Exactly
By Justin Gardner | Related entries in Law, Quotes“All I’m saying is the inherent authority argument in its application to me seems to have no boundaries when it comes to executive decisions in a time of war, it deals the Congress and courts out, Mr. Attorney General.”
-Lindsey Graham (R-SC)
February 6th, 2006 at 3:29 pm
Lindsey Graham/Karl Rove for Prez, 2008.
February 6th, 2006 at 3:42 pm
Heh. I’d be interested in half that ticket.
February 6th, 2006 at 4:51 pm
Well you could always do David Duke/Pat Robertson, but somehow I doubt that would do anything but rule up “the base”.
February 6th, 2006 at 4:55 pm
So I wonder if Lindsey Graham is saying there is NO inherent executive authority at all or the prez has just overstepped it (where ever “it” is) here.
February 6th, 2006 at 5:33 pm
Given the equivocation in Graham’s comment, I’d say he believes that there’s a line somewhere between the authority of the Legislative to make laws and the Executive to prosecute wars. I think Graham believes the line isn’t as far to one side as Bush has drawn it, but I don’t get the impression he believes that Congress has ultimate authority to dicatate to the president. Does he believe FISA represents that line? That’s what I wonder.
Personally, for all that I play devil’s advocate on this issue, I think the line lies closer to FISA than to “The president don’t need no stinking warrants in wartime.”
February 6th, 2006 at 11:57 pm
Just remember that Mr. Graham is a senator and is part of the legislative branch of government. I think all members of that branch would do well to remember that any outcome reached (on the amount/level of executive branch authority) during this administration will apply to administrations following it, including when a liberal or a left-wing nut liberal (oh no!) administration is in power.
By giving the executive branch of government unlimited authority (or nearly unlimited), we would basically be saying that we give our complete (or nearly complete) trust to one man, hoping that he will use that power for good and not evil. Should it be that way, or should we have some specific enumerated rules that limit the executive authority? How much authority is obviously under debate. Checks and balances, anyone? Remeber that for checks and balances to work, the checks have to be relatively equal to the balances. If the power tips to far to one branch, the balance is upset, and our government, the way that our forefathers set it up, will not work properly.
February 7th, 2006 at 1:32 am
It seems like an inherent part of Congress’ powers is to not only declare war but to undeclare it. If you think the President has overstepped the bounds in war time, bring up articles and impeach the bastard.
I don’t think that President Bush deserves impeachment. I’m not even entirely sure that his arguments aren’t correct. The only thing that I am 100% sure on is that the MSM has not fairly covered the story and that I’m being lied to by them. I also might be lied to by the president at which point, again, impeach him.
The legislature will investigate and either impeach for high crimes or misdemeanors or they will defund what they find excessive. This is their proper purview. I find it astonishing that no legislation has been introduced defunding the NSA’s warrantless wiretap program. It’s not that hard to write. These people make good money to propose and enact legislation. So why wasn’t legislation proposed?
February 7th, 2006 at 2:09 am
You know, just as well as I do, that Bush will never be impeached if he has a Repub majority…so asking for that is pointless,,.
So, what will convince you? Tell me and I’ll try to oblige…
Basically, you’ll never get impeachment because the right-wing won’t allow it and that’s just the plain fact of the matter. No chance of impeachment…at all.
February 7th, 2006 at 4:31 am
Personally speaking, given a choice between Bush’s “warantless wiretapping” of cell phones(which ironically have no wires and work through radio broadcasts) and a current member of the Demo super fringe in power, I’ll go with the devil I know, thanks very much.
I think the MSM has overblown the whole issue. My biggest problem is getting people to SHUT UP about their personal lives. I don’t have a wiretap but I hear plenty of cell phone conversations by customers who think the retail location I work at is their home office. As far as I’m concerned, this whole “privacy” thing is blown out of the proportion, especially since I can’t go a day without seeing someone driving while talking on their cell phone.
Bush is “tapping” international phone calls (you know, the kind where you call someone overseas from here or vice versa, the kind top-level Democrats cannot seem to mentally grasp the meaning of since partisan ship has choked their brains of oxygen.) between persons in the US and al-Queda and/or other terrorists groups takes precedence over someone’s alleged sacred right to privacy when they feel their conversations are important enough to be overheard in businesses and distract them from the road.
