Congress: Grow A Spine!

by hilzoy

From the NYT:

"The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush's domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.

The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.

But the legality of the program is known to have produced serious concerns within the Justice Department in 2004, at a time when one of the legal opinions was drafted. Democrats say they want to review the internal opinions to assess how legal thinking on the program evolved and whether lawyers in the department saw any concrete limits to the president's powers in fighting terrorism.

With the committee scheduled to hold the first public hearing on the eavesdropping program on Monday, the Justice Department's stance could provoke another clash between Congress and the executive branch over access to classified internal documents. The administration has already drawn fire from Democrats in the last week for refusing to release internal documents on Hurricane Katrina as well as material related to the lobbyist Jack Abramoff."

This is serious. Our President has already said that, in his opinion, all it takes to respect the checks and balances of our system of government is to tell eight members of Congress what he's doing, under conditions of secrecy so extreme that they were not allowed to discuss the program with anyone and had to stash handwritten letters questioning its legality away in safes. He has chosen to circumvent the courts set up to issue warrants for domestic surveillance. He is now defying the Congress, the only remaining branch of government that could possibly exercise any oversight over his actions, actions that a lot of people have argued are illegal. (see, e.g., here.) As Katherine said, he is asserting unchecked power to do as he pleases, without even allowing any sort of oversight of his actions.

This is intolerable in our system of government. If Congress has any self-respect or independence left, they will not let this stand.

I discuss the legalities, as I understand them, below the fold. As always, ianal.

As I understand it, the Congressional power to hold hearings is based on its lawmaking power. Congress should not be doomed to legislate in ignorance, the courts have held, and this means it must be able to hold hearings. It should be able to get the information it needs, and so it should be able to issue subpoenas. From WATKINS v. UNITED STATES, 354 U.S. 178 (1957) (isn't the web wonderful?):

"We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible.

It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation."

The investigations into the NSA program and the response to Hurricane Katrina are both obviously related to Congress' legislative function. About the NSA: Bush has repeatedly claimed that FISA is out of date, and that it is too cumbersome to be complied with. If that is true, then the law ought to be changed. Congress is trying to figure out whether the administration has broken the law, and, if so, whether and how it might need to be changed. Of course it ought to hold hearings. And of course it needs input from the executive in order to do its job: it's not as though anyone else in this country is likely to be engaged in the sorts of activities that Congress is trying to regulate.

About Katrina: Congress is trying to figure out what went wrong in the response to Katrina, so that it can take steps to ensure that those things don't go wrong again. If, after such a failure of government response, the Congress did nothing, it would be failing in its duty. And of course, in the course of this investigation, it needs to hear from those who were involved in responding to Hurricane Katrina, including officials of the federal government. If it does not, the Congress cannot possibly learn what it should do to avoid a repetition of this tragedy.

Against this Congressional need, the administration seems to be asserting a claim of executive privilege. Here's a nice short history of executive privilege, including fascinating historical nuggets like this (about a request from Aaron Burr that Jefferson produce a letter that he claimed would exonerate him):

"After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter."

The classic executive privilege case is, of course, United States v. Nixon. Here the court was considering whether Nixon had to turn over some tapes made in his office to the special prosecutor investigating Watergate. Nixon had a non-negligible case for executive privilege: the tapes were made in his office, and they were of conversations with people who were advising him. The knowledge that tapes of one's supposedly confidential conversations with the President might be produced in court would undoubtedly have a chilling effect on the advice people gave him. Nonetheless, the Court ruled against Nixon. It held first that executive privilege is not absolute:

"The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. [418 U.S. 683, 707]

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 635 (Jackson, J., concurring).

To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III."

The "other value" in play in US v. Nixon was the ability of courts to render justice, and thus the rule of law. The court weighed this value against the value of confidential information as follows:

"In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair [418 U.S. 683, 712] administration of criminal justice. 19 The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. 20

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality [418 U.S. 683, 713] in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

As best I can tell, there is no good reason for the administration to withhold documents in the case of the Katrina response. On the one hand, the Congress' case is very strong: as noted above, it needs those documents in order to exercise a core legislative function. On the other, the administration's case is very weak. As I read the history, the strongest claims for executive privilege involve cases involving (a) advice given to the President himself, not just any old documents produced by some part of the executive branch, and (b) advice given on matters of national security, in which the need for secrecy, and the President's constitutional powers, are greatest. The documents involved in the response to Katrina meet neither condition. I can't imagine how the President has the right to withhold them, as a matter of law.

