What's at stake

by Katherine

To explain what  I think is at stake with the Feingold censure resolution, I was going to write a post explaining the legal theory that links the NSA program and the torture scandals. It turns out that several months ago Marty Lederman (who I like to think of as the head of the OLC-in-exile) explained it more clearly than I can:

Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war. In OLC's words -- written just one week after the AUMF was enacted -- neither the WPR nor the AUMF, nor, presumably, any other statute, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," OLC wrote, "under our Constitution, are for the President alone to make."

This is the legal theory that originally justified the NSA program. It is exactly the same legal theory that John Yoo relied on when he calmly told Jane Mayer: “It’s the core of the Commander-in-Chief function. [Congress] can’t prevent the President from ordering torture.” 

We first became aware of this argument in the famous OLC torture memo. At the time, shortly after the Abu Ghraib photos were released, it was a source of great embarrassment and almost universal condemnation. On this site, the ever-moderate von (hi von!) wrote this evaluation:

The DoD memorandum essentially contends that the President can choose to disregard any law that he, in his sole opinion, believes to conflict with his duties as Commander in Chief. Let that sink in. The President has full discretion to disregard law whenever he, and he alone, believes that (in his sole opinion) the law conflicts with what he deems to be the proper scope of his duties as Commander in Chief. No Court review. No appeals. The President controls.

This is not rule by law; it is rule by men. It is, roughly speaking, an argument for Fascism. As you might expect, it is an argument that is thoroughly and deeply flawed not only under the Consitution (under any reasonable reading thereof) but also under the entire course of Anglo-American law, post Blackstone. This is not a close or difficult question. The argument advanced by this memorandum is one that a half-drunk first year law student at a fourth tier law school could convincing[ly] retort between hits off his bong.

Other commentators used less colorful language, but that was the general reaction.

The administration never really abandoned the argument, though. They wrote a new memo repudiating most of the OLC memo, but it did NOT repudiate the commander-in-chief argument. It omitted it, and said that it had been "unnecessary"--but that's not the same thing. At his confirmation hearings, Attorney General Gonzales was asked over and over repudiate the unlimited-commander-in-chief-power argument. He wouldn't do it.

It wasn't until December, though, that the commander-in-chief override made its grand comeback.

The Attorney General used it to defend the NSA program, arguing at a press conference* that even if the AUMF had not supposedly partially suspended FISA, "the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."*

The President referred to it in his signing statement to the McCain Amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

To quote Lederman again:

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks. [UPDATE: Or, as Matthew Franck eagerly puts it over at the National Review, "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down."]

And now this argument is NOT regarded as an embarrassment. Not anymore. Patrick Leahy tried to get Supreme Court Justice Alito to reject it decisively at his confirmation hearings, but he did not succeed:

LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?

ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.

LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?

ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.

LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?

ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.

But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.

Senator Pat Roberts, chair of the Senate Intelligence Committee, has relied on the commander-in-chief override theory to declare that FISA is unconstitutional.  Bill Frist agrees; he has concluded that the NSA program is "constitutional and legal." Arlen Specter isn't quite sure, but he thinks it's a serious possibility.  Most Democrats say we don't know for sure, and we need to wait for the results of the intelligence committee investigation--this despite the fact that the intelligence committee voted last week never to hold that investigation.

In short, the commander-in-chief override has become downright reputable in its old age.

There's this one uppity Senator, though, who's just not budging an inch:

The President's shocking admission that he authorized the National Security Agency to spy on American citizens, without going to a court and in violation of the Constitution and laws passed by Congress, further demonstrates the urgent need for these protections. The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.

On behalf of all Americans who believe in our constitutional system of government, I call on this Administration to stop this program immediately and to fully cooperate with congressional inquiries and investigations. We have had enough of an Administration that puts itself above the law and the Constitution.

What a lunatic. What a traitor. What a cynical opportunist. It's no wonder the rest of the Democrats** are literally running and hiding.

_________________

*In response to some commenters' questions about whether the NSA program violates FISA, note these remarks from the same press conference, as described by Lederman:

In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.")

**Except Tom Harkin. Yay for Tom Harkin! If I recall correctly Harkin was Wellstone's best friend in the Senate, so it's nice to see him have Feingold's back when almost no one else does.

Comments

[rilkefan]

"What a lunatic. What a traitor. What a cynical opportunist."

By this logic, Feingold could call for the assassination of Bush and you'd mock senators who didn't sign on.

[Nell]

And yay for Katherine! I feel clearer and saner for having read this post.

