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Excellent post. Now what are we, and/or congress going to do about it?
Amazing how the Constitution becomes a "living document" once the GOP gains power.
Posts like this are CRUCIAL in keeping this issue alive. We have to keep making CLEAR that Bush broke the law. Honestly, I have learned more from Glenn's blog and a few others than all of the newspapers, TVs and magazines combined.
The Administration's only hope is to confuse things. We need to keep making clear that Bush BROKE THE LAW and claims the right to do so. Eventually, Americans will understand this and not allow this to go on!!!!
First off, I've discovered Glenn's blog in the past few days (probably through this one) and have been very impressed. I am one of those "disillusioned conservatives," and I would very much prefer gridlock to the status quo.
This post belongs in the file of "Reasons Why George W. Bush Is Anything but Conservative". It's getting to be a pretty big file.
It's all reminiscent of the legal proceedings in 2000 that crowned Bushchev our new king. Wasn't it amusing how the wingers, including all of their conservative denizens on the High Court, suddenly transformed into great champions of equal protection?
Great post, Glenn. Too bad Democrats aren't being nearly as clear on this issue as you are. I fear that things have gotten clouded past the point of no return on this.
Great find on the Olson brief Glenn.
That is game, set, match for all but the President as King argument.
Thank you for the well-documented and super lucid explanation of the specious legal arguments we lay folk have been suspecting were a crock but didn't have the case law and theoretical background to back up. Your post deserves publication in a major outlet.
On the more prosaic side ... this kind of hypocritical legerdemain is nothing new for this administration: they are supposed to be for fiscal restraint, too: yet we have out-of-control spending on pork barrel projects and deficits that boggle the imagination. They claimed to be for "restoring honor and dignity" to the White House, and yet have presented the public with nothing but lies and incompetence, as well as ethical violations up the wazoo. They claim to support the military but refuse to provide our soldiers with the proper equipment and continue to cut veterans' benefits. Well, no need to preach to the choir here.
Their bogus legal arguments are nothing more than another case of making it up as they go along, especially when they've been caught with their hands in the jar.
I remember driving in the car with my then-15-year-old son during the run-up to the 2000 election, and on the radio we heard Bush state that "the legislative branch makes the laws and the executive branch interprets the laws." My son burst out in hysterical laughter at what was obviously this moron's incomplete understanding of even the most basic functions of government. Little did we know he really meant that. (See also the signing codicils he's attached to many bills, including the recent McCain anti-torture legislation).
The law only pertains to niggers who hold up seven-eleven's. Members of the bush crime family? They are immune from following the constitution. It's in the bible.
For all their faults, I never would have believed that Republicans were such abject, sniveling yes-men. If this is the Daddy Party. . .
When the administration first trotted out the argument that Article II gave the president the power to BREAK THE LAW, I went and read it again. I found, at least in my reading, no explicit or implicit authority to BREAK THE LAW, nor anything remotely close to the issue at hand. I've been meaning to ask if there was something that I missed, but according to Glenn, I did not miss anything.
Thanks for clearing that up.
The little tools at CNN managed to open a segment with "The Commander-in-Chief" because he was speaking at the Pentagon.
He was giving his views on 2006. Yeah, that takes a lot of commanding.
.
to expect Bush to act in any principled manner is to expect way too much. Let me repeat: "I do what I want to do when I want to do it" is Bush's sole operative principle. Also has been, always will be.
I am getting weary of that title...Commander-in-Chief. He is Commander-in-Chief of the military, not the country. Criminy, bit of a difference there.
Hello spoocks and paranoids of the world, hello holy warrios of the world, please wage the dog!
Another Nick Berg elsewhere?
Huh?
I like "wage the dog", though.
Look, it's quite simple. Since 9/11/01, every one of us has been on Double Secret Probation. That gives the president the authority to do anything he wants, short of a toga party.
'kay?
Here's how it will go down:
Eventually, Bush will be told that he can't do that anymore. He'll say, "okay, but you're making a big mistake." The press will laud him again for "compromising" on this issue. Then Bush will still spy on people, anyway.
The Republican Congress will sit on their hands, while one or two Democrats will softly "raise strong objections" to Bush's illegal actions.
The media will move on to the next story and the majority of the American people will find some new reality show or celebrity news story/scandal to focus their attention on.
Do the Dems have a position on the Abramoff scandals?