Moreover, he's wrong as a matter of morality and policy. It is extremely important to figure out exactly what went wrong with our response to Katrina, so that we don't repeat those mistakes. To insist on executive privilege in a marginal case, at the cost of fixing our disaster response capacities so that when the next catastrophic hurricane or bioterrorist strikes, we do better than we did in New Orleans, is wrong in just about every way I can imagine.

***

The NSA case is slightly trickier, since it does involve confidential programs related to national security. Here I think that two things matter. First, the Court in US v. Nixon paid a lot of attention to the details of the case. Courts are unlikely to have a genuine need for a lot of policy documents on national security, and (with the exception of specialized courts like the FISA court) are unlikely to be set up to ensure complete secrecy. The Congress, by contrast, has various powers related to the conduct of war. It is specifically empowered both to appropriate funds for defense, and to "make Rules for the Government and Regulation of the land and naval Forces". To pass the laws it needs to pass, and to know whether or not to appropriate money for this or any other NSA program, it needs to be informed. Moreover, it does have committees set up to receive, in secret, briefings on intelligence. So its need for the information in question is clearer, and its capacity to receive it without endangering national security is greater.

Moreover, this is, as I said earlier, a case that really does raise profound constitutional issues. The President is asserting the right to interpret the law for himself, and to do so without any review whatsoever. (Branches of government always interpret the law; it's the 'without review' part that's the problem.) He is, moreover, not being appropriately cautious in claiming such a power; he seems to be denying the express will of Congress. This is a serious problem.

And it's a problem that it's hard to see any other means of correcting. People who suspect that their communications might have been intercepted have filed suit, but it's quite possible that those suits might be dismissed on the grounds that they have no actual evidence that they have been harmed. That's the beauty of a secret program: if no one actually knows that their communications have been intercepted, it's quite possible that no one has standing to sue. The administration has decided that it can circumvent the FISA court, so it cannot intervene. It is not obvious that the courts will be able to address this problem, since it's not clear who will have standing to bring a suit. (Here I feel particularly clearly the lack of legal training, though.)

Given the importance of the issues at stake, and the absence of any other obvious recourse, I would think that executive privilege should not win out in this case either, as a matter of law. As a matter of policy, I hope it doesn't: the assertion, by any branch of government, of the ability to act in secret, without oversight or check, would be troubling in its own right. When this assertion is made in order to justify infringements on our civil liberties, it should not stand.

Comments

[CharleyCarp]

The great, and maybe only, real talent of the President is to create situations where the cost of undoing them is so great, no one can afford to back away. He's got the mortgage payment on the table for every hand, and can never fold, no matter how bad the cards. I guess being too big to be allowed to fail is the next best thing to being a success.

Republicans in Congress simply cannot run the risk of exposing the President. They cannot have real hearings, without maybe bringing down the whole party.

[hilzoy]

CharleyCarp: are there legal issues I missed or got wrong?

[calmo]

That bit : As a matter of policy, I hope it doesn't: the assertion, by any branch of government, of the ability to act in secret, without oversight or check, would be troubling in its own right.
sounds like the difference between Democracies and Kingdoms.
So it's time to ask King W (ok, his minion, Gonzales): Is there any action that the President might take that would not qualify as being exempt from the laws of the land? Is there not one cranny in the crevice of the current Law such as it is, (constrained by 'the war on terror'), where the President could possibly commit a crime?

[Katherine]

I think Charley's right. I would be shocked if a single Republic senator broke ranks and voted for supboenas here, hil. The most I am hoping for is that the few Democrats who get what is at stake are able to convey that to other members of the party, and to the press and public.

Remember, any details about NSA operations in these legal memos could presumably be redacted. It's their legal theories, as much as anything else, that they're refusing to disclose.

See Jack Balkin for some thoughts on this:

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

I think it's pretty clear already that this theory was never disavowed by the OLC, but in any case....

It's really amazing: not only is the President constitutionally entitled to authorize felonies to protect national security, but he can also classify the embarrassing memos in which he sets forth this fascinating constitutional theory in the name of national security.

I would guess the early one is written by Yoo. If the torture memo is any guide I would guess it does a much worse job than the current White Paper of at sort of sounding like it's making a respectable legal argument.

[Katherine]

good places to follow this in general:

1) Anonymous Liberal
2) Glenn Greenwald
3) Balkinization--see this response to the DOJ white paper.

[bob mcmanus]

How do I put this? I worry about this less as principle than many, since I have less faith in and respect for the rule of law than many. Without Sirica, and Ervin, and even Nixon himself, Nixon would not have had a problem. We are ruled by men, not laws, and we need to be very careful about who we give power to.

