Cry, The Beloved Country

by hilzoy

For several days now, I've been meaning to write about the Judiciary Committee's hearings on the NSA domestic surveillance program. I read the transcripts. A lot of it was incredibly dull -- much duller than I had expected -- since Gonzales seemed to stick remorselessly to a few single rules:

(a) When asked about the legal justification for the actual NSA program, repeat things the administration has already said.

(b) When asked any question about the legal justification for anything other than the actual NSA program, refuse to answer on the grounds that you have not done the requisite constitutional analysis. Do this even if the question involves a straightforward application of principles you have already enunciated.

(c) When asked any factual question, do not answer, on the grounds that it is an "operational detail", regardless of whether or not this description is even remotely plausible.

On the whole, that made for some pretty dull testimony. However, there were some interesting and alarming bits sprinkled here and there, and I wanted to write both about them and about the administration's truly alarming view of presidential power. Fortunately, Glenn Greenwald has written a great post about the latter topic. Below the fold, I'll copy some of it (though you should read the whole thing), and then use a few bits of Gonzales' testimony to illustrate.

Greenwald is laying out points that he thinks people should make when explaining the NSA program. His first is this:

"(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him."

Greenwald begins by saying that he thinks the issue is best described in this way, rather than as an issue about the rule of law. If we make it about the rule of law, the administration will be able to trot out its legal justifications, everyone will get confused, and the whole thing will just seem like an arcane legal disagreement. Far better, he says, to explain clearly what their legal theory is, and why it is genuinely radical and frightening. He then does exactly that.

"The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.

Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:

"In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force."

Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.

The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.

Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.

In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.

And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.

If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?

Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President."

Sorry for the extended quote: it was too good to cut. The rest is just as good. Read it all.

***

Greenwald said a lot of what I wanted to say about the radical nature of the administration's argument. I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.

I feel the same way about the NSA story. To me, this has nothing whatsoever to do with whether or not we want to know what al Qaeda members are saying to one another. Of course we do, and I can't imagine that the FISA court would be unwilling to issue a warrant in any such case. Nor does it have anything to do with my concern for the national defense: I can't see how getting warrants would have harmed us in any way, especially since it's possible to apply for them 72 hours after beginning surveillance. (By contrast, not getting warrants is putting cases against terrorists in jeopardy.) It's about whether or not the President has the right to order surveillance of US citizens without getting a warrant, without any sort of judicial oversight, and with only the barest gesture at informing Congress. (Informing eight members of Congress who are bound to complete secrecy, and who therefore have no way of making any of their concerns known to anyone, scarcely counts as allowing for Congressional oversight.)

Moreover, as Greenwald points out, it's about more than that: the administration's position allows for the use of any "war powers" against US citizens, at any time during the 'war on terror', which will probably not end in my lifetime. As Greenwald notes, "war powers" covers a lot: "they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing." He adds that this is not hypothetical, since the administration has actually used those powers, both in the NSA program and against Jose Padilla.

If these two examples don't do it for you, though, just ask yourself this: is there any reason to think that President Bush has not invoked what he takes to be his authority to use war powers against US citizens in any other way? Has he authorized a program to open citizens' mail, search their homes, install cameras and microphones in their living rooms and bedrooms, imprison them without notifying anyone, torture them, or kill them? Espionage is an "essential incident of war": has he decided to plant spies and agents provocateurs in Muslim seminaries and mosques, or for that matter in anti-war groups or labor unions? Has he decided that, since propaganda is an "essential incident of war", he can run disinformation programs within the United States, or subvert our democratic institutions? If he had done any of these things, how on earth would we know?

Well, we might try asking Alberto Gonzales. Luckily for us, this idea occurred to several Senators on the Judiciary Committee. Here are his answers (note: in reading the first passage, in which Gonzales claims that the President has not authorized anything that violates the law, bear in mind that Gonzales claims, in answers to questions by Durbin and Feingold, that when the President authorizes the use of any 'incident of war', even one that is prohibited by law, he does not violate that law, since the AUMF and the Constitution give him authority to authorize such actions legally):

"FEINSTEIN: Senator Kennedy asked you about first-class mail, has it been opened, and you declined answering.

Let me ask this way: Has any other secret order or directive been issued by the president or any other senior administration official which authorizes conduct which would otherwise be prohibited by law? Yes or no will do.

GONZALES: Senator, the president has not authorized any conduct that I'm aware of that is in contravention of law.

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than NSA surveillance?

GONZALES: Again, Senator, I'm not sure how to answer that question.

The president has exercised his authority to authorize this very targeted surveillance of international communication of the enemy. So I'm sorry, your question is?

FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?

GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized. I'm here to...

FEINSTEIN: OK. That's fine.

GONZALES: OK.

FEINSTEIN: That's fine. I just want to ask some others. If you don't want to answer them, don't answer them.

GONZALES: Yes, ma'am.

FEINSTEIN: Can the president suspend the application of the Posse Comitatus Act legally?

GONZALES: Well, of course, Senator, that is not what is at issue here.

FEINSTEIN: I understand that.

GONZALES: This is not about law enforcement, it's about foreign intelligence.

FEINSTEIN: I'm asking a question. You choose not to answer it?

GONZALES: Yes, ma'am.

FEINSTEIN: OK.

Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"?

FEINSTEIN: In other words, can he engage in otherwise illegal propaganda?

GONZALES: Senator, let me respond to -- this will probably be my response to all your questions with these kind of hypotheticals.

And the question as to whether or not -- can Congress pass a statute that is in tension with a president's constitutional authority. Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible. I think that, again...

FEINSTEIN: OK, that's fine. I don't want to argue with you." (cite)

And again:

"LEAHY: (...) Well, if the president has that authority, does he also have the authority to wiretap Americans' domestic calls and e-mails under this authority if he feels it involves Al Qaida activity?

I'm talking about within this country, under this authority you have talked about. Does he have the power under your authority to wiretap Americans within the United States if they're involved in Al Qaida activity?

GONZALES: Sir, I've been asked this question several times.

LEAHY: I know. And you've had somewhat of a vague answer, so I'm asking again.

GONZALES: And I've said that that presents a different legal question, a possibly tough constitutional question. And I am not comfortable, just off the cuff, talking about whether or not such activity would, in fact, be constitutional.

GONZALES: I will say that that is not what we are talking about here. That is not...

LEAHY: Are you doing that?

GONZALES: ... what the president has authorized.

LEAHY: Are you doing that?

GONZALES: I can't give you assurances. That is not what the president has authorized for this program.

LEAHY: Are you doing that? Are you doing that?