[Jesurgislac]

"In this historic hour, we German Social Democrats solemnly profess our allegiance to the basic principles of humanity and justice, freedom and socialism. No Enabling Law gives you the right to annihilate ideas that are eternal and indestructible. The Anti-Socialist Law did not annihilate the Social Democrats. Social Democracy can also draw new strength from fresh persecutions. We greet the persecuted and the hard-pressed. Their steadfastness and loyalty deserve admiration. The courage of their convictions, their unbroken confidence, vouch for a brighter future." -Otto Wels, 23rd March, 1933. What a lunatic. What a traitor. What a cynical opportunist.

[Anarch]

By this logic, Feingold could call for the assassination of Bush and you'd mock senators who didn't sign on.

Not even close to following that there, rilkefan; mind expanding?

[ajay]

And by "mind expanding?" we mean to say "Are you stoned?"

[Slartibartfast]

I read that as "do you mind putting on a little water weight"?

It's probably because I'm looking at it from the Right, though.

[Slartibartfast]

Speaking of which, I'd like my stake medium rare, please.

[cleek]

all those honorable Republicans had better hope W wraps-up the tWoT before his term is out. since they've demonstrated they believe nothing can limit the President's 'wartime' powers, and won't lift a finger to stop him from doing so, they might be in for a rough ride if the next president is a *gasp* Democrat.

[CharleyCarp]

While I agree that these are the issues, I think it's important to keep in mind that they're not necessarily "at stake." That is, the Congress is not voting yea or nay on Yoo-ism. It's just making sausage. (Or not making sausage, as the case may be).

A failure to censure is not the same as an endorsement of the theory. It's only a failure to censure, for reasons as varied as the interests a legislator must balance in doing her/his job.

[Slartibartfast]

I think it's a little more than that, CC. A failure to pass censure is less important than whether Senator Smith voted his convictions. If you've got various congresscritters testifying in the media that Bush definitely broke the law but then not following up in the vote to censure, I think that says something.

[Jesurgislac]

cleek: all those honorable Republicans had better hope W wraps-up the tWoT before his term is out. since they've demonstrated they believe nothing can limit the President's 'wartime' powers, and won't lift a finger to stop him from doing so, they might be in for a rough ride if the next president is a *gasp* Democrat.

So long as Diebold is in power, how could that happen?

[liberaljaponicus]

. If you've got various congresscritters testifying in the media that Bush definitely broke the law but then not following up in the vote to censure, I think that says something.

I don't want to go ballistically pedantic on you, but I am not sure how many congresscritters are on record as saying that the admin broke the law. I admit to not keeping track of who is saying precisely what, but you seem to be sure that this is the case. In fact, a google news search has stuff like this

GOP political analyst Mike Baker went further: "Feingold is obviously oblivious to the US Constitution. He claims the president broke the law yet where's the president's due process that Feingold so quickly bestows on terrorists detained in Guantanamo?link

It seems to me that if other senators had been so forthcoming with these kinds of statements, the usual suspects would have been on it like white on rice. Also, I'm sure that the leftside bloggers would have had a field day with people who are not going to censure, but say that Bush broke the law. Permit me to rant a bit here, but it is this damned if you do damned if you don't ploy that I find disturbing. Saying 'congresscritters do X' is good for a chuckle, but when the question is something as serious as this, it comes off as blatant propaganda.

[liberaljaponicus]

I should add that when I say

It seems to me that if other senators had been so forthcoming with these kinds of statements

I don't mean statements like Mike Baker's, but statements like "Bush definitely broke the law"

[CaseyL]

If the GOP candidate loses in 2008, but the GOP keeps control of Congress, the Bush Admin will spend its last months in office declaring victory in the WoT, and pulling troops out of the ME.

The GOP Congress will then pass a resolution stating that all authorizations of power granted to the President in wartime are suspended, because "the war is over! and we won!" Then it will begin an investigation of the new Democratic Administration on January 22, 2009, to make sure not a single NSA surveillance is ongoing, not a single person is still incarcerated in any of our gulags, and no one anywhere is using any illegal, extra-legal, questionable means to do anything at all. Then the GOP Congress will begin impeachment proceedings.

If a Republican wins in 2008, and the GOP keeps controll of Congress, none of the above will happen. The war will continue, the Supreme Commander Leader God-King powers will stay in place, and the GOP Congress will say, "Yippee."

[Slartibartfast]

Well, there's always Feingold's former partner in folly.

But, point taken. Certainly there's a lot more Senators expressing doubt as to legality than there are Senators saying that it was illegal without a doubt.