Does anyone think the precedent that was established under Clinton about the testimony of Secret Service agents would be practically applicable to Bush? Roberts and Alito would laugh it away.

When you have very bad men without reverence or integrity in power, the law will not protect or assist you. Whether or not you still try to stay within the law in dealing with the problem is a matter of fastidiousness, courage, and the dangerousness of the tyrants. But once the government or rulers hold the law in contempt, you are in a revolutionary condition, and you need not worry about setting bad precedents. There is always a reboot after the crisis is ended.

[Gary Farber]

Hilzoy, I tend to assume you read the Newsweek piece about Comey, Goldsmith, and Addington, and the fight inside DOJ, but since you note how busy you've been prepping for the start of teaching new classes, so I can't be sure, and so mention it. Besides, naturally I think everyone should read it.

[bob mcmanus]

Gary, there are tens of thousands of Republicans at many levels of government who could have stopped this administration's malfeasance and malevolence dead in its tracks. It really only took two or three people who wouldn't shut up to bring Nixon down.

Even Wilkerson couches his criticisms in ways that protect the President and the party. I have yet to be impressed.

[bob mcmanus]

"Republicans in Congress simply cannot run the risk of exposing the President. They cannot have real hearings, without maybe bringing down the whole party."

Nor can they allow President Hillary or Speaker Pelosi a free hand. I do not expect to see Democratic control of government in my remaining lifetime.

[Gary Farber]

"Gary, there are tens of thousands of Republicans at many levels of government who could have stopped this administration's malfeasance and malevolence dead in its tracks."

I'm not sure what you think you're arguing with, Bob. Something I said?

[Katherine]

Before anyone gets too cheered up by that Newsweek article (which is a bit over the top with hagiography), note that Comey and Goldsmith are gone, & Addington's been promoted.

Comey was Deputy Attorney General. The guy who's acting Deputy AG & will probably soon be confirmed as Deputy AG, Paul McNulty, was the U.S. Attorney in charge of the task force dealing with detainee abuse cases.

The DOJ has had the Department of Defense and "OGA" (i.e. the CIA) each refer 10 cases to it for possible prosecution of a civilian for detainee abuse. These 20 include several deaths: the anonymous Afghan man who froze to death in the Salt Pit, the Mowhoush case, the Manadel al-Jamadi case. There are others as well.

Nineteen of these cases were given to McNulty's task force since it was set up a year and a half ago. They have brought charges in zero. They have dismissed two.

(The remaining case, involving contractor David Passaro, was referred to the Eastern District of North Carolina before the task force was set up--that's the only case where there's been an indictment.)

McNulty's confirmation hearing was today, and the judiciary democrats were going to question him on this. Unfortunately I don't have a transcript--if anyone knows where to find one I'd be much obliged. I did find one press account where they quote him as stating that the arguments for the NSA program are "credible" and "compelling."

I know less about Stephen Bradbury, Goldsmith's replacement at OLC. According to this article he supervised the drafting of the "White Paper."

[Gary Farber]

Actually, I'm not at all sure what the sentence I quoted refers to, either, Bob. Tens of thousands? What and who do you have in mind?

[Gary Farber]

"Before anyone gets too cheered up by that Newsweek article (which is a bit over the top with hagiography), note that Comey and Goldsmith are gone, & Addington's been promoted."

Just for the record, I'd like to note that I, for one, didn't tell anyone to get "cheered up" in the slightest, and I'm quite sure that I included the facts you mention. Just for the record.

[Katherine]

the information about Comey's and Goldsmith's successors is new, no? Unless I'm looking at the wrong post.

[Gary Farber]

I was referring to what I quoted. If I were referring to something else, I'd quote it.

This has been my style for online discussion for 11 years, although you'd only have seen bits of the last two or three or so, and it's entirely reasonable that you'd not have noticed. But now you know.

My default assumption is that President Bush will default towards purging dissent and making appointments on the basis of an ever-increasing toady factor, but I will note that I do think that Rice as SecState is an improvement, not because of specific policy improvements over Powell, but because she has the President's ear, and real power, and Powell was just an outmaneuvered (most of the time) fig leaf with relatively little power compared to Rumsfeld, DoD, Rice, and Hadley.

[Gary Farber]

Of course, naturally I neglect to quote that I was responding to "the information about Comey's and Goldsmith's successors is new, no? Unless I'm looking at the wrong post" when I wrote the above. Because it was above.

Said with part sarcasm at myself and part noting the exception to the rule.

[bob mcmanus]

Kagreo X at Next Hurrah

Doug Johnson at the Weblog

A couple of posts I liked today. Gary is always asking for me to describe the content of my links. Gary, don't bother with them. They are radical.