GONZALES: Senator, you're asking me again about operations, what are we doing.

LEAHY: Thank you."

And again:

"SCHUMER: (...) Now, here's the next question I have: Has the government done this? Has the government searched someone's home, an American citizen, or office, without a warrant since 9/11, let's say?

GONZALES: To my knowledge, that has not happened under the terrorist surveillance program, and I'm not going to go beyond that.

SCHUMER: I don't know what that -- what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different.

So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.

GONZALES: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator.

SCHUMER: I'm not asking you about any operation. I'm not asking you how many times. I'm not asking you where...

GONZALES: You asked me has that been done.

SCHUMER: Yes.

GONZALES: Have we done something?

SCHUMER: Yes.

GONZALES: That is an operational question, in terms of how we're using capabilities.

SCHUMER: So you won't answer whether it is allowed and you won't answer whether it's been done.

I mean, isn't part of your -- in all due respect, as somebody who genuinely likes you, but isn't this part of your job, to answer a question like this?

GONZALES: Of course it is, Senator.

SCHUMER: But you're not answering it.

GONZALES: Well, I'm not saying that I will not answer the question.

SCHUMER: Oh.

GONZALES: I'm just not prepared to give you an answer at this time.

SCHUMER: OK. All right. Well, I'll accept.

And I have another one, and we can go through the same thing.

How about wiretaps? Under the legal theory, can the government, without ever going to a judge, wiretap purely domestic phone calls?

GONZALES: Again, Senator, give me the opportunity to think about that. But, of course, that is not what this program is...

SCHUMER: It's not. I understand. I'm asking because, under the AUMF theory, you were allowed to do it for these wiretaps. I just want to know what's going on now.

Let me just -- has the government done this? You can get back to me in writing.

GONZALES: Thank you, Senator.

SCHUMER: OK. And one other. Same issue. Placed a listening device -- has the government, without every going to a judge, placed a listening device inside an American home to listen to the conversations that go on there?

Same answer.

GONZALES: Same answer, Senator.

SCHUMER: OK.

But now I have another one. And let's see if you give the same answer here.

GONZALES: All right.

SCHUMER: And that is: Under the legal theory, can the government, without going to a judge -- this is legal theory; I'm not asking you whether they do this -- monitor private calls of its political enemies, people not associated with terrorism but people who they don't like politically?

GONZALES: We're not going to do that. That's not going to happen.

SCHUMER: OK."

As I read it, Gonzales just refuses to answer the question whether or not the President has authorized any other program that would be illegal were it not for the AUMF and his Article II powers. That is: Gonzales is not saying whether or not the President has decided to do things that would normally be illegal, on the grounds that he has the right to override laws when he decides that the "war on terror" requires it.

Think about that. Think about the range of things that the President might have decided to do on those grounds. Ask yourselves how, exactly, anyone would ever find out about these programs, or how any abuses they led to might be discovered and corrected.

Then ask yourself whether this is the country you always thought you lived in. As far as I'm concerned, the answer is: No. Obviously, no. And I want my country back.

Comments

[bob mcmanus]

Good post. But I think the country you loved is gone forever. A generation from now a new one may become possible, but I don't know what it will look like. My guess is that the Union as a geographic or political consensus, even in pretense, is dead.

"Worst President Ever" doesn't begin to estimate him. Bush, with a lot of help. has killed America.

[Donna Dallas]

A commenter at Glenn's blog concisely summed up exactly what it is we are facing if this doctrine is not vehemently resisted:

Under the Administration's radical legal theory, the only thing preventing the imposition of full-scale marshall [sic] law here in the United States (for as long as al Qaeda exists) is the discretion of the President.

It's as simple as that. According to the administration, the President alone decides when the "war" is over. Since the use of "terror" as a tactic is likely to continue indefinitely, the President's power to override the law of the land will also continue indefinitely. Bush really will destroy the republic, if we let him.

[cleek]

time to invoke Teresa Nielsen-Hayden:

I deeply resent the way this administration makes me feel like a nutbar conspiracy theorist.

[Dantheman]

Reading between the lines, this is not the only program. For example:

"FEINSTEIN: Has the president ever invoked this authority with respect to any activity other than the program we're discussing, the NSA surveillance program?

GONZALES: Senator, I am not comfortable going down the road of saying yes or no as to what the president has or has not authorized."

"LEAHY: Are you doing that?

GONZALES: I can't give you assurances. That is not what the president has authorized for this program.

LEAHY: Are you doing that? Are you doing that?

GONZALES: Senator, you're asking me again about operations, what are we doing."

Note the categorial denial "for this program", and the refusal to answer whether they are doing it at all.

"SCHUMER: I don't know what that -- what does that mean, under the terrorist surveillance program? The terrorist surveillance program is about wiretaps. This is about searching someone's home. It's different.

So it wouldn't be done under the surveillance program. I'm asking you if it has been done, period.

GONZALES: But now you're asking me questions about operations or possible operations, and I'm not going to get into that, Senator."

This administration's illegality is like an iceberg. We're only seeing a very small part of it.

[blogbudsman]

As you might well expect, I read the same offering and get a totally different slant. And I don't feel alone here in the Heartland with my thoughts. This appears to be nothing but a fishing expedition by folks who have notoriously done little else. I heard a Democratic operative talk last night about fellow Democrats yanking defeat from the jaws of victory. Feinstein, Leahy and Shumer have become characatures in their attempt to create the same. I know I shouldn't hit and run. I'll hook back up tonight and spar if you don't object too strongly. And cleek, one of my favorite lines in 'Married With Children' is when Al is asked by Peggy if the dress she was married makes her look fat. He responds "It's not the dress that makes you look fat, its the fat that makes you look fat."

[CharleyCarp]

I got this by email today:

There is a "help wanted" posting at USAJOBS, the official job site of the U.S. government:

Assistant civil liberties protection officer: "The Civil Liberties Protection Officer assists the Office of the Director of National Intelligence (ODNI) in ensuring that the protection of civil liberties and privacy is appropriately incorporated in the policies and procedures developed for and implemented by the ODNI and the elements of the intelligence community (IC) within the National Intelligence Program, and in performing other statutory and assigned duties."

Among the assistant's duties: "Develop or recommend changes to policies and procedures to protect privacy and civil liberties ... oversee compliance by the ODNI with legal requirements relating to civil liberties and privacy ... ensure reporting and related requirements are met relating to civil liberties and privacy ... review and assess complaints of possible abuses of civil liberties and privacy in the administration of ODNI programs and operations, and as appropriate, investigate any such complaint or information ... ensure that the use of technologies sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information ... conduct communication and outreach initiatives on behalf of the ODNI on civil liberties and privacy issues ... [and] congressional relations and public affairs coordination with media outlets and civil liberties and privacy advocacy groups."