Even if Big Brother is tapping my phone calls, I wouldn’t even know about it and therefore do not care. I have nothing to hide in the realm of terrorist activity and my cell phone conversations simply aren’t that important. You do have a valid point though, if Kerry, Kennedy, or Hillary had the kind of war powers Bush is excercising, I’d be SCARED. Afterall, the Democrats thought it was fine to spy on Newt Gingrich’s conversation, so why should I believe anything THEY have to say about the sacredness of privacy?
February 7th, 2006 at 9:24 am
Justing,
“So, what will convince you? Tell me and I’ll try to oblige…”
The problem is that you don’t have anything to oblige with…
You are being deliberately obtuse when it comes to this issue, what is the difference between what the NSA is doing now and what was being done in Eschelon or Carnivore???? The ONLY difference now is that when NSA gets something that looks suspicious it gets passed onto the FBI. After we had 3000 people murdered, after we had the big Congressional hearings about how it was missed, after they came out and said that we need to be able to pass on this type of information - now you want to get indignant about NSA wiretapping international calls????? If I have misunderstood something here please fill me in on the ‘vast differences’ between projects Echelon and Carnivore and what the NSA is doing today!!! Why was it just ‘hunkey dorey’ before 3000 citizens were murdered and now it is ‘illegal and a supreme power grab’? Why shouldn’t we be laughing at you on this stand????
February 7th, 2006 at 9:31 am
Meridith,
“By giving the executive branch of government unlimited authority (or nearly unlimited), we would basically be saying that we give our complete (or nearly complete) trust to one man, hoping that he will use that power for good and not evil. Should it be that way, or should we have some specific enumerated rules that limit the executive authority? How much authority is obviously under debate. Checks and balances, anyone? Remeber that for checks and balances to work, the checks have to be relatively equal to the balances. If the power tips to far to one branch, the balance is upset, and our government, the way that our forefathers set it up, will not work properly.”
The executive branch doesn’t have unlimited authority… each branch has control of part of the government. The founding fathers understood that there was NO WAY IN HELL that you would ever get 500 people to agree to any single thing - so in a WAR you have to have a ‘COMMANDER IN CHIEF’ otherwise you wouldn’t be able to function. Wars are fluid and require quick decisions, you cannot get a quick decision out of a ‘bloviating bunch’ like the legilative branch - that is why the Constitution did not put them in charge of ‘fighting a war’. They can ‘defund it’ to put pressure on the President but they DO NOT, NOR WILL THEY EVER, CONTROL THE MILITARY BRANCHES - especially during a war.
As for ‘having some specific enumerated rules that limit the executive authority’ - Congress cannot legislate authority away from the President and for themselves… if you want to change the Constitution you have to do it by Amendment. Anything short of a Constitutional amendment is not valid in this case, especially if you ware wanting to restrict Presidential powers and increase Legislative powers.
February 7th, 2006 at 10:30 am
Youngstown Sheet & Tube Co. et al. v. Sawyer —
Bush wiretaps, Truman takes millions of dollars in private property and nationalizes the steel mills. History provides some good perspective.
Impeachment would be silly given the legal grey area that we are in.
February 7th, 2006 at 11:47 am
debsay,
I guess you are aware that the president does NOT have the authority to declare war? That belongs to Congress alone. Practically speaking does this matter? I don’t know, but tehcnically we are NOT at war right now because Congress did not officially declare it. Therefore, the president should not have access to his “war” powers.
Secondly, the military and the president, as their leader, are very free to fight a war in the way they believe to be best. But, you make it sound as though they can do literally whatever the hell they want. We both know that is not true. There are rules to follow, even if they come from international circles.
Third, the Constitution does not give the president unlimited authority to do anything. The Constitution is vague enough that amendments would not be necessary, and Congress absolutely could place limits on the president’s war powers without it being unconstitutional. Again, you make arguments as if the Constitution is crystal clear about all this, when it is NOT. You simply have no sources or facts that would support your EXTREME opinion.
Fourth, I have seen you comment about 25 times on the differences between Bush’s wiretapping and the Eschelon/Carnivore stuff. You are of course free to do whatever you want, but don’t YOU ever get tired of that argument?
Last - WOULD YOU BE MAKING THESE SAME ARGUMENTS IF KERRY WERE PRESIDENT RIGHT NOW????
Brian in MA - So, you do understand then, that if we decide in the upcoming months that the president can do whatever the hell he or she wants, that will apply to all presidents from now on? It’s not that it couldn’t be changed at some point (after everyone figures out what a bad idea it was - say in 20 to 50 years), but we would be stuck with it for a while.