2-3 middle ranking CIA officials, a few Senate staffers, some veterans returned from Iraq, some DOJ functionaries. IMO, it wasn't the only the specifics of what John Dean said, but that he was willing to destroy his career and go to jail and face the personal hatred of tens of millions of Americans to say them. He inspired and motivated the others. We need a few people like that, and we have yet to see them. Even Clarke and O'Neill were cautious and self-protective. That we don't see people of conscience attempting to destroy this administration, that we don't see them anywhere, shows we are in a revolutionary condition.

Like Charleycarp said, the mortgage is on the table, and only the bad guys are yet willing to go all-in. So they are winning by default.

I am sorry, hilzoy, it was a good post. Even should it get us ten house seats and 3 Senators, it would not really help enough. Isn't anyone else tired of trying to lasso a locomotive, and wanting to go ahead and remove some rails?

[liberal japonicus]

Gary, your post started off with (I only mention it here because I'm sure you realize what you wrote, so please don't think that I am accusing you of not remembering what you wrote)
"THE GOOD GUYS AT THE DEPARTMENT OF JUSTICE. No, really. Honest."

Given that there is no verb to place this as past tense, a plausible reading might be someone getting cheered up, which may be what Katherine was addressing.

[Gary Farber]

"2-3 middle ranking CIA officials, a few Senate staffers, some veterans returned from Iraq, some DOJ functionaries."

A verb, Bob. We could use a verb. Was this in response to my query about "Tens of thousands? What and who do you have in mind?" or something utterly unrelated?

[Gary Farber]

"Gary, don't bother with them. They are radical."

Too late. Good luck waiting for the revolution. Been there, done that.

[Gary Farber]

"Given that there is no verb to place this as past tense, a plausible reading might be someone getting cheered up...."

If you want to actually not read the post, and don't bother noticing that Comey and Goldsmith are gone, I guess so. I'm not going to feel that's some sort of error on my part, I'm afraid.

[liberal japonicus]

I'm not going to feel that's some sort of error on my part, I'm afraid.

Of course not, and I certainly have no reason to think that you would. Since it was Katherine, to whom you credit with tipping you off to the article (which suggests to me that she read the whole thing), I think that she is not in error is suggesting that the title and first line may give a less careful reader a different impression, so I'm not accusing anyone of any error. I was merely pointing out that your lede seemed to elide that fact because you seemed to be unaware of it.

*follows in rilkefan's footsteps*

[John Lopresti]

For hilzoy
three links
January 19, 2006, Stanford prof former member of CPA, 4th amendment suit
particularly nice chronology with ancillary legal document links, 2000 thru January 24>
witch hunt for leaker named; January 27
Hope these help.
J

[bob mcmanus]

A Post about hitting the Streets

And Tristero at Digbys says been there, done that ...and gets his...hat...handed to him by old farts like Meteorblades. The long comment section is critical here.

The revolution happened, Gary, you must have missed it. We have an outlaw government, and are in a lawless condition. Kerensky and Weimar didn't recognize it and got rolled.

For Whom the Bell Blogs

Andrew Sahl over at Kleiman's says health care is a more important issue than wiretaps both practically in terms of politics and, well, morally. Drums links to this post and again the comment section at Drum's is useful. God knows Hilzoy has done her share on healthcare.

Newberry has broken with Kos, as far as I tell over a question of organizing vs venting.

The left blogosphere is in a lot of pain right now.

(Much long commentary deleted)

[blogbudsman]

I love this blog - listening to you folks argue with yourselves, and Gary argue with himself. I was struck by hilzoy asserting that the Executive Branch conferred with the Legislative Branch under certain conditions. Really? I suppose the Hard Eight was as deep as they thought they could go and not have the confidence broken. Did the Executive Branch really 'circumvent' the Judicial Branch or take a fairly well worn path given the dire nature of the circumstances. And are they 'defying' Congress? Separation of powers seems to be important when it meets the flavor of one argument over another. It’s not Katrina that is important, it’s the request that needs to be examined; and it’s sure that it will. And Congress already knows what it can do to avoid such a tragedy in the future. This move seems more aimed at not doing that. It may in fact be a spine issue, but as usual I find the argument misdirected. Each Senator and Representative has constituents in their home state, and that state has a governor and each city has a mayor. Have they effectively directed the millions and millions properly? Are they ready? And the NSA case is slightly trickier. Congress may in fact have no spine, but the question is why? What are they afraid of - their own constituents or their own thoughts of what is right or wrong? Executive Privilege, Civil Liberties, Legislators, the relative safety of a great Democratic nation, our continued existence? If you don't mind, I'd like to hang out a bit and see how it all comes out.