Applications are due by Feb. 28.

I nominate mcmanus. C'mon bob, it's not just a job, it's an adventure . . .

[cleek]

This appears to be nothing but a fishing expedition by folks who have notoriously done little else.

maybe. but at least it's a legal and publically-judged fishing expedition, and one that doesn't require siccing the NSA on American citizens.

[socratic_me]

This appears to be nothing but a fishing expedition by folks who have notoriously done little else.

Given that they are fishing for illegal activities and a better understanding of the practical and theoretical scope of the powers the government is claiming, I cannot see that as a bad thing. If there is nothing to catch, then making them look like idiots should be easy. All you have to do is clarify your abstract position and then point out how their questions about details all amount to "Are you violating your position?" before answering "no". There shouldn't be a need to "check and see". The answer, on any of those questions, should be a simple and easy "no".

The tendency to apply the phrase "fishing expedition" to any susbtantive inquiry into the policy of our government serves only to undermine the questions without actually addressing their content.

In the end, I drop back to an old saw I picked up through my days as a Philosophy undergraduate. It doesn't matter how big a creep you think someone is or what you think their reasons for making an argument are, the relelvant principles to your analysis are merely the words they say. Whatever reasons these senators may have, and we can all take our best guess at what those are, my relevant concern is what they asked and how it was answered. Like hilzoy, I cannot see a reading of Gonzalez's words that isn't quite distressing.

[togolosh]

If Clinton had espoused this theory the wingnuts would have gone ballistic. Sooner or later there will be a president who realizes that the major domestic terrorism threat is anti-abortion extremists and the black helicopter crowd. I hope that he or she does not use these nutty legal theories to go after them, but I also look forward to witnessing the conniptions of the far right when the possibility is raised.

[Jay C]

So, blogbudsman, what exactly IS your beef about this "fishing expedition"? Is it that you believe that there are no legal/Constitutional limits that have applied, do apply, or should apply to the exercise of Presidential power(s)? Or that the Bush Adminstration's claims of unfettered and unreviewable Executive authority are either necessary or justified, or both? Just now? Or in general?
Or is it more personality-driven? Do you just have such faith in George W. Bush/the Republican Party that you are willing to overlook any instance of Presidential overreach or abuse-of-power as long as the incumbent is 1) A Republican and/or 2) can blather "protecting you from terrorists" as an excuse?

[john miller]

Okay, let me preface this comment by saying that I am an expert on almost nothing, and definitely not anything in the legal field.

Also, I am going to bring up something that is almost never mentioned, because it is considered by many to be almost heretical.

Everything I am hearing from Gonzales and this adminstration has to deal with the inherent "war powers" of the President.

My question is this. Are we legally and technically at war.

Bush has proclaimed a "war on terror". In the past there have been wars on poverty, drugs, etc.

Yet, there was to the best of my knowledge no official declaration of war in any of these cases. And I don't read the AUMF as a declaration of war.

If the administration is going to use what I think is rather convoluted parsing of the law, then let's take it the rest of the way.

Don't get me wrong. I am firmly in support of effective action, military or otherwise to deal with terrorist organizations that present a threat to this country in keeping with our laws and rights.

IMHO, the President has been anything but effective.

And to echo something already said by others far more versed in these matters than I, these powers can be taken not just by this President but by any future President. And we all know the maxim about absolute power.

[Ugh]

john miller -

I think they would argue that when the President acts as Commander-in-Chief, there is no constraint on his power (other than perhaps prohibitions in the Constitution itself), declaration of war or not.

[Ugh]

Though I guess that was not your question.

[john miller]

Ugh

Actually, you are probably right, although they have talked mostly about war powers.

May not have been the primary question, but if the answer to my question is that by strictly technical definition we are not at war, then he still has the CIC powers would probably be their response.

And that is even scarier.

[cleek]

And that is even scarier

yup.

it's truly amazing how short-sighted Bush's partisan supporters are being - this 'authority' Bush is claiming won't go away when a Democrat is elected president.

are they simply counting on having a GOP Congress to check a Dem president from dipping into this deep and dark well of power ?

[Anarch]

I think they would argue that when the President acts as Commander-in-Chief, there is no constraint on his power (other than perhaps prohibitions in the Constitution itself), declaration of war or not.

I believe one of the legal cabal -- Yoo, if memory serves, though it might have been Alito? -- has explicitly said that the sole determiner of when the nation is at war is the discretion of the President, Congress' power to declare war merely being the power to notify other countries of the President's decision.

[socratic_me]

You are right JM, we aren't. In fact, one of the reasons Kerry got accused of flip flopping is that he was very clear before voting for the AUMF that it wasn't a declaration of war and should not be read as much, but was rather a vote of confidence on the Pres. Then after, he maintained that the Pres had abused this resolutions intent. For a comparison, the text of the AUMF can be found http://www.whitehouse.gov/news/releases/2002/10/20021002-2.html>here. The text of a H. J. RES. 63, a resolution to declare war on Iraq, from January of 1991, which died in committee, is http://thomas.loc.gov/cgi-bin/query/z?c102:H.J.RES.63:>here.

[blogbudsman]

Jay C - 1) Not necessarily, the party that provides the best leadership will attract my attention 2)The definition of 'blather' is to talk foolishly at length, so given how you've loaded the question, you've indicated to me you feel there was never, or is now no terrorist threat. 'Tis pretty easy to see where we differ. I trust our negotiations are pretty much at a stalemate.

[CaseyL]

So, the President gets to decide when we're at war, and the President has unlimited power while we're at war, and the President also gets to decide when we're not at war anymore.

And the GOP has no problem with this, right?

Oh, silly me: the GOP has no problem with this as long as it's the GOP who gets the power.

[Ugh]

Speaking of Padilla, anyone know if SCOTUS still has his appeal pending before them? I know they allowed him to be transferred but wasn't sure if they denied cert.

[blogbudsman]

socrate me - "If there is nothing to catch, then making them look like idiots should be easy." You and I could enjoy a discussion over a few beers. So what your saying is kind of like the Pelosi strategy - hold your palm on their foreheads and let them flail away while the voters shake their heads in disbelief. Fortunately for Gonzales is that his questioners prefer to do the talking. And the more they talk the more they look like idiots. Its early in the chess game.