February 7th, 2006 at 3:49 pm
Meredith,
Just because Congress didn’t use the words ‘Declare War’ doesn’t mean that it wasn’t authorized.
“To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force’.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Passed the Senate September 14, 2001. ”
PLEASE NOTICE SECTION 2, (b), (a)(1)…
I think that this is sufficient enough to show your intellectual dishonesty on this question…
“…But, you make it sound as though they can do literally whatever the hell they want. We both know that is not true. There are rules to follow, even if they come from international circles.”
When it comes to Foreign Intelligence and how best to fight a war, it is the Executive Branch’s perogative… that includes intercepting and decoding messages from your enemy… it has always been done and it will always be done…. your BDS is getting in the way of common sense.
“Third, the Constitution does not give the president unlimited authority to do anything. The Constitution is vague enough that amendments would not be necessary, and Congress absolutely could place limits on the president’s war powers without it being unconstitutional….”
There are several cases you can read:
United States v. Clay, 430 F.2d 165 (5th Cir. 1970)
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974),
United States v. Truong, 629 F.2d 908 (4th Cir. 1980),
United States v. United States District Court, 407 U.S. 297 (1972)
United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984),
In re: Sealed Case No. 02-001, decided in 2002 by the Foreign Intelligence Surveillance Court of Review which stated in part: The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
“Fourth, I have seen you comment about 25 times on the differences between Bush’s wiretapping and the Eschelon/Carnivore stuff. You are of course free to do whatever you want, but don’t YOU ever get tired of that argument?”
I’ll get tired of asking it when somebody actually responds to it…. what is the difference between Projects Echelon, Carnivore, and TIA with what NSA is doing now???? If there isn’t any difference why the bruhaha now?? Why after 3000 citizens were murdered do you suddenly get ‘nervous’ about executive powers???? why not before 3000 people were murdered???
“Last - WOULD YOU BE MAKING THESE SAME ARGUMENTS IF KERRY WERE PRESIDENT RIGHT NOW???? ”
YES I WOULD BE…. ESPECIALLY IF THERE WERE ‘IDIOTS’ THAT WANTED THE COMMONSENSE STEPS TAKEN BY THE ADMINISTRATION TO STOP!!!!! See the difference between us is that I’m not willing to see a bunch of Americans die because I want to score political points!!!!
February 7th, 2006 at 5:39 pm
Nobody is being obtuse debsay. You simply don’t have the facts straight. Here is the very long answer I gave you a few weeks ago about Echelon, Carnivore, etc.
Reprinted in full from the post about Osama Bin Laden. Obviously it may seem a little out of context here, but bear with me debsay.
You didn’t read it the first time so I hope you read it this time. ;-)
========
debsay, please read this whole thing. It took a while to put together. ;-)
First, concerning the ECHELON thing, read this…
Also, there’s been no evidence that Carnivore - which has since been abandoned for better commercial products made by private companies - has been misused by either Clinton or Bush.
In short, just because Clinton had the technology to do these things does not mean he actually did the things Bush is now accused of. And if you believe George Tenet, you should believe Clinton did nothing wrong. So that should give you some more context to this whole Echelon/Carnivore stuff.
For the last time, they did not do the same thing. The Clinton thing was regarding warrantless physical searches and Bush’s scandal is about warrantless wiretapping. The law even stated that they were two different things when Clinton had the physical search conducted. It wasn’t until later that the law changed to restrict warrantless physical searches. And when the law changed, so did the Clinton administration’s policies.
So, that argument should be moot. Sure, the right-wing will keep spreading the whole, “Well, Clinton did it too!”, but it’s not accurate.
Because Congress thought that this language would open the door for just the type of thing that Bush is now accused of, i.e. monitoring peace activists, etc.
Here’s what Tom Daschle said about it in December after the wiretapping story broke…
Whether or not you agree with Congress taking the words out is not the point. Obviously Bush wanted it in there for a reason. That’s the important point.
However, what if Clinton did do something wrong? Let’s just suppose for a second that happened. Debsay, it would still be ILLEGAL. And it certainly doesn’t excuse Bush’s actions. Two wrongs don’t make a right. You’re looking at this as if somehow partisanship equals illegality.
Also, I’ll glady say that most of this dissent you’re so unhappy about is both political AND genuine. Of course it’s political. People want things to change. They can feel genuine about that.