[liberal japonicus]

bbm,
Just curious, but you mentioned Katrina and NSA, but didn't mention the withholding of Abramoff related documents. (which hilzoy didn't focus on either, but is in the last line of the first excerpt). Do you think they fall in category one (Katrina, where I think you are saying that the request may not be a worthwhile one) or category two (NSA, where it should perhaps be asked, but is not because of conflicts that the lawmakers have)? If I am misstating this, please correct me. Thanks.

[Ugh]

Anonymous Liberal in a comment at Balkinization (and perhaps at his site) hypothesizes that the classified legal opinion(s) *shudder* does not contain the AUMF justification and therefore releasing the opinion would show the argument to be the post-hac BS that it is, and that their real argument is POTUS as King when he acts as commander in chief, declaration of war/AUMF or not.

[john miller]

bbm, although this has rarely been discussed, the adminstration broke the law when they "conferred" with Congress. By law, they had to present their plans to the entire Inteligence Committees and did not do so.

Additionally, I question the use of the word "conferred". That implies some give and take, of which there apparently was none.

What is this "well worn path" you speak of?

I won't argue with you about the phrase "dire circumstances" as that is a very subjective term, and we would never convince each other of what is meant by that.

If you feel the executive branch can arbitrarily withhold important information from Congress whenever it chooses, information that does not impact national security, I assume you would then agree with the proposition that Congress can decide to pass a law with the proviso that a President cannot veto it.

I personally don't agree with the latter, because that is part of the checks and balance system involved in the separation of powers.

[blogbudsman]

liberal japonicus - my eyes may have glazed over the Abramoff reference. Isn't he facing some sort of trial over some specific fraud charges from cheating those he represented? Sounds like a real cootie. I suppose if rubbing shoulders in Washington can infect you, you'll show up at the clinic eventually. Does that mean the media and opposition party needs to cream their jeans trying to assign guilt by association? I suppose. And I'm not so put off by the request for information as I support the resistance to provide it, as long as it falls within the proper separation of powers and that the request itself passes the smell test.

[blogbudsman]

Interesting john miller, does that mean that the members of Congress that were 'conferred' with also broke the law?

[blogbudsman]

And the snarky side of me would be curious how they would actually get the entire committee together. Has that actually been done?

[john miller]

Obviously it does not mean the members of Congress broke the law, and I am not sure what form of convoluted logic would be needed to even come up with the question.

[Edward_]

Here's the catch for me.

It really doesn't matter whether you think Bush and Cheney are evil and would use this power against the American people in unscrupulous ways...they're creating a system whereby should the next POTUS be truly evil, we will have absolutely no powers to stop him/her.

[lily]

And "think" is a "terribel" word to misspell.

[lily]

Somehow I got that last post on the wrong thread. (Blushes).

[blogbudsman]

So if Abramoff had his picture taken near the President, that would mean one thing, but if certain members of Congress conspired with the President in an obvious illegal endeavor, that would mean something else. And don't worry Edward, I trust Carter's assurance that there is no evil in the world, just misunderstood freedom fighters. Silly wabbit.

[Jesurgislac]

Blogbudsman: Did the Executive Branch really 'circumvent' the Judicial Branch or take a fairly well worn path given the dire nature of the circumstances.

Are you asserting, then, that since 1973, the Executive Branch of government has routinely ("well worn path") wiretapped phone calls of US citizens without a warrant, and without ever seeking a warrant? Do you have any evidence that this is the case?

[hilzoy]

Let's be more specific than Jes: since FISA was passed, which was in 1978?

[cleek]

if certain members of Congress conspired with the President in an obvious illegal endeavor, that would mean something else

if those 'certain members of Congress' were 'conspiring', then certainly the majority of President's top staff, the DOJ, the NSA and likely some others were 'conspiring' as well.

i'd love to see the GOP try to run with that.

[Anarch]

I'm just impressed that bbm has proffered four posts without a single jot of substance. It's hard to be that content-free; kudos!

*joins LJ in the rilkefan conga line*

[blogbudsman]

jes, yeah, I think they've all done it - maybe with the exception of our current President. When I get home this weekend I'll do some googling.

[Slartibartfast]

I just looked through your last four posts, Anarch, and I think your basis for dart-throwing is rather thin.

Just something to think about. Well, it may be that deciding whether a panda was named after a song or vice versa is substance to you, but bbm might have different notions.

[john miller]

BBM: "maybe with the exception of our current President."

This last statement almost makes me think that bbm is really a liberal playing devil's advocate. After all Bush has already admitted to doing so.