I have not seem many Dems either quoted in the papers or on TV.
Do they have a messaging position an talking points on this or is their plan to be invisible and allow the Rovian points of "equal opportunity dispenser" to remain unchallenged?
Just curious if anyone here knows their strategy.
You need to look at the "vesting clause" and the arguments about a "unitary executive" to understand how conservative legal scholars are reading these powers as "original" to the consitution.
The scholarships may be shoddy (some of it's pretty lame if you ask me), but it does exist.
Well stated Gleen Greenwald.
The unspoken thing here is that the president and his entire staff knew full well he was in complete violation, and that this violation was for the sole purpose of misusing authority. The exucutive has demonstrated nakedly criminal behavior which demands at the minimum impeachment for both the president and the vice-president, who were clearly directly involved in this whole mess.
It is now the job of the media to lay the facts clearly on the table for the segment of the public not yet engaged, while the Congress publically investigates.
Will Cheney resign? I think there will be very significant detrimental consequences to his person if he does not. We have never seen an executive in the oval office walked out in hand-cuffs but given Cheney's currently dangerous level of unreality this may be a distinct possibility.
Extra-constitutional contortions aside, the Bushites shamelessly Big Lied this nation into waging war.
What else does ayone truly need to know when weighing any arguement they may choose to make, about anything.
The Bushites are the mortal enemies of the American Republic. They must be destroyed, if the Republic is to survive.
All Hail King George! He knows way more than us about that centuries old Constitution thingymabob because he is real smart and stuff.
The saddest thing is that for many people these discussions of the legality of the warrantless surveillance are simply nitpicking wastes of time. An example: in my local paper, the local Republican big wig said that he thought the president was just doing what he needed to do to keep people from getting blown up like they get blown up in the middle east and Iraq and London. Then he went on to say that the big thing is to feel safe when we go shopping. Really, that's what he said. And I'm afraid that many many Americans would nod their heads in agreement with this.
The truth is that far too many Americans would rather not know. All our talk about transparency in government, etc etc etc just makes them angry and uncomfortable. What do they need to know, anyhow? Especially if knowing more means being less certain. That's not a bottom line that Mr. and Mrs. Support Our Troops want to come up against.
He's commander in chief of the military, yes.
Hey I wonder if he'd like to impose martial law for "security purposes".
I actually read something from the Pentagon about that a few months back.
Something along the lines of declaring martial law in response to a terror attack. Well ... I mean, where is this terror attack going to come from?
Another guy who used to work for with the CIA?
I can hear Bush and Cheny saying (again and again)
"If we have to follow the rule of law, the terrorists win."
Kudos to Carpetbagger
Thanks Glen, really excellent work. The arguments are getting honed to a fine point by such brilliant bloggers and I am so grateful.
I love this ... I don't think anyone estimated the power of blogging at this level.
Excellent post. Clear. Simple.
Keep up the good work.
It all depends on what the meaning of execute is; G. W. Caesar learned all he knows about executing as governor of Texas, so he's going about the task of faithfully executing the laws just as he faithfully executed the death row inmates.
callimaco raises a good point.
as much as i dread centralized authority (especially as it's currently embodied) seems to me there's a lot of wiggle room in the way the constitution was written.
maybe i'm not understanding plenary authority, but ...
haven't certain laws as applied been considered possibly "unconstitutional" in limiting the authority of the president? (like the War Powers Resolution) might this be argued in the case of FISA?
the SCOTUS has generally given the POTUS a pass because of plenary authority of article II. i think when the administration's legal wonks offer AUMF, they're vulnerable (despite hamdi) on grounds like "amended by implication". its clear that legislative intent is against them. but the whole statutory argument weakens in the silence on article II and the executive's need for foreign intelligence, especially if it passes the "primary purposes" test. we still don't know the nature of the NSA program specifics, so it's hard to tell.
anyway, i might be all wet, as i'm just learning this stuff (thank you blog citizens) and change my mind every day.
What if it was a creeping coup?
http://nocasa.blogspot.com/2006/
...tion.html#links
Pardon this bit of blog harlotry, but we've been researching and writing on this issue at ePluribus for some months. I think everyone ought to take a good look at the underpinnings of the Bush administration's claims to "plenary" presidential war powers.
