is not one of just spying on Americans, as repulsively totalitarian as that is. It's that the administration adopted John Yoo's theory of presidential infallibility. But, of course, it wasn't really John Yoo's theory at all; it was Dick Cheney's muse, Richard Nixon who said, "when the President does it, that means it's not illegal."
This was not some off the cuff statement. It was based upon a serious constitutional theory --- that the congress or the judiciary (and by inference the laws they promulgate and interpret) have no authority over an equal branch of government. The president, in the pursuit of his duties as president, is not subject to the laws. Citizens can offer their judgment of his performance every four years at the ballot box.
After the election, George W. Bush said this:
The Post: ...Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?
THE PRESIDENT: Well, we had an accountability moment, and that's called the 2004 election.
He, like Nixon, believes that the president has only one "accountability moment" while he is president. His re-election. Beyond that, he has been given a blank check. And that includes breaking the law since if the president does it, it's not illegal, the president being the executive branch which is not subject to any other branch of govenrment.
John Yoo, the former deputy attorney general who wrote many of the opinion undergirding these findings (on torture as well as spying) explains that the congress has no right to abridge the president's warmaking powers. Its only constitutional remedy to a war with which they disagree is to deny funding; they can leave the troops on the field with no food or bullets.
I suspect that there are many more of these instances out there in which the administration has simply ignored the law. They believe that the constitution explicitly authorizes them to do so.
After 9/11 these people went crazy and convinced themselves that the country was in such mortal, exitential danger that this theory of imperial presidential perogative was a necessity. They say they are doing it to protect the citizens of this country. But one thing that American conservatives used to understand was that our system of government was forged by people who understood that too much power invested in one place is dangerous and that sometimes the people needed to be protected from their own government. That's fundamental to our laborious process of checks and balances and a free press. (Indeed, it was that principle on which they based their absolutist stand on the second amendment.)
Now we hear conservative commentators like Ronald Kessler, who was just interviewed (alone) on FoxNews, opining that the president did nothing illegal and was completely within his rights to spy on Americans. There is no longer any question that the government would ever abuse its power by, for instance, spying on Americans for political purposes and even if it did, we're fighting for our lives and we have to accept these infringements for our own safety. I'm quite sure he'll agree that a President Howard Dean should be given the same level of trust, aren't you?
I think the president said it best:
"If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator."
Update:
A commenter to Larry Johnson's post over at TPM (reminding us that John Bolton was involved in some doing about NSA intercepts and American citizens) gives a nice historical view of the Yoo Doctrine:
Re: Spying on Americans and John Bolton (5.00 / 2) (#31)
by JamesW on Dec 16, 2005 -- 06:23:50 PM EST
The second part of the Yoo Doctrine is critical: it's the President, not Congress, who decides whether the country is at war or not.
In an extreme Tory argument, Yoo can just about argue that this was English 18th-century doctrine, but since Parliament rigorously controlled the purse-strings, it surely wasn't practice after 1688. [Yoo does make this argument --- ed] I doubt if English Whigs like Fox accepted the theory either, let alone American rebels.
Where Yoo surely parts company with any sane constitutional thinking since the Roman Republic is the extension that the monarch/president gets to decide what counts as a war. For George III, George Washington, Lincoln. Woodrow Wilson and FDR, war is an organised conflict between societies or social groups. Police actions against pirates, slavers, and terrorists are not war. By treating the rhetorical "war on terror", infinitely redefinable, as a real war with war's legal consequences, the Bush administration has entered the 1984 terrain of totalitarianism.
So no innocent people were spied on.
That's okay, then.
God, what were we all so upset about?
Had I known, you see, all along that it's okay to harm the guilty, I'd have done a lot more to make the world a better place. Run down some drug dealers with my car. Bought a gun off that guy who offered to sell me one in college and shot the asshole ex-neighbor who used to beat up his kid. Murder's against the law, of course, but I'd only kill the ones who meant to cause others trouble.
Pet store near my house rips people off. Sold a girl I know a sick animal and then said it was her fault when it died. Think I'll go boost some food and litter from the place. Stealing's against the law, but they're crooks. They deserve it.
