Wednesday, January 18, 2006

Presidential Power

To those who believe that President Bush is nothing more than a salivating powermonger, I say, "Look at history!" There are many presidents in our nation's past with such thoughts of absolute authority; President Bush pisses people off because he gets the job done. He has yet to be convicted of a single scandal (that's conviction in a court of law, not public opinion).

For results regarding current polling statistics, go here and click on the poll gallery link.

I have compiled quite a bit of information concerning Presidential Power. My hat's off to Hugh Hewitt, who's done an exhaustive search and produced some incredible results. Here are some links and quotes:

The MSM and The Authority of the President to Conduct Surveillance on Foreign Powers Communicating With Their American Agents.

by Hugh Hewitt

In from the Cold enjoyed my interview with Jonathan Alter, and is shocked by Alter's lack of basic knoweldge on the subject of the NSA program.

The kicker is that Alter is one of the better informed of the MSM journalists reporting and commenting on the NSA controversy.

The crucial case law and statutes aren't difficult stuff, though it takes time to assemble the materials and go through them. Powerline's John Hinderaker has done just that and posted it all here for the benefit of old media's lazy and blinkered reporters and commentators. Not that they will read it, of course, but it does mae it pretty hard for any reporter to claim ignorance of the basic case law connected to the controversy.

UPDATE: The Department of Justice has also laid out the relevant authorities. (HT: The Corner and Instapundit.)

Note that bloggers on the right are in a hurry to bring relevant authority to the attention of the audience. Why can't the MSM --who are paid to do this-- at least pretend to do its job.

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Presidential Power and the Surveillance of Foreign Powers Conspiring with United States Citizens

by Hugh Hewitt

Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.


"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."


That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court's interpretation of the president's authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.) The 1972 decision contains a colloquy from the Senate floor between Senators Hart, Holland, and McClellan on that illustrates the correct understanding of this crucial principle:


"Mr. HOLLAND. . . . The section [2511 (3)] from which the Senator [Hart] has read does not affirmatively give any power. . . . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. . . . We certainly do not grant him a thing.

"There is nothing affirmative in this statement.

"Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him.

"Mr. HOLLAND. The Senator is correct.

"Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so.

"Mr. McCLELLAN. Even though intended, we could not do so.

"Mr. HART. . . . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now.

"In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511 (3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague . . . . Section 2511 (3) merely says that if the President has such a power, then its exercise is in no way affected by title III."[Footnote 7] (Emphasis supplied.)


The first question is the scope of the president's authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens. Apparently Congressional critics of the action do not believe it. There is no definitive Supreme Court precedent on the question, and the Congress cannot define the answer even if it wished to. (Examine every commentary on the issue to see if this candid admission is made. If not, then the writer is not being honest about the central issue in the debate, or is ill-informed.)

If Hillary wants to run in 2008 on the pledge that she will not conduct warrantless surveillance of foreign powers plotting against the United States when those plots involve an American citizen, she has that right. If the Senate Democrats, already committed to blinding American intelligence in the GWOT by allowing the Patriot Act to lapse, want to make the issue of warrantless surveillance of foreign powers plotting against the United States when those plots involve American citizens, I think every GOP candidate ought to gladly take up that challenge.

I am reproducing Justice Jackson's concurrence in the extended entry for the convenience of the reader, as well as the opinion from the 1972 decision. At the conclusion of that Justice Jackson's opinion, he wrote a summary applicable to the current assertion of presidential authority:

The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights.

Continue reading "Presidential Power and the Surveillance of Foreign Powers Conspiring with United States Citizens".


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Presidential Power, Part II

by Hugh Hewitt

Senator Russ Feingold displays either his lack of basic knowledge about the Constitution or his willingness to pose for the cameras, or his hypocrisy, or all of the above:


"There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution."


Questions for Feingold:

Does the Constitution give the president any powers?

What are they?

Do they include the power to stop imminent attacks on the United States?

Does the Congress have to approve the president's action to prevent imminent attacks?

Does the power to stop imminent attacks also include the power to learn of imminent attacks?

Etc. Etc.

Feingold wants to be president, btw. As does Hillary. What's Hillary think of the inherent powers of the presidency?

Here is Feingold on September 14, 2001:


Like any legislation, this resolution is not perfect. I have some concern that readers may misinterpret the preamble language that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism as a new grant of power; rather it is merely a statement that the President has existing constitutional powers. I am gratified that in the body of this resolution, it does not contain a broad grant of powers, but is appropriately limited to those entities involved in the attacks that occurred on September 11. And I am particularly gratified that this resolution explicitly abides by and invokes the War Powers Resolution.


So Feingold of December of 2005 is dismissive of Feingold of September, 2001? What a fraud.


In 1999, the ACLU argued that President Clinton's actions concerning Kosovo violated the Constitution. Other scholars took the position that the Constitution gave Clinton all the authority he needed to embark upon the campaign in Kosovo. Here's an abstract of a John Woo article on that debate. Whatever one believes about Kosovo, no one can seriously argue that the power to send Americans into combat is less significant than the power to conduct surveillance on Americans who are plotting to attack the U.S.