In Smoke, Mirrors and War Powers, we outline the Bush administration claims, what the Constitution actually says, what the War Powers Act of 1973 says, and how the AUMF played into the "Imperial Presidency." We also illustrate how the Bush admin has already used the AUMF to cover any and all sins they commit, and how the courts have already upheld the admin's position, specifically in Hamdi v. Rumsfeld.
The Three Ring Power Circus, we review some of this ground and illustrate how and why both the legislature and the courts have themselves in a bind when it comes to standing up to the executive branch.
Best,
Jeff
Excellent, excellent post. "It's the law, stupid!" must become the mantra. It can win us 2006 and beyond.
It's not Osama Bin Laden who might kick down my door in the night. I have always been taught that what was special about the United States was that we were a nation of laws instead of a nation of men. After seeing the current list of Bush's recess appointments and hearing his claims of imperial power once too often, I humbly offer the 10th amendment of the bill of rights - Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
You right-wing bastards, from here is where we get our right to privacy, our right to pain-relieving drugs and our fairness doctrine, among others. I've had my fill of your bullshit.
I have a unitary theory too.
It comes from Article I of the Constitution:
"All legislative power shall be vested in a Congress."
The EXECTUIVE unitary theory has nothing at all to do with it.
jeff huber:
there's the "war powers act" (1917) and then there's the "war powers resolution" (1973). sorry, a pet peeve. on your page you note: "The ’73 War Powers Act was reasonably effective at placing war powers back in the legislature where the Constitution intended them to be." reasonably effective? presidents on both sides have ignored it for the most part. also, isn't section 1544 (c) unconstitutional, because it creates a legislative veto?
i guess i thought war powers lie both with the congress and the executive. i mean, since when did "commander-in-chief" not mean a war power? war is both a matter of "declaring" and "making", and is less a matter of separated powers than linked powers. of the hundreds of times in this country's history, of the hundreds of uses of the military in armed conflicts and battles, how many times have we declared war, maybe half a dozen? and though congress supposedly has power of the purse over the president, it appears to have abdicated any real authority wrt to using it as a brake on the exec's war-making powers.
seems to me that's the reality, though i share your sentiments if not your analysis, and fear for the corrosive growth of power in one man.
the hopes and adjurations of jefferson apply:
"In questions of power let no more be said of confidence in man but bind him down from mischief by the chains of the Constitution".
also, i think jefferson would have appreciated this rose bowl game!
Re: Wage the dog. Congress may have power to declare wage, but only the President with his unitary executive power may wage the dog.
Indeed as Commander in Chief, only the President may determine whom the waged dog may bite.
Makes as much sense as any other argument by people who apply royal arguments to a Constitution that was written after a Declaration of Independence and a War (or is it wage) of Independence against . . . a king. Oy.
Great analysis, one that could be applied to just about everything the GOP has done since seizing power. It's been obvious since their little bout of French post-modernism in Florida 2000 ("What is a voter intent, anyway? How can we know what a ballot really means?" "State's rights? Federalism? Never heard of it") that every epistemological and juridical principle the GOP has professed for decades was nothing but feed for the rubes.
But I have to take exception to the implication that what the Bushies are pursuing now represents anything resembling "judicial activism" ("the very legal theories which advocates of "judicial restraint" have spent the last two decades ridiculing and attacking.") is wrong. Even so-called "judicial activism" grounded itself in precedent and respect for legal reasoning. It was also informed by a deep humanism and desire to enlarge, rather than restrict individual liberties. Nothing like that is at work here. Please don't give the wingnuts the chance to argue that we just don't like the shoe being on the other foot.
This isn't the same shoe; it's more like a jackboot.
Very good post. Law and founders' policy. Very good.
Great post!! You and your readers need to distribute this to your congressional leaders and to your local media, your mayor, your local prosecutor and to everybody else. It is this type of reasoned arguement that makes America great and causes the rest of the world (and I am a part of that outside world) to have immense respect for America and her people. Your current leaders are a disgrace.
The only operative legal theory on the right is that laid out by Thrasymachus in Plato's Republic, that 'justice' is just whatever works to the advantage of the strong.
Suffice it to say, if the very words being used by the Republicans to defend this were instead being used by those in the Hillary Clinton administration, these very Republicans would howl like hell's own harpies. The Republicans want their Republican President to have unlimited power and any Democratic President to have absolutely none. Tough. Fucking. Shit. This kind of criminally insane behavior should be called what it is and the Republicans desperately require having their chronic hypocrisy pointed out to them relentlessly....in the hope that eventually, somehow, they'll begin to catch a glimmer of the truth.