I've got a neighbor, comes and goes at all hours. Would love to get into his apartment and find out what it is he's up to. It's against the law, breaking and entering, but I'm pretty sure he's up to no good.
If only I'd known all these laws were only to protect me, not the criminals. If only I'd known laws were malleable that way, that they changed depending on the intent of the lawbreaker, oh, the things I could have gotten done. The better world I would have made.
Atrios says the president is a criminal. True, but reductive.
The president is a vigilante.
It's not just that he broke the law. It's that he's now saying, proudly, I broke the law, and it's okay because my friends (the heads of Senate committees who were briefed) said so, and it's okay because the people I broke the law to spy on were bad people.
They were, after all, Muslims in America.
That's okay, then.
A.
A few months ago, I quoted a distinguished American jurist who, by telling the truth, has essentially forfeited any opportunity to serve on an appellate court. After overseeing the trial of and passing sentence upon a terrorist, he said:
The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.
US v. Ressam, No. 99cr666 (W.D. Wash., Jul. 27, 2005) (Coughenour, C.J.).1 It appears, though, that the Students for a Democratic Society would have been perfectly at home with the way the current Administration handled domestic surveillance in the aftermath: with implicit (and often explicit) disdain for the third branch of the government.2 Apparently, the Administration doesn't believe that judicial oversight is consistent with defeating terrorism.
The NSA "authorization is a vital tool in our war against the terrorists," Bush said. "It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties." Congressional Democrats and some Republicans have expressed outrage at the NSA program, saying it contradicts long-standing restrictions on domestic spying and subverts constitutional guarantees against unwarranted invasions of privacy. Some were further incensed by Bush's remarks Saturday. "The president believes that he has the power to override the laws that Congress has passed," said Sen. Russell Feingold, D–Wis. "He is a president, not a king."
Peter Baker, "Bush Comes Out Swinging for Spying Program," Seattle Times (18 Dec 2005) (fake paragraphing removed for clarity).
Based on this Administration's actions and rhetoric, I somewhat disagree with Senator Feingold. Although Bush may not be a king, he appears to aspire to being one. Of course, he can't actually be one; the Constitution prohibits it: "No Title of Nobility shall be granted by the United States" (Art. I, § 9, cl. 8). That doesn't appear to have dampened his enthusiasim for wielding royal fiat, though.
Technically, Bush's arrogation of judicial authority was not treason. "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (Art. III, § 3, cl. 1). It was only a betrayal of his oath of office, which requires him to "protect and defend the Constitution against all enemies, foreign and domestic." Presumably, that includes himself.
1. I'm reasonably certain that the case number is merely a coincidence. Reasonably.
2. The Miers nomination only reinforces this conclusion. Even G. Harold Carswell was more qualified, and he sure as hell had fewer conflicts of interest.
Glenn Greenwald posted this
Bush's unchecked Executive power v. the Founding principles of the U.S. Underlying all of the excesses and abuses of executive power claimed by the Bush Administration is a theory of absolute, unchecked power vested in the Presidency which literally could not be any more at odds with the central, founding principles of this country.
As this morning’s New York Times analysis put it in describing the rationale behind the Adminstration's violations of Foreign Intelligence Security Act, pursuant to which it has been secretly spying on the commuincations of American citizens without judicial warrants:
A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.
From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority.
As the Times reports, Bush's claim to absolute executive power has its origins principally in one document:
a Sept. 25, 2001, memorandum [by the Justice Department’s John Yoo] that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."
The notion that one of the three branches of our Government can claim power unchecked by the other two branches is precisely what the Founders sought, first and foremost, to preclude. And the fear that a U.S. President would attempt to seize power unchecked by the law or by the other branches – i.e., that the Executive would seize the powers of the British King – was the driving force behind the clear and numerous constitutional limitations placed on Executive power. It is these very limitations which the Bush Administration is claiming that it has the power to disregard because the need for enhanced national security in time of war vests the President with unchecked power.
But that theory of the Executive unconstrained by law is completely repulsive to the founding principles of the country, as well as to the promises made by the Founders in order to extract consent from a monarchy-fearing public to the creation of executive power vested in a single individual. The notion that all of that can be just whimsically tossed aside whenever the nation experiences external threats is as contrary to the country’s founding principles as it is dangerous.