[wmr]

If the GOP candidate loses in 2008, but the GOP keeps control of Congress, the Bush Admin will spend its last months in office declaring victory in the WoT, and pulling troops out of the ME.

Or maybe he'll take a page out of Poppy's book, invade Iran, and let the Dems take the fall.

[Slartibartfast]

Or maybe he'll take a page out of Poppy's book, invade Iran, and let the Dems take the fall.

Ok, I'm scratching my head over that one. What does that mean?

[wmr]

Slartibartfast:

Somalia, Dec 1992

[Slartibartfast]

Ah. I guess I was confused because I couldn't remember when GHWB invaded Iran.

Democrats took the fall for that? I wasn't paying attention at the time.

[CaseyL]

Haiti, too, wmr. Bush I sent US troops into Haiti his last weeks in office. Two little housewarming prezzies for the Clintons.

[john miller]

Slarti: Clinton took the heat after the Black Hawk incident. Both for "cutting and running" and for being there in the first place.

[Slartibartfast]

Hmmm...so "Clinton" and "Democrats" are interchangeable? Useful, that.

Maybe it's all part of the payback for Nixon taking the fall for Vietnam, eh?

[ral]

Slarti, do you think Nixon took more of a fall for Vietnam than Johnson? That's not how I remember it.

[Slartibartfast]

Absolutely, ral. I mean, not by smart, in formed people, but neither would such people be blaming Clinton for getting us into Somalia so much as for the way he got us out.

[CaseyL]

"Hey, hey, LBJ
How many kids did you kill today?"

Nixon resigned in disgrace because of Watergate.

It was LBJ who withdrew from the 1968 Presidential electon because of Vietnam.

[Slartibartfast]

Nixon resigned in disgrace because of Watergate.

Thanks for the update.

[CaseyL]

"Maybe it's all part of the payback for Nixon taking the fall for Vietnam, eh?"

"Thanks for the update."

Always happy to provide annotations, history refreshers, and other happy meanders down Factual Memory Lane.

[will]

Excellent post! Thank you.

[Slartibartfast]

So, here's the thing with Clinton and Somalia: instead of being credited with a (arguably) highly successful humanitarian response in Somalia, he's instead remembered for this.

I haven't seen anyone argue to any good effect that Somalia was a complete debacle, but I have seen many people argue that the events leading up to and immediately following the slaughter in Mogadishu were, as a whole, CF. And of course there are ill-informed conservatives who think of Somalia as one extended Black Hawk Down, just as there are liberals who associate Nixon with the worst of the Vietnam War, for escalating our presence in Vietnam, etc. It's probably wise to relegate all of the above to a single bin labeled "ill-informed", but this whole subthread wasn't my idea to begin with. Plus, I really hate to harp on the ill-informed business because any minute Gary will show up and point out where I have all my information wrong.

[rilkefan]

Anarch, I took Katherine to be criticizing the D senators in my quote, based on the following and on the context of the previous thread where the issue of Feingold's possible opportunism had been noted from a liberal perspective. If instead she was just referring there to the response on the right, my comment should have quoted the next bit. I have little doubt about the merit of Feingold's accusation - but unless I'm confused the "running and hiding" of the Ds is in response to the censure resolution, not the accusation, and conflating the two is unfair.

[john miller]

Slarti, one final (maybe) comment on the subthread. Unfortunately, I think the :ill-informed" label can be readily applied to people on all sides of the political spectrum.

I have begun to think the "ill-informed" far outnumber the "well-informed" in this county. Of course Gary is the exception that proves the rule.

[cleek]

I have begun to think the "ill-informed" far outnumber the "well-informed" in this county

welcome to the club! the chips and soft drinks are over there....

[Slartibartfast]

Me: It's probably wise to relegate all of the above to a single bin labeled "ill-informed"

john: I think the :ill-informed" label can be readily applied to people on all sides of the political spectrum.

That's as close to complete agreement as I ever hope to get.

[rilkefan]

"the exception that proves the rule."

Dangerous phrase to use in this context, as few people understand its real (or if you prefer, original) meaning...

[ral]

I remember a joke about prime numbers where that phrase made an appearance... alas, I don't remember it well enough to find it.

[Slartibartfast]

So, the square root of negative one walks into a bar...

[heet]

Not to derail, but...

"the exception that proves the rule."

I thought I knew what this meant until I googled.

From here:

Let us say that you drive down a street somewhere and find a notice which says “Parking prohibited on Sundays”. You may reasonably infer from this that parking is allowed on the other six days of the week. .... So, in its strict sense, the principle is arguing that the existence of an allowed exception to a rule reaffirms the existence of the rule.