I wish the various Bush-fellaters would answer this one simple, serious, non-rhetorical question:
What exactly would Bush have to do to make you think he deserves impeachment?
they are employing on George Bush's behalf the very legal theories which advocates of "judicial restraint" have spent the last two decades ridiculing and attacking.
I've been saying for literally 25 years that the right-wing 'strict constructionists' are full of shit.
And now it's so plain to see. Where the fuck is that tool Robert Bork on this one? Shouldn't he be screaming from the rooftops how the Republic is in mortal danger from this Constitutional re-interpretation?
I get so fucking tired of saying, "I told you so."
You are obviously not well versed in secret constitutional law.
The constitution is the law of the land. What is not as well known is that on the original (the real one!) constitution there are some generally unknown and secret provisions for granting the president unlimited powers. Hint: they are written on the back! And maybe in invisible ink.
No one is allowed to see the secret back of the constitution except the president and those that he allows. Certainly not the congress and not the courts. They just have to take his word for it -- as the secret constitution itself requires.
The president is simply exercising these secret, legal powers. What's the problem?
It's just a goddamned piece of paper, right?
Conservatives don't have legal theories, they have legal rationalizations.
Remember how devoted they were to federalism? They really liked it when it enabled them to oppress blacks and avoid environmental regulation etc. But they immediately threw federalism out the window when they needed to install Bush as president in 2000.
They don't give a shit about federalism, judicial activism, original intent or anything other than power to exercise their preferences and impose them on others. Full stop.
You know, I've been pondering this problem of governance for some years.
In the case of America, I have to agree with some of the conspiracy theorists out there (please don't treat this term like a dirty word ... we NEED conspiracy theorists. We NEED to throw the radical ideas out there so that we can pull our perceptions back toward the middle where reality actually sits) in that:
a) Either Bush is a figurehead fall man for the neoconservative movement (Cheney, Wolfowitz, Rove, etc)
and/or
b) The Left-Right paradigm you all enjoy is bullshit. The republicans and democrats have become more alike than different. Why? Because it's the global elite that pull the strings, not political parties. It's the people who own things who rule people. It's the American royalty coming out from hiding and actually claiming their power.
And a good number of them are occultists by the way.
Look up "skull and bones" and "bohemian grove".
The Fool:
You're making an unwarranted generalization from the present crop of "conservatives".
Glenn Greenwald write that, "The clarity of this law is why the Administration is reduced to peddling legal theories which, no matter how they are sliced, amount to a claim that George Bush has the right to break the law."
Although the rest of the essay is fine, this is the one sentence that contains an important, actionable recommendation.
Many of our laws are too complicated. Wealthy or powerful people are able to lawyer themselves exemptions for what would be crimes if committed by the poor. Simple laws lower the advantages that the wealthy have in court.
Incredible post. The legal reasoning is clear and powerful. And the hypocrisy of conservatives is no less stunning.
Wow, you guys have strong evidence against Bush. However, I will base my final conclusions on what the FISA law itself says:
http://www.law.cornell.edu/
uscod...1_50_10_36.html
"You right-wing bastards, from here is where we get our right to privacy, our right to pain-relieving drugs and our fairness doctrine, among others. I've had my fill of your bullshit."
darms, the 10th Amendment is only a check against big government, in which the federal government is restricted to its delegated powers. If you are looking for unenumerated rights such as privacy, they are protected under the 9th Amendment, and a right to drugs is more of an entitlement, than a right. As for the Fairness Doctrine, it is a violation of the First Amendment, since it regulates free speech, as was the Alien & Sedition Acts.
"What exactly would Bush have to do to make you think he deserves impeachment?"
Let's see what the Guarantee Clause (Article IV, §4) of the Constitution says:
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
I wonder if "Invasion", along with an invasion conducted by a foreign army, can also mean an unarmed invasion by illegal immigrants en masse. I'm a conservative, but I wouldn't mind seeing Bush going down for that one, for failing to protect our borders. Family values may not stop at the Rio Grande, but that's also where homeland security begins.
According to Indiana U. and elsewhere, the 1973 war powers thingie was also known as an "act."
http://www.cs.indiana.edu/statec...aft/
warpow.html
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