Getting back to your original point, whether or not a terrorist like OBL uses it for his own devices should be of little consideration to the dissenters. Democracy THRIVES on dissent. In fact, it’s why our system works. And it baffles me when all of these right-wingers talk about not supporting the war is hurting the troops and giving comfort to the enemy, when they know damn well how intellectually dishonest that argument is, and how it attacks the very foundation of our union.
Hope this has been helpful.
February 7th, 2006 at 6:59 pm
“For the last time, they did not do the same thing. The Clinton thing was regarding warrantless physical searches and Bush’s scandal is about warrantless wiretapping.”
I know, warrantless physical searches without probable cause is 50 times worse than listening to a phone conversation where one end is associated with Al Queida…. I have a MUCH HIGHER expectation of privacy when I am talking about my own person, or my vehicle, or my home (which is what Clinton wanted to use it for) than I do to any given conversation…..
‘It wasn’t until later that the law changed to restrict warrantless physical searches. And when the law changed, so did the Clinton administration’s policies.’
The fourth amendment has been in effect long before Clinton got into office… read it sometime. Clinton was claiming Executive privledge to do warrantless searches of peoples homes…. without any probable cause….. to search for weapons… a totally domestic issue!!!! I call bullshit, they are not the same thing and you know it!!! It is totally dishonest of you to even claim an even footing here… The president doesn’t have ‘inherent powers to search’ for domestic law enforcement issues - Bush has never claimed that…. foreign intelligence is a different matter, intercepting and decoding enemy messages while at war is a different matter….
“However, what if Clinton did do something wrong? Let’s just suppose for a second that happened. Debsay, it would still be ILLEGAL. And it certainly doesn’t excuse Bush’s actions. Two wrongs don’t make a right. You’re looking at this as if somehow partisanship equals illegality.”
No, I’M NOT, I looking at from a stand point of common sense…. I didn’t raise a fuss then either, why because I’m intelligent enough to know that it has to be done for national secuirty and foreign intelligence…. I’ll cry foul when they start using it to arrest and try people for domestic crimes with no relation to foreign intelligence.
I never raised a fuss about Echelon, Carnivore, and the TIA programs… never not once. Not when Clinton was president, not when Bush was president, not when Reagan was president. It is just completely assinine to think that a country isn’t gathering foreign intelligence… especially in a time when we had 3000 people murdered in less than 2 hours…
“Getting back to your original point, whether or not a terrorist like OBL uses it for his own devices should be of little consideration to the dissenters. Democracy THRIVES on dissent. In fact, it’s why our system works. And it baffles me when all of these right-wingers talk about not supporting the war is hurting the troops and giving comfort to the enemy, when they know damn well how intellectually dishonest that argument is, and how it attacks the very foundation of our union.”
There is a time and place for dissent, leaking national security secrets to the public to be published for the enemy during war time isn’t one of those times or places…. it is only common sense. That is why it is illegal to leak top secret information… and to do it during a war is called Treason…. that is also a crime. I hope that you get the ‘warm and fuzzy feeling’ when the enemy takes this information and circumvents the protections put in place… and kills lots of Americans!!! I’m sure you will…. because Democracy THRIVES on security leaks…. right???
How does stating what shoule be common sense ‘Attack the utter foundation of our Union’…. what utter bullshit!!! How does it attack the foundation of our Union…. is the Union going to fall apart because we point out that when people protest against the War and they get lots of publicity - that it encourages the enemy to hold on longer… they have a chance of winning…. duh… During Vietnam, not only did they protest the war but they also protested the soldiers and even physically attacked some of them…. but I’m sure that is the very definition of Demacracy in your world… isn’t it? Are you delusional enough to HONESTLY say that the protesters during the war, even though they were FINANCED by Communists didn’t have any impact on the war???? Can you make that bald face lie??? Ok, then if you are working towards anything but our victory… you are IN FACT helping the enemy. Pretending it isn’t so doesn’t change anything…. you can chant Democracy all you want… it doesn’t change anything.
The proper time and place to ‘dissent’ is within the governmental channels, or after the war is over. Never in the newspapers and never while we have soldiers fighting and dieing.
February 7th, 2006 at 10:42 pm
Wow debsay. Well, this discussion is obviously over.