[john miller]

BBM: I don't see where Jay C said there was no terrorist threat. He was talking about how the current administration "blathers" about the threat to justify everything it does.

Recognizing there are terrorists out there who want to harm us and acting like they are the biggest threat we have ever faced are two entirely different things.

[blogbudsman]

cleek - can't argue with your response. I really don't disagree with the process - I just don't agree with hilzoy's woe-is-us conclusion.

[ral]

blogbudsman, what is the reason for your optimism? I am by nature pretty optimistic but I have also read too many "it can't happen here" stories (real and fictional).

[blogbudsman]

Well john miller - is there a threat or not? Roses are red, violets are blue, some poems rhyme, some don't. Your statement is false, the current administration does blather about the terrorist threat to justify everything it does. It blathers about the terrorist threat to defend us against the terrorist threat.

[blogbudsman]

ral, I'm not entirely sure that I'm that optimistic, I just don't feel paranoid about the intentions of this administration regarding this issue. I want to feel that they are doing everything they can to protect me and mine against something I'm entirely powerless to. You have to trust something, sometime.

[Robert]

blogbudsman,

I was hoping they'd protect me and mine against something I'm entirely powerless to, as well.

But they failed to protect me against corporate America. Strike one!

And they failed to protect me and mine from a rainstorm (Katrina). Strike two!

Why on earth would I believe they can protect me from terrorism.

Mushroom cloud? I'm not going to sit around and wait for them to swing and miss at strike three.

[Jay C]

Blogbudsman:
Maybe we have a misunderstanding as to the content of my post of 10:27, but please take my word for it when I say that in NO way did I mean to posit that

"there was never, or is now no terrorist threat."

as this is a position I most certainly don't hold to. To the contrary, I believe that there always has been, is, and always will be some sort of "terrorist threat" to this country and its interests, which needs to be countered to the best of our abilities.
I suppose, though that we do differ in opinion as about the best way to counter these "threats" being to grant unchecked power to the President (whoever he or she is or may be); especially the present Adminstrations' claimed authority to ignore the law whenever they feel like it.

[john miller]

BBM, at least we agree this adminsitration blathers. And since when does blathering about something actually protect us from that thing?

You may feel that this adminsitration has actually done something about protecting us from the hordes of terrorists out there that they talk about. That is your right.

Personally, I think they have done a really poor job of it.

I never said there was no threat. However, terrorists could never take down this country, which is what this administarion wants people to believe, IMHO.

And the fact is, there will probably never be a point in time in which no terrorists exist on the face of this world. Therefore, if that criterion is used to define winning, then we will never fully win, therefore the powers our President claims will never go away.

Is that the type of country in which you want to live?

[blogbudsman]

Robert, that's the point, you can protect yourself against corporate America (whatever that means) and mother nature (up to the point where humans are capable). That's what I expect from local and state government. And if I'm afraid of anything, it would be that you truly believe what you just said. Please don't vote.

[socratic_me]

blogbudsman-

So wait. They ask questions to tease out the extent of the President's power, Gonzalez refuses to answer yeah or neah to any of their questions, and they look bad? I don't understand.

If they were truly foolish, the way to point that out is to say that the accusations are ridiculous and the answer is "no". By acoiding the question over and over and over again, one gives people plenty of reason to start to hear "yes".

ALso, I want to feel that they are doing everything they can to protect me and mine against something I'm entirely powerless to as well. I want them to protect me against the excesses of an unchecked executive power, the sort of thing the country was founded on. I consider the excesses in this regard far more likely to directly affect me than terrorist attacks.

[blogbudsman]

Jay C, OK, I'll follow along side you a bit. I just don't believe what I think I know what the President has done to this point is 'unchecked' power. And no one has claimed to ignor the law whenever they feel like it. It appears our distance is separated mostly by rhetoric.

[stickler]

Blogbudsman:

You have to trust something, sometime.

And you choose George W. Bush? Given all the evidence that has accumulated since 2001?

Please contact me about an exciting opportunity in investments! I have both bridges and swampland -- ah, view property -- to sell you.

[blogbudsman]

john miller - I don't totally disagree with your arguement. I just don't think the hypothetical you set up is reasonable. I know its a valid argument, I just don't give it the legs you do. Although us humans do seem to have trouble getting along. Anyway you may have more faith in our national resolve than I do. I thinking there are those out there that feel if they can wound us enough times in the right places, our house of cards just might fall. I share your hope that they are wrong. Maybe one more - the regulars here get nervous after so many stream of consciousness posts without links.

[Dantheman]

"And no one has claimed to ignor the law whenever they feel like it."

Not in those words, but this Administration has claimed the right to ignore statutory law whenever they feels it conflicts with an intentionally undefined concept of wartime executive power based on a laughably silly reading of the Constitution.

[blogbudsman]

socrate me - its not necessarily the process, or even the questioning - its who the Democrats have chosen or allowed to do it. I've lost all respect for them. Bring in http://bioguide.congress.gov/scripts/biodisplay.pl?index=E000211>'Senator Sam' Ervin, or hell, even Wilford Brimley.

[Gary Farber]

There is a "help wanted" posting at USAJOBS, the official job site of the U.S. government:

Assistant civil liberties protection officer....

There have been occasional articles since the inception of the ODNI office noting that the slot for Civil Liberties Protection Officer long went unfilled (it's now filled by Alexander W. Joel, as of Pearl Harbor Day; there's not a huge amount of information available on him).

Don't miss the so-cute! graphic design for the DNI office link, by the way.

I wound up mutating this comment into a blog post.

[Anarch]

It's amazing how disingenuous accusations of "you don't believe there's a terrorist threat" are invariably met by defensive backpedalling instead of some variant on "sit and swivel". Why on earth do we grant such vacuous calumny any legitimacy whatsoever?

[john miller]

Anarch, actually I was sitting in my chair at work and swiveling at the time. But you are correct, such comments are probably better off being totally ignored. Worked for Kerry.

[socratic_me]

blogbudsman-

its not necessarily the process, or even the questioning - its who the Democrats have chosen or allowed to do it.

This just leads me back to one of my original points, which was that the inability to separate the argument from the person presenting it is a flaw in the observer, not in the argument.

I had understood you to mean that the questioning was innappropriate when you called it a fishing expedition. Now I realize you just meant "I don't like those Dems." I can understand the sentiment. There are plenty of politicans I am not particularly fond of, our current President for instance. However, my personal distaste should not color my evaluations of his arguments (which are bad enough by themselves). That, as the right so often points out, would be "Bush Hating". Just as it would be innappropriate for me to try and pass Bush-Hating as an argument, it is likewise innappropriate to pass off Democrat-Hating as an argument.