Interesting... I've been misusing/misreading a phrase for decades!

[Francis]

"exception proves the rule"

way back in the early 80's when i was majoring in math/computer science, i learned that the phrase was correctly used as follows:

establish a general theorum. establish a generic exception. Prove the exception to be false. QED. The exception proves the rule.

of course, that was a long time and many alcoholic beverages ago, so everything i wrote could be wrong.

[Anarch]

Anarch, I took Katherine to be criticizing the D senators in my quote, based on the following and on the context of the previous thread where the issue of Feingold's possible opportunism had been noted from a liberal perspective.

I tend to agree. What I don't get is what logic necessitates Katherine agreeing with calls for assassination.

[rilkefan]

The logic that X having done A in reaction to claim C, and obviously claim C, and Y having reacted [to A, which we elide], Y is mockworthy.

[pdf23ds]

In Gary's case, I would think it would be "the exception who proves the rule".

[Anderson]

Wish that Katherine had her own log-in. She's only an occasional poster, but then, so are Von and Charles and Edward ....

[Slartibartfast]

...and me, at most.

[Katherine]

Charley, I meant more in a general sort of way.

I'd rather real hearings than censure, frankly. I want to see the original OLC memo about this & the rest of those OLC memos too. Give me a subpoena before a ritual denunciation any day. But to say we're waiting for the outcomes of hearings that we know won't happen, to make it sound like Roberts' intel subcommittee will do anything, to say that we have no idea whether it's legal....And somehow we've gone from the commander-in-chief argument being a crazy fringe position to actively denouncing it being a crazy fringe position.

Rilkefan, the differences between the censure resolution and the accusation seem to be:
1) a bunch of whereas clauses
2) the words "we do hereby censure blah blah blah"
3) the fact that it's an official statement by the full Senate rather than an individual statement of one person.

Those aren't nonexistent but they're not nearly large enough to explain the fearful reaction. And assassination? Come on, that was ludicrous.

[Katherine]

(Re-reading, I now see why Charley thought I meant specifically with this resolution. Sloppy first line. What can I say, it was late.)

[rilkefan]

If censure is no big deal beyond Feingold's statement, why bother to hide it in your argument? If points 1) and 3) matter, why not propose a sense of the senate signing on to the accusation?

Re assassination, reductio ad absurdam requires an absurd endpoint; and really from a logical point of view I see no difference in the arguments.

[Katherine]

We're just going to annoy each other if we continue this. More so.

[Katherine]

BTW, re: the first line: when I said "what's at stake with the Feingold censure resolution" I was thinking--this is what Feingold believes is at stake in the NSA scandal. That's why he's being such a pain in the a*s, and why I'm glad he's trying.

Not: the fate of the Feingold resolution decides the fate of the commander in chief override.

Is it bad form to change your post around 24 hrs later to make your meaning clearer?

[Jackmormon]

Just add an update, Katherine. No bad form in that.

[bob mcmanus]

"Wish that Katherine had her own log-in. She's only an occasional poster"

I presume that this is Katherine's decision, and reviewing the amount of time I spend on blogs, I might have some sympathy.

[wmr]

rilkefan (or anybody else who's figured this out):

Since Katherine didn't put numbers in her post, I'm not sure what "1)" and "3)" are supposed to refer to. Also, aside from seeing that "Y" msut refer to the Democrat Senators who haven't rushed to support censure, I can't figure out what or who the other letters are supposed to refer to.

How about a version for those of us who aren't poets, engineers, or mathematicians?

[dr ngo]

Slartibartfast: just as there are liberals who associate Nixon with the worst of the Vietnam War, for escalating our presence in Vietnam, etc. It's probably wise to relegate all of the above to a single bin labeled "ill-informed",

Well, Gary Farber hasn't shown up yet, so I'll have to stand in for those liberals and ask you to explain just how it is "ill-informed" to associate Nixon, whose efforts resulted in the killing of at least as many people in Indochina as those of his late, unlamented predecessor, with the "worst of the Vietnam War." It is true that he didn't "escalate our presence in Vietnam," but he did expand the war into Laos and Cambodia (both nominally neutral) and he bombed North Vietnam more heavily than LBJ ever did. And, as the historical record makes painfully clear, he did all of this knowing that the US had no chance of winning the war, whereas LBJ at least stumbled about for a while in ignorance of that depressing fact.

Of course, as I always tell students in my Vietnam War classes, there's plenty of blame to go round for everybody. (Including Truman, Eisenhower, Kennedy, & Ford.)