It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.
Among recent Republican Administrations, this theory of the unchecked President is not new. Digby recalls Richard Nixon's endorsement of it, and the theory came to life in the Iran-Contra scandal, where the Reagan Administration unilaterally deemed it necessary to U.S. national security to arm the Nicaraguan contras and then asserted for itself the power to circumvent the law enacted by the Congress which prohibited exactly that.
But the situation we have now is far more egregious, and far more dangerous, because the Administration is not even bothering to pretend now (as the Reagan Administration at least did) that the Executive acts undertaken really did adhere to Congressional intent, or alternatively, to the extent that such acts violated Congressional mandates, the acts were simply the by-product of overzealous and rogue officials who broke the law without the knowledge or approval of President Reagan.
The Bush Administration’s position now is almost the opposite of that posture, in that the Administration is expressly claiming that the President does have the right to violate laws of Congress because his executive power is absolute and thus cannot be restricted by anything. And rather than applying this theory of unchecked executive power to a single case (as the Reagan Administration did in Iran-contra), the Bush Administration has arrogated unto itself this monarchical power as a general proposition, applicable to each and every issue which can be said to relate, however generally, to this undeclared "war" against terrorism.
This view of the Presidency – which now exists not just in odious theory but in real, live, breathing form vested in George Bush – is precisely what the monarchy-fearing Founders insisted should never occur and, with the enactment of the U.S. Constitution, would never occur.
This absolute power claimed and enthusiastically exercised by George Bush violates not just specific Constitutional limitations, but the core principles of the Constitution: that we are a nation of laws not men; that each branch shall be "co-equal" to the others and checked and limited by the other two; and that the people shall retain ultimate power by vesting in them the right to enact supreme laws through the Congress which shall bind all other citizens, including the President.
That the Bush Administration’s claim to unchecked and supra-legal Executive power is squarely inconsistent with basic constitutional principles is conclusively demonstrated by James Madison’s Federalist No. 48, which is devoted to the principle that liberty cannot be maintained unless each branch remains accountable and subordinate to the others:
It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.
Similarly, Madison, in Federalist No. 51, defined the central objective for avoiding tyranny as ensuring that no branch be able to claim for itself powers which are absolute and unchecked by the other branches:
What expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . .
In particular, Madison emphasized in Federalist 51 that liberty could be preserved only if the laws enacted by the people through the Congress were supreme and universally binding:
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.
Hamilton made the same point in Federalist No. 73. where he emphasized:
"[t]he superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, . . . "
To the Founders, the defining characteristics of the tyrannical British King was that he possessed precisely those powers which the Constitution prohibits but which the Bush Administration is now claiming it can exercise. From Federalist 70:
In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.
Based on the fear of such unchecked executive power, Federalist 69 emphasized that unlike the British King, who did possess the absolute power to nullify duly enacted laws , the sole power possessed by the President to negate a law enacted by the Congress -- including with regard to matters of national security and war -- is the President’s qualified (i.e., override-able) veto power:
Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. . . .
The one [the American President] would have a qualified negative upon the acts of the legislative body; the other [the British King] has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.
An extremely potent demonstration that the Bush Administration’s claim to unchecked Executive Power is fundamentally inconsistent with the most basic constitutional safeguards comes from one of the unlikeliest corners – Antonin Scalia’s dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004):
The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.
Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.
As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:
"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.
A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.
Both the Bush Administration’s theory of its own unchecked power and its indiscriminate and aggressive use of that power to violate Congressional law contradicts every constitutional principle created to ensure that we do not live under unchecked Executive tyranny. If the President is allowed to get away with secretly decreeing that he can violate the law and then doing exactly that, then there really are no remaining checks on Executive power -- and we have, without hyperbole, arrived at the very definition of tyranny.
The country has, more or less with a quiet complacency, stood by while this Administration imprisoned American citizens with no due process, while the Administration sanctioned torture and then used it to extract "evidence" to justify those detentions, and while the Administration exploited the fear of terrorist acts to bestow onto itself unprecedented powers.
If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.
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