[Robert]

blogbudsman,

Let me clarify. I'm one person. An American.
How the hell am I supposed to protect myself from Corporate America?
You do know our system is set-up so that those with money have the power, right.

Also, no need to restate that you're afraid.
Your boy and his cronies totally appreciate that you're pissing yourself scared of the bogeyman (in this case terrorists). That's how the powerful retain power. (See, I'm not as dumb as you think).

They want you to be afraid of terrorists. Then you don't question the fact that you're ceding your civil rights.

It's part of the all-consuming shell game they've got you in.
Example: The homeless and welfare state are where your tax dollars are wasted. C'mon, you KNOW that.
This way you forget about the $8 Billion lost in Iraq.

BTW: Boo!!

[Jeff Eaton]

are they simply counting on having a GOP Congress to check a Dem president from dipping into this deep and dark well of power?

This is a trick question, right? You assume they consider the possibility of a Democrat as president.

Even if one were elected, the minute he did anything the GOP found objectionable, they'd spin it as an 'abuse of executive privs.' They'd have nothing against it in principle, you see, but they'd ravage the hypothetical democratic president as a huckster and a hypocrite for years. Win-win.

[Gary Farber]

Among relevant posts of mine from the past couple of days: linked and commented here, along with links and quotes from other related stories.

See also here for related post, and here, and here, and here, and as interested. And here.

[CaseyL]

john miller - If I understand anarch's comment correctly, then believe me, he's not suggesting we respond to accusations of "you don't believe there's a terrorist threat" by ignoring them.

"Sit and swivel" means "sit on it and swivel."

In other words, refuse to play their fearmongering game at all:

"No, actually, I don't live my days and nights in loose-stool fear of terrorists.

"No, actually, I am not terribly afraid of terrorists or terrorism at all.

"No, actually, I don't think terrorism is a huge threat to this country.

"No, actually, I don't think granting unlimited powers to a President, along with the authority to decide when he gives those powers up, is making the country any safer.

"But, hey, I do get it that you're good with all that. Seems an awful way to live, bein' sh*t scared all the time, but maybe that's just me."
......

Which I quite like as a response, though it might need to be refined some as a political talking point :)

[Gary Farber]

BBM: "This appears to be nothing but a fishing expedition by folks who have notoriously done little else."

Odd thing to say about Senator Lindsay Graham and Congresswoman Heather Wilson, and Senator Arlen Specter, and so many other Republicans, at the least. Didn't you at least support Graham's prosecution of the impeachment of that scoundrel Clinton?

[john miller]

CaseyL

I like it, I like it. No further editing needed.

[ThirdGorchBro]

Is it possible to condemn the abuses of the Bush administration without buying into overblown end-of-the-Republic rhetoric? If the Constitution survived the Alien and Sedition Acts, Lincoln's suspension of habeas corpus, and FDR's internment camps, surely it will survive this.

To put it another way - this Congress may lack the spine to oppose Bush, but that will not necessarily be true for future congresses vs. presidents who assert this expansive view of executive powers.

[Gary Farber]

BBR: "I want to feel that they are doing everything they can to protect me and mine against something I'm entirely powerless to."

I want to feel that, too.

Are you familiar with the military saying, "Hope is not a plan"?

Have you considered that what one wants to believe, and trust, and have faith in, may not be the same as being something one should believe, and trust, and have faith in, and that, in fact, prudence suggests that we doubt most that which we want to believe in?

I suspect that if a Democrat said what I just quoted you as saying as a defense of President Bill Clinton, or a hypothetical future President Hillary Clinton, or a hypothetical President Howard Dean, and so on, that you might be inclined to approach such a thought with skepticism. Am I wrong?

I'd also suggest, although I'm quite sure you will meet this suggestion with considerable skepticism, that it is unwise to declare, absent mind-reading or direct statements, that people you disagree with, or who hold different thoughts or perspectives than you, believe "there was never, or is now no terrorist threat."

It's apt, after all, to be a belief held by, out of nearly 300,000,000 Americans, maybe as many as ~5%, I'd venture to suggest. Perhaps I'm wrong. If you have any specific polling data to offer in contradiction -- and by "specific" I mean a question that asks something directly to the point, not a question that asks "do you support Democrats," or some similar tautology -- please do offer it. Meanwhile, mindreading penalty: lose ten yards.

I'd respond similarly to any Democrat, liberal, or leftist, who suggested that, say, the major motivation Republicans in supporting the Administration is a desire to enlarge Halliburton profits, or because Republicans are generally racist, or that Republicans Just Don't Care About Freedom, or some similarly absurd presumption.

"I just don't believe what I think I know what the President has done to this point is 'unchecked' power."

Fair enough. Could you describe your understanding of the checks involved, please?

Stickler: "And you choose George W. Bush? Given all the evidence that has accumulated since 2001?

Please contact me about an exciting opportunity in investments! I have both bridges and swampland -- ah, view property -- to sell you."

I regret to point out that this is a content-free comment, which consists solely of mocking. Although not violating the spirit of the posting rules, it seems to me, it certainly violates the spirit of "courtesy" and it violates the notion of contributing content, not mere abuse. I stipulate that there's no such rule here on the last, and I'm just projecting my own desires on that one, and that I'm imperfect and have been guilty of past violations at various times, myself.

But Blogbudsman is at least, apparently, making his own version of attempting to respond on substance, up to a point, and I'd suggest that a pile-on of simple mockery is more useful to feeling good about venting one's hostility and frustration at an available target than it is to furthering any other goal. Just, of course, one guy's thought.

[Dantheman]

"Is it possible to condemn the abuses of the Bush administration without buying into overblown end-of-the-Republic rhetoric?"

Sure. Is it possible to condemn the abuses of the Bush Administration and not be labeled as irredeemably soft on terrorism, or objectively in favor of our enemies, or whatever the Adminsitration's latest formula for attacking Democrats is? The jury is still out.

[hilzoy]

3GB: "Is it possible to condemn the abuses of the Bush administration without buying into overblown end-of-the-Republic rhetoric? If the Constitution survived the Alien and Sedition Acts, Lincoln's suspension of habeas corpus, and FDR's internment camps, surely it will survive this."

For what it's worth, I think we will survive this as well. Though I am troubled by the number of people who are prepared to just swallow this without a murmur.

On the other hand, I don't think that the Constitution just survives all by itself. It survives, if it does, because people recognize a threat to Constitutional government when they see one, and oppose it. That's what I'm trying to do.