However, I do have a couple more things to say. It’s becoming increasingly clear to me that you aren’t really interested in having a conversation. You simply want to fight. I gave you clear, point-by-point reasons why you were mistaken in both your assumptions and your “facts”, and you answer me with opinions and insults. You question my patriotism. You even go so far as to suggest I am willfully spreading lies on my own blog. In short, you just haven’t stepped over the line, you leapt over it.
I’ll leave it up to you if you want to continue commenting on this blog and my posts. I won’t ban you. But you’ll be hard pressed to actually get much of an explanation out of me anymore, because I really don’t think you want one.
February 8th, 2006 at 11:25 am
Debsay,
First, all my point was in the first place is that Congress alone has the power to declare war, and they have not done so against Iraq. I am completely aware that they authorized the use of force. It was a HUGE mistake to do so in my opinion.
Second, it is the executive branch’s prerogative to decide how best to fight wars, but again, you and I both know that they are not allowed to do whatever they want. There are limits. I’m not talking about anything specific (like warrantless wiretapping), I’m just trying to get you to back off of that and be reasonable in your claims. EVERYONE knows that Bush does not have carte blanche to fight the war on terror.
Third, the cases you cited do not stand for the proposition that you cite them for:
Clay - involved five taps; four of which were not pertinent to the defendant’s conviction (so the court did not address their legality), and one which was found to be legal because it was authorized by the attorney general for the purpose of obtaining foreign intelligence information. (the key being authorized)
Butenko - decided pre-FISA (as was Clay actually) under The Communications Act of 1934.
Troung - the court held: “evidence obtained pursuant to reasonable warrantless searches and surveillances of defendants prior to time that investigation became ‘primarily’ criminal investigation was admissible against defendants; however, evidence obtained through warrantless surveillance subsequent to that time was properly excluded”. The court placed important limitations on the executive’s ability to obtain warrantless wiretaps: “First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators . . . . Second, as the district court ruled, the executive should be excused from securing a warrant only when the surveillance is conducted “primarilyâ€Â? for foreign intelligence reasons. We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution. We thus reject the government’s assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.” - That last sentence was important. Third, “Even if a warrant is not required, the Fourth Amendment requires that the surveillance be “reasonable.â€Â? The reasonableness of the surveillance is determined by examining the circumstances of the particular case.”
Eastern District of Michigan - Did you read this case? The court held: “that the Omnibus Crime Control and Safe Streets Act does not constitute a grant of power to the President with respect to national security surveillances; and that electronic surveillance in domestic security matters requires an appropriate prior warrant procedure.” Also pre-FISA.
Duggan - acutally involved FISA; In this case, the court held that as long as the procedures contained in the FISA were followed, the Fourth Amendment is not violated. These procedures inlcude: “requir[ing] that the FISA Judge find probable cause to believe that the target is a foreign power or an agent of a foreign power, and that the place at which the electronic surveillance is to be directed is being used or is about to be used by a foreign power or an agent of a foreign power; and it requires him to find that the application meets the requirements of the Act. These requirements make it reasonable to dispense with a requirement that the FISA Judge find probable cause to believe that surveillance will in fact lead to the gathering of foreign intelligence information. Further, if the target is a United States person, the Act requires the FISA Judge to determine that the executive branch’s certifications pursuant to § 1804(a)(7) are not clearly erroneous in light of the application as a whole, and to find that the application properly proposes, as required by § 1801(h), to minimize the intrusion upon the target’s privacy.” The court was only worried about whether a warrant obtained with less than the Fourth Amendment standard, probable cause, was constitutional.
I guess if Bush wants to argue that FISA is unconstitutional because it attempts to circumvent his executive powers - he can be my guest, but it simply won’t work.
Fourth - I think Justin has explained the Echelon thing to you, but apparently you will not be moved. Fair enough - maybe agree to disagree, but there is no need to get nasty.
Last - you said, “YES I WOULD BE…. ESPECIALLY IF THERE WERE ‘IDIOTS’ THAT WANTED THE COMMONSENSE STEPS TAKEN BY THE ADMINISTRATION TO STOP!!!!! See the difference between us is that I’m not willing to see a bunch of Americans die because I want to score political points!!!!”
Sticks and stones . . . . I’m not trying to score political points. I’m just trying to have a debate. My stance on this issue, believe it or not, is a legal stance, which I have because of my experience in the area of constitutional law - nothing more. Perhaps you are the one who is flipping out, calling names and getting nasty because of political beliefs.