BTW, realize I said "almost".

[Kyle Hasselbacher]

It really doesn't matter whether you think Bush and Cheney are evil and would use this power against the American people in unscrupulous ways...they're creating a system whereby should the next POTUS be truly evil, we will have absolutely no powers to stop him/her.

YES!!

I see this most in coporations or government agencies collecting masses of data. The problem with building databases isn't what the builders will do with it but what the subsequent owners will do with it. I think it's happened a couple times now: (1) corp. builds DB, promising to keep your data private; (2) corp. goes belly up; (3) the DB is sold as an asset to anyone with cash.

The Framers didn't fill the government with checks and balances because they thought they would abuse too much power. It's those knuckleheads that came after them they were worried about.

[Anarch]

I just looked through your last four posts, Anarch, and I think your basis for dart-throwing is rather thin.

And as the subject, content and purpose of those last four posts were precisely the same, this comparison holds up perfectly. Well done, Slarti.

[Slartibartfast]

Well done, Slarti.

Sorry; I didn't realize this was a turf war.

8p

[kenB]

*follows in rilkefan's footsteps*

*joins LJ in the rilkefan conga line*

I confess I'm not a regular reader here anymore -- could someone give a quick explanation of these references? TIA.

[Paul]

I just looked through your last four posts, Anarch, and I think your basis for dart-throwing is rather thin.

How swell is it that ObWi provides it's commenters with regular performance reviews? I like to think that it's just that bit of extra attention that makes this place so special.

[kenB]

Jeez, Slart takes it on the chin for tweaking Anarch for tweaking blogbudsman. Can't you just feel the love?

[rilkefan]

kenB, wovon man nicht reden kann, davon soll man schweigen. No, sorry - it's (I assume) about a dispute I've had with Gary - un point de saint Augustin sur lequel nous ne sommes pas d'accord. No, sorry. I've been arguing with Gary off and on about his arguments with people here - who's misreading who, what's civil, why conversations with him aft gang aglay - a dispute which spilled over to Hating on Charles Bird, in a thread of which I declared my intention to give up the struggle as unproductive for all involved.

[Slartibartfast]

JFTR, I was poking fun at Anarch. If I annoyed Anarch, I didn't intend to.

[kenB]

rilkefan, merci beaucoup, jetzt verstehe Ich. I didn't realize that there's been so much spillover onto HOCB -- seems that one can't fully appreciate the comments here without reading there as well.

[rilkefan]

Seemed obvious to me, Slart.

[Gary Farber]

"Isn't he facing some sort of trial over some specific fraud charges from cheating those he represented?"

No. He's plead guilty to various charges, and is spilling the beans. Bob Ney is still running for re-election. I suspect he's an optimist (and can't let go of his gravy train).

Educate yourself here, as a starting place, if you like.

"jes, yeah, I think they've all done it - maybe with the exception of our current President. When I get home this weekend I'll do some googling."

By all means, do.

"Interesting john miller, does that mean that the members of Congress that were 'conferred' with also broke the law?"

No. And Jane Harman (Democratic senior member of House Intelligence Committee, who was one of the 8) insisted that the entire committee be briefed, as per statute, but was ignored. She protested, and was ignored. She kept her mouth shut, anyway, and didn't leak.

"And the snarky side of me would be curious how they would actually get the entire committee together. Has that actually been done?"

It's the law that they be briefed on all intelligence matters. They routinely meet for briefings. See also the Jay Rockefellar letter.

If anyone wants to read the "hating on Gary" IHCB thread (actually entitled " Some Advice for Charles about Gary," by DaveC), it's here, and about to scroll off the small front page. I'll let my comments there speak to the issue sufficiently, for now.

DaveC also demonstrated that Edgar Allan Poe pwned me here.

[liberal japonicus]

seems that one can't fully appreciate the comments here without reading there as well

Yes!

Well, I mean no, the idea is that HoCB is the rumpusroom, and ObWi gets the facts, ma'am, just the facts.

bbm said
So if Abramoff had his picture taken near the President

Methinks someone is paying a bit more attention to this then they let on.

[bob mcmanus]

Part II of Kagro X on Impeachment ...Next Hurrah

IMO, a must read on issues of Executive Power. Includes the Frost Interview with Nixon in which Nixon said:"If the President does it, it is not illegal." Umm, Nixon meant it, and Nixon was correct.

Nixon: "Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position."
.....
Kagro:"So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is."

[Anarch]

JFTR, I was poking fun at Anarch. If I annoyed Anarch, I didn't intend to.