[socratic_me]

Robert,

There are ways to make a point without being a jerk. Just a thought.

[ral]

Gary: ... believe "there was never, or is now no terrorist threat."

It's apt, after all, to be a belief held by, out of nearly 300,000,000 Americans, maybe as many as ~5%, I'd venture to suggest.

I have personally met one such person, at a DFA meeting prior to the 2004 election, who wanted to show a DVD claiming that the World Trade Center was brought down by explosives.

As for tin-foil hats, I am with cleek (above) and by extension Teresa Nielsen-Hayden:

I deeply resent the way this administration makes me feel like a nutbar conspiracy theorist.

[Also, an obligatory "yay, hilzoy!"]

[Ugh]

The US government is developing a massive computer system that can collect huge amounts of data and, by linking far-flung information from blogs and e-mail to government records and intelligence reports, search for patterns of terrorist activity.

link

(apoligies to Gary if he already linked)

[Ugh]

And "apologies" too.

[Jay C]

Uhh, Gary......
Not that I want to argue with you or anything (I know better than that!); but I really didn't think my response to BBM's 8:47 comment was "defensive backpedaling" over his (IMO) inane remark about "terrorist threats": I was just trying to clarify my point - without bending ObWi posting rules - realizing that my 10:27 comment may not have been all that clear.

Others have expanded on my point, so I won't belabor it: but the bottom line is (to me) pretty clear:
1) Threats to the country (of whatever degree) exist; and it is the duty of every branch of the US Government to fight them as best they can.
2) "The best they can" MUST respect the rights and responsibilities laid out in the US Constitution (not to mention international treaties) - of which overweening and unaccountable Presidential power is NOT one - however inexpedient any such limitations might be.

If the phrase "rule of law" (on which so much of our entire governmental system's moral foundation rests) is to mean anything at all (other than a cheap catchphrase for politicians to mis-cite) - it must not EVER be modified to add "where convenient" - said "convenience" being in the sole discretion of the Executive to define. However you want to define that sort of system, "American" just doesn't fit.

[ThirdGorchBro]

Hilzoy: On the other hand, I don't think that the Constitution just survives all by itself. It survives, if it does, because people recognize a threat to Constitutional government when they see one, and oppose it. That's what I'm trying to do.

And since I probably wasn't too clear in my original comment, let me just say that I agree completely with that sentiment, and am grateful for people like you who watch the Watchmen.

It's kind of difficult for people like me to find the right tone to take, these days. I don't want to look like I'm agreeing with you dern libruls all the time, but I've long since passed the point where I can defend this administration and stay true my interpretation of what conservatism is. Sucks to be me, I guess. ;)

[Ugh]

ThirdGorchBro-

You can join the rest of us in the "conservatives-in-exile" movement.

[blogbudsman]

Gary, my "there was never, or is now no terrorist threat." retort came singularly out of the use of the word 'blather'. We all know here that if you use a word (typo'd or not) you better stand by it. And I did not support Clinton's impeachment. Some of my best friend like the Clintons. The checks involved are the American electorate. If you have convinced enough, you win. By the way, can ex-Presidents be impeached?

[dmbeaster]

blogbudsman

ral, I'm not entirely sure that I'm that optimistic, I just don't feel paranoid about the intentions of this administration regarding this issue.

Look, your position just boils down to
IOKIYAR. I am not willing to have our laws be judged by your partisan standard as to when you feel paranoid.

[ThirdGorchBro]

Ugh- Do we have meetings? And, if so, are there donuts?

[Ugh]

ThirdGorchBro -

There are no meetings in exile (but there are donuts and beer, which explains our weight problem).

[blogbudsman]

Ahh ral, Atrios speak. I doubt if I'm that strong a Republican. I'm a 'Merican.

[Pooh]

Robert, BBM's intransigence is frustrating, but posting rules uber alles.

Are we not a blog bound by the rule of law?

[hilzoy]

We are. -- And thanks, 3GB. You should check out the rest of Greenwald's post. His second point is:

"(2) This scandal is not about liberalism or conservatism, but is about core American political values."

From his discussion of that point:

"This approach is not a cynical tactic designed to create a false appearance of bipartisanship -- such as when Bush defenders parade Joe Lieberman around as "proof" that the "serious Democrats" support the Administration’s terrorism policies. Conservative opposition to the Administration on these issues is not merely comprised of a handful of token or conflicted conservatives. Opposition to the Administration’s law-breaking among conservatives is substantial and it is growing. And it is easy to understand why this is so – the Administration’s theories of presidential power are repugnant to many core principles of true conservatism, from the supremacy of the rule of law to the importance of restraining the powers of the Federal Government (as the Founders intended), particularly when it comes to those powers which can be wielded by the Government against American citizens.

Importantly, this is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left. Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free."

[blogbudsman]

blogbudsman!! Release thread! Be gone! Donuts and beer? - ugh!

[Dantheman]

blogbudsman,

Going back aways, but you said:

"And no one has claimed to ignor the law whenever they feel like it."

Today we see an example to the contrary.

link

[Slartibartfast]

Before you take that as a shocker in and of itself, consider who is the classifying authority.

If the classified information in question was the identity of Ms. Plame, on the other hand, you may have a point.

[rilkefan]

In case anybody cares, Libby is reportedly saying Cheney et al authorized him to out Plame. See e.g. Kos.

[Dantheman]

Slarti,

Please clarify. The Plame identity does not appear to be what Libby testified was ordered to be revealed, but I don't see how revealing other classified information in order to "defend the Bush administration's use of prewar intelligence in making the case to go to war with Iraq" is entirely blameless. At best it is releasing classified information to persons who are do not have clearance. If the Administration decided to entirely declassify the information, I would agree with you that they have the right to do so.

[rilkefan]

Or see dan's link. Oops.

[rilkefan]

And I see Slart's point. Oops again.

[Slartibartfast]

In other words, agency heads (including the President) may declassify information that they consider in the best interest of the public to declassify. The wording is a bit loosy-goosey on this, but if it can be stretched to the point that declassification can legally be used in direct contradiction of some-statute-or-other relating to covert identities, there's an obvious problem.

Whether what in fact happened was a nearly simultaneous declass-and-distribution, or something of more...tenuous...legality, I don't know. I have seen this sort of thing happen out of sequence without anyone getting arrested, but I have no idea if that sort of thing applies in this case.

[john miller]

"If the Administration decided to entirely declassify the information, I would agree with you that they have the right to do so."

The way the statement in the link is phrased, it does not sound as if the information had been declassified, although I think we need to wait for more information to find out if that was the case.