The powers of the president concerning war and as Commander-in-Chief do not change upon the Democrat leaving and the Republican entering office.


Too bad almost none of the big name television anchors know a whit about the Constitution or the particulars of this debate. If they did, they could ask Russ Feingold, Chuck Schumer and the rest of the Ahab Democrats some very telling questions.


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Presidential Power, Part III

by Hugh Hewitt

The collapse of the Democratic Party's credibility on issues of national security is accelerating, and none of the senior leadership appears to be aware of how they presenting themselves and their party to the party. They are asserting that the president does not have the authority to conduct warrantless surveillance of Americans in this country communicating with Al Qaeda operatives abroad. They are also asserting that they would rather the Patriot Act lapse than accept the compromise supported by majorities in both chambers and the president.

Russ Feingold and Carl Levin are leading the braying, and I hope they will propose an amendment of some sort specifying their position on the warrantless surveillance and that the House will take up a similar proposal. It is vitally important that the record be crystal clear about the left's view of presidential power.

The Senate Democrats could even propose a Constituional Amendment outlining their absurd view. The American people need extended exposure to the fecklessness of the Democrats when it comes to national security. The party has become so deeply infected by Michael Moore/Howard Dean/Nancy Pelosi defeatism that it has truly lost any sense of where the American public stands on the issue of defending the country against devastating terrorist attacks.

"We will not tolerate a president who believes that he is the sole decision-maker when it comes to the policies that this country should have in the war against terror and the policies we should have to protect the rights of completely innocent Americans," Feingold thundered today. He should back up his shrill histrionics with legilsative proposals. They will be defeated, because his view of the Constitution is an extreme one, and one which will never muster even close to majoritarian support in the Congress, much less enough to override a certain presidential veto, or the onerous process of actually amending the Constitution to reflect his self-destructive understanding of presidential power.

But he should try. If he is other than a poser, he will.

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Presidential Power, Part IV

by Hugh Hewitt

I yield the balance of my time to Orin Kerr, whose must-read analysis begins:


Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument -- if, I think in the end, an unpersuasive one -- that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.


When you have finished with Professor Kerr's legal analysis, click over to John McIntyre's political analysis at RealClearPolitics.com, a key portion of which reads:

First, the Democrats still do not grasp that foreign affairs and national security issues are their vulnerabilities, not their strengths. All of the drumbeat about Iraq, spying, and torture that the left thinks is so damaging to the White House are actually positives for the President and Republicans. Apparently, Democrats still have not fully grasped that the public has profound and long-standing concerns about their ability to defend the nation. As long as national security related issues are front page news, the Democrats are operating at a structural political disadvantage. Perhaps the intensity of their left wing base and the overwhelmingly liberal press corps produces a disorientation among Democratic politicians and prevents a more realistic analysis of where the country’s true pulse lies on these issues.

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Presidential Power, Part V

by Hugh Hewitt

The president and the attorney general have cited the Authorization for Use of Military Force, 115 Stat. 224, passed in the immediate aftermath of the attacks of 9/11, as providing additional authority for the NSA surveillance of Americans in contact with al Qaeda operating abroad. Carl Levin and Russ Feingold, falling over each other to display constitutional ignorance, say they cannot find anything in the AUMF to support such an assertion.


First, Senator Feingold forgets his own statement from September 14, 2001:


Like any legislation, this resolution is not perfect. I have some concern that readers may misinterpret the preamble language that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism as a new grant of power; rather it is merely a statement that the President has existing constitutional powers. I am gratified that in the body of this resolution, it does not contain a broad grant of powers, but is appropriately limited to those entities involved in the attacks that occurred on September 11.


Much more important than Feingold's admission against interest, though, is the SCOTUS opinion in Hamdi, which displays the sort of analysis of AUMF that appears to be part of the Administration's reasoning on this point:

There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.


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Presidential Power, Part VI

by Hugh Hewitt

Today's Wall Street Journal ediorial, "Thank You for Wiretapping," scolds South Carolina's Lindsey Graham for not doing his homework before appearing on the Sunday shows. It is a legitimate criticism, but one that should be applied as well to scores of MSM scribblers and talkers who simply refuse to ask any of the Defeatocrats calling for investigations and branding the program as illegal about either the Keith case or In Re: Sealed Case. From the Journal's editorial:

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that, "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."

Here is the link to the opinion in In re Sealed Case.


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Presidential Power, Part VII

by Hugh Hewitt

University of Chicago Law School Professor Cass Sunstein backs up the Adminsitration's claim athat the AUMF buttresses the inherent power of the president in a time of war to conduct surveillance of foreign powers communicating with their agents in America who are American citizens.


And Powerline has a series of important posts as well.


See also New Sisyphus.



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The Department of Justice Points and Authorities

Powerline: "On the Legality of the NSA Electronic Intercept Program"


Some light reading...so sit back, light the candle, and expand your brain!

Blogomeister Fool

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