I tried to poke fun back, but I think I kinda used a sledgehammer instead of needle. Sorry about that (:

[Slartibartfast]

I think rilkefan pwned DaveC on that thread much more than Poe did Gary:

I'm a physicist - of course what I say applies to my universe.

Remind me to never say In your universe, perhaps to a physicist.

[blogbudsman]

Articles http://www.washtimes.com/national/20051222-122610-7772r.htm>here and http://www.washtimes.com/national/20051222-122610-7772r.htm>here and http://www.themoderatevoice.com/posts/1135200457.shtml>here at least indicate why I comfortably declared the path well worn.

[liberal japonicus]

Well, bbm, I'm not going to deal with the WashTimes (nothing personal, just the fact that Moon invests in North Korea leaves a bad taste in my mouth) but the Schmidt column is discussed in this Media matters post

[Gary Farber]

"Articles here and here and here at least indicate why I comfortably declared the path well worn.'

Thanks for the links. You may have had another in mind for the second, and perhaps had a cut&paste error, because your second link is the same as the first.

You might note the concluding quote from Jamie Gorelick in that article.

I'm afraid I'd like to see a fuller transcript and context for the initial Gorelick quote, because based upon other citations in the article which clearly do not apply, I don't trust the writer as a reliable raconteur.

The citation of Griffin Bell in 1978 is irrelevant, for instance, since it was pre-FISA.

On the third article, the Chicago Trib Op-Ed quoted by Joe Gandelman, the citation of the 1972 Keith decision is, again, irrelevant, as it was prior to the FIS Act in 1978, and thus superceded.

And I take it you either disagree with or are ignoring the rest of what Joe Gandelman wrote?

[bolgbudsman]

Well http://www.nationalreview.com/york/york200512211147.asp>here is the here I flubbed. I see your here and raise you a http://www.freerepublic.com/focus/f-news/1559879/posts>here . It's interesting how Jamie Gorelick has figured into recent events. The Lewis and Clark of the well worn trail.

[Gary Farber]

"Well here is the here I flubbed."

Thanks. Of course, what it says is denied by senior Clinton officials (John Podesta, former White House Chief of Staff), and it just repeats the discredited Schmidt article as a source. So that doesn't get you anywhere, I'm afraid.

The Freeper excerpt a) is incomplete; b) more damningly, was already refuted by the Media Matters piece previously cited, which I take it you didn't bother to read, which points out that "FISA was amended in 1995 to encompass physical searches."

So I'm afraid that doesn't help you, either.

You might want to try not typoing your own name/pseud, incidentally, although it is kinda amusing when you do that. No biggie, just an amusing note.

Thanks for at least trying to support your case with links.

[blogbudsman]

See Gary, the thing about typos are that they are unintentional - of course I could go the route of Clinton senior White House officials (CSWHO's) and deny it. And 'discredited' and 'disputed' are always used in interesting ways. Regardless, the links prove I could say what I said, so that gets me everywhere. And it gave you an opportunity to post again. So we both win. Ta!

[CharleyCarp]

I guess the headline is that BBM proves Madison correct. For a great many people, what makes the outsized claims the government is making troubling isn't that they're being made by a particular administration. Thus, it doesn't matter in the least that some prior President claimed that it wasn't illegal if the president authorized it, or that there are certain unemunerated powers -- emanations from penumbras apparently -- resident in the Executive, sitting around like a loaded gun.

One of the founding principles of our government is diffusion of power. The authors expected the Executive to try to aggrandize its role and powers, and tried to create branches that would check it. Their success hasn't been perfect, but has mostly worked out pretty well.

What distinguishes this admin from the prior one isn't that it asserts outsized powers, but that it acts on them. We'll surely live to regret the preemptive war doctrine recently executed, for example. (That is, a war in circumstances where self-defense isn't really called into play, but might be in the future.) The doctrine of special war powers -- not traceable, in my view, to any penumbra -- combined with a perpetual inchoate war is more dangerous now than ever before. Certainly more dangerous in the application, that in a theory espoused by some past lawyer.

OK, it's Neils Jackson logic, I suppose, but I find it pretty interesting that so many Bush supporters cling to dicta and stray lines in a very few prior court decisions about Executive power as if they were the gospel truth: the President has the power to engage in domestic surveillance for national security purposes. But the same folks can look at a dozen holdings about abortion -- direct holdings that the US Constitution precludes state statutes that place an undue burden on abortion -- and say the courts have got it wrong, wrong, wrong.