Your statement is correct, and the President has the right to declassify anything he wants to.

However, if the information remained classified, then I think it falls into the category of illegality. Again, IANAL.

[hilzoy]

Slarti -- just posted on this, thereby missing everyone else's pointers to it. I'm not sure the NIE has ever been declassified, let alone in '03.

[Dantheman]

Slarti,

As noted above, I am OK with declassifying it. But that isn't what is alleged. Rather the article said classified information was privately released for political purposes.

And if it were declassified now (2+ years later), I suspect that it would not meet definitions of nearly simultaneous in your mind, am I correct?

[Slartibartfast]

IANAL, too.

It's not clear that the President can in fact "declassify anything he wants to", but the limitations of this aren't clear, either. Here's the text; maybe some lawyers can tell me just how badly this is written:

Sec. 3.2. Authority for Declassification.

(a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(c) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the Assistant to the President for National Security Affairs. The information shall remain classified pending a prompt decision on the appeal.

(d) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.

Source: EO#12958

[bob mcmanus]

"By the way, can ex-Presidents be impeached?"
...bbm 2:42

Impeachment

Here is a post and thread that discusses impeachment, using original source material.

The consensus was that impeachment can be used against any public official, in or out of office. The consequences of conviction include the loss of pension and percs, and disallowing future government office. IIRC.

[Slartibartfast]

am I correct?

You would be correct. The papers, though, are notoriously shabby in their attention to detail in these matters, so I'm not leaping to conclusions either way. Could be just fine; could be the end of the world as we know it.

[Nell]

The comments to Glenn G.'s post are almost as good as the post.

One vitally important theme is that it is the Constitutional separation of powers, the system of checks and balances, that's at risk here -- not 'rule of law' in the abstract. It's the administration's claim of inherent right to interpret the law without any meaningful check by Congress or the courts that is so dangerous, and so un-American.

Someone above raised the issue of trust. That's the beauty of the system we've had in place for 218 years: Trust in particular people is not necessary, and that's a good thing, because in an actual democracy some large percentage of people will not at all trust the particular leadership they're stuck with until the next election (or impeachment).

One commenter (almost certainly a lawyer) makes the point that

Even Congressional approval cannot give [the President] the ability to write the Judiciary out of the 4th Amendment.... No revision to FISA can delete the warrant requirement for US citizens in the US.

I'm convince that they don't really believe their own sweeping power claims, but it's all they've got so they're going all in with it. That's why it's crucial to oppose them directly, firmly, and broadly.

They thought they could get away with it because the fear-fog of war could be kept going indefinitely. But if we stick to the principles we're united on, that house of cards will fall. Possibly, at that point, many of the other abuses will get a harder look as well.

[john miller]

Referring to the Libby issue, this quote from hilzoy's post is perhaps relevant:

"Libby specifically claimed that in one instance he had been authorized to divulge portions of a then-still highly classified National Intelligence Estimate "

[Slartibartfast]

Ah, hilzoy, I see we're crossing each other. Short answer: the NIE need not be declassed in full.

[Nell]

A review of Gonzales' answers cannot be encouraging for those who are advocating we just trust this administration. In the country I'd like to think we live in, an Attorney General's answer to a question like Can the president suspend, in secret or otherwise, the application of Section 503 of the National Security Act, which states that "no covert action may be conducted which is intended to influence United States political processes, public opinion, policies or media"? would be an automatic "Certainly not."

Though, on reflection, this might be one of the most frequently and thoroughly violated statutes of the last five years.

[Gary Farber]

BBR: More of Senator Graham's views.

Incidentally, everyone heard about ADVISE?

Another question: anyone think any of these statements from a prominent Republican souond at all familiar? BBR? DaveC? Anyone?

And just to marvel: in an addendum to this post, I note deep thinker Mickey Kaus saying this in reaction to last night's FISA developments: " ...that shows how wildly obsolete the Constitution's 'probable cause' requirement is...."

I fear my comment is a bit snotty. Oh, dear.

Meanwhile, the WSJ expands on the latest the-king-can-do-no-wrong talking point: abolish FISA.

It's "an artifact of post-Vietnam and post-Watergate hostility to executive power" and "Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s." Etc.

[Dantheman]

"Incidentally, everyone heard about ADVISE?"

And will the next supersecret and illegal surveillance program to be revealed be named CONSENT?

[Jay C]

Bad link, Gary: "Graham" link goes to ... that other Senator.

[Ugh]

Incidentally, everyone heard about ADVISE?

Why yes Gary, why do you ask?

[Tom Treder]

Haven't Gonzales' evasions risen to the level of contempt of Congress? Can't Congress compel a witness to answer? Isn't jail a possibility if he continues to balk?

[Gary Farber]

"Bad link, Gary: "Graham" link goes to ... that other Senator."

Thanks. Yes, I meant to link to this post, the one just above the other. Sorry. Interviews from last night's Newshour with Graham and Harman on the subject at hand.

[Gary Farber]

Jay C:

Uhh, Gary......
Not that I want to argue with you or anything (I know better than that!); but I really didn't think my response to BBM's 8:47 comment was "defensive backpedaling" over....

Perhaps I'm somehow missing it, but a "find" search on this thread for the phrase "defensive backpedaling" shows the only use of it to be the one I'm replying to -- thus making me wonder about the use of quotation marks here and what is being quoted -- and I also amn't noticing that I ever, in this thread prior to this, responded to anything you wrote at all, Jay C.

Perhaps I've skipped over that comment, and am forgetting it due to lack of sufficient sleep and my usual tendency to not remember all of the several thousands of words I've written in various places today, as on many days. If so, apologies. If not, confusion.

[Gary Farber]

BBR:

The checks involved are the American electorate. If you have convinced enough, you win.

Have you ever read the Federalist Papers? I can't recommend them highly enough to everyone, including non-Americans.

Can you clarify for me, please? Are you saying that you don't believe in our tripartite system of government, with power split between Executive, Legislature, and Courts?

Are you saying that the intention of the Founding Fathers was not that each of these three parts of the federal government should act and as check and balance on the other two?

Or are you saying that you feel that is now obsolete and a bad idea? Or what?

"By the way, can ex-Presidents be impeached?"

No. (And since it seems to come up a lot, members of Congress can't be impeached, either; they can only be censured, or expelled, and/or then tried by the courts.)

[bob mcmanus]

"No. (And since it seems to come up a lot, members of Congress can't be "

Gary, did you follow my link of 3:30?

Impeachment extends beyond removal from office.

"An officer can be impeached even after leaving office. (Governors of Delaware and Virginia could be impeached only after leaving office.) It follows that "impeachment" was conceived as more than just a lever to break a corrupt official's white-knuckle grip on the big desk. [Correction: It has been done, in the case of Secretary of War Wm. Belknap (1876), who resigned as the House proceeded to a vote. Good general reference Q&A here.]

Impeached officers can be barred from "any office of honor, trust, or profit under the United States". An impeached Bill Clinton, for instance, could not have been credentialed for goodwill missions to tsunami-land. Impeachment held the prospect of a political "death penalty", a lifetime ban ... and possibly more."

You accuse me of argument by assertion.

[trilobite]

Great, magnificent post, hilzoy.

5 years ago, when the Bushies began making up facts and ignoring reality in pursuit of abstract economic theory, I started saying in jest, gee, when did I move to the Soviet Union. I'm not laughing any more.

I miss America.

People like blogbudsman seem remarkably sure that what happened to Padilla (and how many others?) will never happen to them. Setting aside their unsupported belief that no future President will ever deliberately turn these powers against himor his ilk, has he never heard of a typo? Seriously, we arrested how many people in Iraq -- that we admit to -- by mistake?

I wonder if bb's name happens to differ from a terrorist suspect's by one letter. I wonder if he will discover that fact some late night in Guantanamo...

[CharleyCarp]

Ugh: Jose Padilla's cert petition is http://www.supremecourtus.gov/docket/05-533.htm>pending. As you note, the government's application to transfer was http://www.supremecourtus.gov/docket/05a578.htm>granted.

3GB, I'm not at all sure the current situation is survivable. The "war" were in is perpetual: we have to wait until people like BBM are no longer scared.* The claims are extravagant, and if upheld by the courts, become part of the constitutional fabric. This distinguishes both the A&S Acts and Lincoln's "suspension." (The suspension, of course, was thereafter enacted by Congress, and was quite likely appropriate.) The internment cases stand as a loaded gun. That the Constitution has "survived" them is only a function of no one trying to use the power. Yet. (You're old enough to recall that internment of Iranian students was briefly floated in 79/80. I remember because I met my wife at a demonstration related to this . . .)

* There is something people scared of Islamist terrorism can do to protect themselves. Move to the Midwest. Living in fear of Islamist terrorism in Jefferson City is like living in fear of earthquakes in New Orleans. Of course it can happen, but the danger is so remote as to make the fear look like hysteria, if not a symptom of some mental illness.

Actually, we probably only have to wait until a president comes along that the currently scared are so enamored with, and then they'll find that maybe their anger at that new president allows them to overcome their fear. Defeat the Terrorist Menace by electing Hillary!

[CharleyCarp]

NOT so enamored with!

[Gary Farber]

"Gary, did you follow my link of 3:30?"

No, Bob. I've been blogging, and reading stuff in relation to that.

Whatever you wrote, I skimmed it as yet, and haven't yet read what you linked, and wasn't responding to it.

Likely I'll check your link later, but I have a lot of other stuff to get to first that I'm highly behind on. Apologies.

[Ugh]

Thanks CharleyC.

[bob mcmanus]

I should think more deeply about this before I write, but here goes.

The criminal law does not prevent murder, it only creates the processes under which murderers are punished.

And so the 4th amendment does not really prevent the government from wiretapping your phone without a warrant.

Over at the Next Hurrah, the bloggers are talking about Bush creating a "New Constitutional Understanding." It is comparable to the years before the Civil War, and the nullfication debates, when citizens and states thought that the Federal Government "ruled by consent of the governed". The Civil War proved them wrong, changed a foundational principle of the Constitution by force and violence. We are ruled by the majority.

And now, not only by the man elected, but also very importantly by those who elected him, we have a new constitutional understanding. The Bill of Rights is provisional, is subject to suspension and interpretation by those in power.

Can't establish a state religion? Sez you. Need to follow the amendment process? No, we don't, we just declared Catholicism illegal and put the priests in jail. But that is illegal? What, here is the law. It violates the Constitution? So effing what.

Whatcha going to do about it.

People say I am mean to the likes of charleycarp for not appreciating his efforts. I do appreciate his efforts, but they are under the old understanding, that the laws and courts and decisions are important. Those thing are no longer important, no longer matter.

What has been done cannot be undone, and will not be undone by the election of an oath-following President. Like the pre-civil war understanding, perhaps this was the reality all along. But the illusion, the pretense, the consensus that we were a nation of laws not men, even tho it be a majority of men, served us well.

Now that illusion is gone forever. America is now a place where he who has the guns makes the laws. A step further than 1865, he who has the guns makes all the laws. And if you want different laws, you will need to break out the guns. And never put them down.

The Return and Revenge of the South.

[Jay C]

Gary:
You're right.
The "defensive backpedaling" bit was from Anarch, not yourself.
My bad.
Long day.

[Gary Farber]

Bob:

Gary, did you follow my link of 3:30?

Impeachment extends beyond removal from office.

I've now read RonK's (a guy I've not seen around in ages) piece, and his reference.

It's interesting, but the Federalist Papers, despite my recommendation of them earlier and always as guides to our form of government, the thinking of certain founders, and tremendously thoughtful political thinking, have no force of law whatever. So trying to cite them as such fails.

Beyond that, the only hard case cited about impeachment-after office is the Belknap case in 1876, which is not, I think, apt to automatically be accepted as a controlling precedent in modern times, although, of course, the Senate is pretty much free to make its own mind as to whatever the hell they'd like to do in a future impeachment trial, especially given the relatively few precedents. But given that he was acquited precisely because of the votes of Senators who felt that impeachment-after-resignation was invalid, it doesn't seem a terribly clear precedent, especially given its singularity:

In 1876, Secretary of War General William Belknap, accused of accepting a bribe, resigned just hours before the House was scheduled to consider articles of impeachment. The House went ahead and unanimously impeached him, and by a vote of 37-29 the Senate rejected the argument that Belknap's resignation should abort the case. The Senate proceeded with the trial, but Belknap was narrowly acquitted. A number of the Senators who voted for acquittal explained that they felt they lacked jurisdiction because of his resignation.

Making the flat statement "Impeachment extends beyond removal from office" seems to me to declare an absolute lack of ambiguity and an absolute statement of controlling precedent that is not supportable as so flat and absolute, at the least. But, as we know, I tend to be cautious about that sort of thing.

[Gary Farber]

And as the cite RonK uses says: "However, impeachment is not a criminal trial and removal from office is not criminal punishment."