What I find most interesting about this is that it's plenty clear to me that the Founders wanted to create an Executive that did not have outsized powers, and that they readily agreed to the Bill of Rights -- putting the rights of the individual in an especially privileged place as against the government -- as their great grandchildren enacted the 14th Amendment to protect individuals from the States (the same having recently proven incapable of protecting individuals from the tyrany of the majority). The current external threat is far less than those faced by the Founding generation (and its children), and yet we seem to be willing to go exactly the opposite way, both on creating a Caesar, and in allowing state encroachments on the individual.

[CharleyCarp]

OK, shorter, and put into a vernacular that folks used to the conservative media can understand: it's not about Chimpy H. McHalliburton. It's about bedwetters crying for their mommies.

[ral]

Shorter still: IOKIYAR

[hilzoy]

Note for all: CharleyCarp's recent comment marks the first use of the phrase "Chimpy H. McHalliburton", or anything like it, by a liberal on this site, at least as far back as I can remember. And it was ironic.

[ral]

Google "site:obsidianwings.blogs.com chimpy" gives an interesting 7 hits.

Hilzoy, I hope my use of IOKIYAR isn't damaging ObWi's reputation (or mine :-)

[Katherine]

Specter's making the right noises, though I'll believe subpoenas when I see them.

Pat Roberts has declared FISA unconstitutional without actually explaining why FISA is unconstitutional.

[CharleyCarp]

Maybe I should have spelled out the middle name, to have another first. It's not Herbert.

[Anarch]

Horatio?

[Katherine]

A party line vote about whether to put him under oath? Really now. That's a little more blatant than I expected. Otherwise, while I haven't read through the whole transcript, seems like no there were no big surprises.

Graham asked a few decent questions. He's still dead to me.

Seems like Durbin, Leahy, and Feingold did the best job, as usual. Particularly Russ.
feel...self...getting...sucked...into...yet...another....hopeless...presidential...campaign. Help!

[Gary Farber]

Transcript of Monday's hearing
begins here.

"A party line vote about whether to put him under oath?"

Anyone care to defend why Gonzalez couldn't be sworn under oath like his last appearance before Congress on the topic?

[Slartibartfast]

Pat Roberts has declared FISA unconstitutional without actually explaining why FISA is unconstitutional.

In other news, the Pope is offering his expert skills as a personal injury attorney to...oh, dang, can't keep a straight face.

[Slartibartfast]

The Pope being at least ten times the constitutional scholar that Pat Robertson is...dang, losing that straignt face again.

Maybe we should consult with Sean Hannity? There's a constitutional scholar for you.

[rilkefan]

The Pope blames the French for Nazism, so I'm going to side with Pat here.

By the way, Slart, we know you found the camera that was capturing your expression while you blogged, and you know we know, and we know you know we know, so you can drop the little hints.

[liberal japonicus]

Maybe we should consult with Sean Hannity? There's a constitutional scholar for you.

If he's right, why should anyone disagree with him? ;^)

meta-snark tag goes here

[Pooh]

Without citation, I think that swearing in of the AG would have been largely symbolic, as lying in a hearing is already a crime for an executive officer. It's now just one felony, not two.(?) Plus, it was suggested that this way he won't get disbarred if he's convicted.

I have half a crazy theory as to why, FWIW. At least some of the GOP members of the Committee are quite ticked, because W is playing in their sandbox. But they don't want to overtly cross party lines, having seen what happens to apostates. So they'll make a series of...er, tactical errors which will turn public sentiment against "the program". They get the sandbox back without getting their hands dirty.

Half the theory, but it's all the way crazy. YMMV, greatly.

[Slartibartfast]

If he's right, why should anyone disagree with him?

It's the probability of that happening, as well as the low, low probability that he wouldn't say anything horribly wrong. Else we could just consult with Ashlee Simpson on these matters.

[liberal japonicus]

Well, when I noted that about Hannity, it was implied that I suffered from "dysfunctional thinking", so I'm just pleased you've come around to my way of thinking. :^p

[Slartibartfast]

so I'm just pleased you've come around to my way of thinking.

I'll let you know if that ever happens. Promise me, though, if I do: bludgeon me with something heavy until I stop?

[liberal japonicus]

Even if I'm right? I would never accuse you of dysfunctional thinking!

Of course, if a site like this is on the front page courtesy of Charles, well, I guess anything is possible...

[Slartibartfast]

Even if I'm right?

Facts not in evidence, but I guess I'd have to retract. Hopefully before the bludgeoning commenced.

[Katherine]

Not Pat Robertson. Pat Roberts, Senator of Kansas, chair of the Senate intelligence committee. Who is not much less of a jerk and does more harm, IMO.

[liberal japonicus]

This is what happens when I go for snark, I miss things like that. I hope the same is true for Slart...