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An Excellent One-Liner Criticizing The Bush Administration's View of Executive Power:

Via Mark Kleiman: "The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?"

Whatever you think of the underlying sentiment, that's an excellent one-liner!

SP:
Hard to argue with that. It's not that I can't see certain legal aguments that can be justified with precedent, case law, things like that. It's that it is very obvious that some in the Cheney camp simply don't care about these things. They don't seem to care that we're going to be dealing with these questions down the road as well.
3.25.2006 2:52am
CTD (mail):
"Why did the founding fathers hate America?"
3.25.2006 3:31am
Grand CRU (mail):
Actually, the Founding Fathers offered George Washington the crown and he declined it. So the Founding Fathers did trust George Washington with more power than Bush is now said to be illegitmately exercising.
3.25.2006 4:32am
Wintermute (mail) (www):
Readers of this thread might enjoy my bit of research, The Man Who Wouldn't Be King.
3.25.2006 5:02am
Positive Dennis:
Actually it was also the George Washington did not trust George Washington. As the title suggested above suggests George could have been King if he had wanted.

Positive Dennis
3.25.2006 7:00am
johnt (mail):
So who has unlimited power? Not the current guy in the WH concerning whom the Times repeatedly tells us has trouble with both Congress and within his own party. A sentence may be rhetorically telling but factual nonsense this quoted one qualifies. As to Washington as king; the constitution specifically prohibits the granting of titles so whatever Founders had a crown in mind for GW they would have to have made up a new name. Hamilton was probably the biggest admirer of the British system { throw in Gouvernor Morris on that} and I would think that apart from the Cincinnati Society and a few at the Convention the idea of a Kingship hadn't much support. In any case a quick review of Article II might clarify matters.
3.25.2006 7:22am
Federal Dog:
johnt is obviously correct. Claiming that Bush (or any other government official) has "unlimited power" is not merely ignorant -- it is openly delusional. I wish people would learn to exercise minimal control over their own hysterical emotions.
3.25.2006 7:31am
Bill Woolsey (mail):
Did the _all_ the "founding fathers" want George Washington to be King? Do we have money quotes by
Jefferson? Paine? Madison?

More importantly, how many wanted George Washington
to be an absolute monarch?

Did they want this new King of the U.S. to have the
authority claimed by Louis XIV? Did they want him
to have more or less authority than George III claimed?

Perhaps they had in mind something like replacing Charles II with William and Mary. A king with excessively absolutist tendencies with one who would follow the ancient constitution of the British people--in particular--respecting the traditional rights and liberties of an Englishman.

Unfortunately, the Cheney/Bush regime is moving in the direction of Charles II. Though a bit more like Napoleon or a traditional Latin American dictator, since
our George II wasn't born King at all.
3.25.2006 7:52am
Frank Drackmann (mail):
I think there is more common sense in the Atlanta Braves infield than in the entire Senate and House combined. I would'nt give Chipper Jones absolute power either though.
3.25.2006 8:01am
CEB:
Who is asking us to trust George W. Bush with unlimited power? This is one of the silliest straw-man arguments I've heard in a while.
3.25.2006 8:14am
Paul doson (mail) (www):
I totally agree with you. xcellent blog and amalgam of thoughts.
3.25.2006 8:28am
anonymous (mail):
Here's a one-liner: "What the qwerty mklhiihj mmmffff!" Hey, it's a makes as much sense as Kleiman's hysterical statement. And, it's a one-liner, right?

Seriously, Kleiman is being a nutter, and you're being a nutter-enabler for finding some redeemable value in his mutterings.

Times must be hard inside that academic bubble recently.
3.25.2006 8:34am
Tom Anger (mail) (www):
Anonymous has nailed it.
3.25.2006 8:55am
Medis:
As an aside, I always find it interesting that pro-Administration folks usually disclaim any desire for the President to have "unlimited" power, but when asked for specific limiting principles on their presidential power arguments, they generally refuse to articulate any. Indeed, the DOJ is continuing to refuse to discuss the extension of their surveillance arguments to other issues, such a purely domestic surveillance. The excuse for this refusal to provide limiting principles is usually something along the lines that they only want to talk about the issue at hand. But what exactly is the difference between claiming unlimited power and claiming power for which you refuse to articulate any limits?

Anyway, it would probably be less controversial to say that George Bush wants "unilateral" power, in the sense that he does not want to have to deal with limits being placed on his exercises of power by any other branch of government. And that much is undeniably an implication of all arguments to the effect that Congress and the courts cannot interfere in any way with the President's exercise of certain powers.

And it is just as obvious that the Framers did not trust George Washington, or any other single man, with unilateral power. So, it is equally valid to ask why we should trust George Bush with such unilateral power.
3.25.2006 8:56am
Hovsep Joseph (mail) (www):
Anonymous, The statement is from Sean Maloney who just started running ads featuring the above-referenced line in promoting his candidacy for NYS AG.

Johnt &FedDog, You have to consider the context in which the term "unlimited power" is used. Maloney is specifically referring to the domestic spying operation. Whether you think its good policy or not, the Bush Administration's defense is essentially that the President has inherent power to take actions like this to protect national security regardless of whether Congress approves or not. They haven't offered a very clear "limit" on his power in this situation and to many concerned about civil liberties, there isn't an obvious limit on what might be done in the name of protecting national security.
3.25.2006 8:58am
zzx375:
I submit that the thing known as an 'executive order' makes it possible for a President to authorize such actions as those of the NSA monitoring (wiretapping went out with the buggy whip!)of overseas calls. BTW, there is no explicit provision for an executive order in the Constitution, but it grew out of precedent set a number of years ago.

Guess which president issued the first executive order? George Washingon.

All of that being said, if I were in Bush's shoes, I would do the same thing. If people bent on the destruction of any aspect of the US are phoning home to the Middle East or wherever, then let the monitoring begin!
3.25.2006 10:09am
Huh:
Please show some restraint in your criticisms of a "one-liner." It's not meant to be logically air-tight. A one-liner is supposed to be succinct and pithy. A summary of ideas and proposititions that could be fashioned into a more sturdy essay, but which would lose some of its force in the process.

If you have to explain a joke, it's not funny anymore. Same is true for a biting one-liner. Remember, "Don't blame me, I voted for Bush"? Any close examination of that sentiment reveals several layers of idiocy. But for many Clinton bashers, it was the most efficient way of expressing their frustration with Clinton and their feeling that his administration would spell doom for America.

Of course, now that popular bumper sticker can be read as an earnest and confused plea from an entirely blameworthy electorate.
3.25.2006 10:18am
AppSocRes (mail):
The Founding Fathers didn't trust my great-great-great-great-grandfather with unlimited power. Why should we trust me with it? -- Mark is an excellent rhetorician, a very smart fellow, and a yellow dog Democrat. When it comes to partisan sniping, he often creates great sound bites, like this one, that don't withstand even basic logical scrutiny
3.25.2006 10:21am
A. Zarkov (mail):
It is a good one liner. And like most one-liners it's meant to be memorable more than true. Washington not only didn't want to be king, he didn't even really want to be president. In fact he hated being president.

As an aside, I went to Mt. Vernon recently and I was impressed at how austere his main house was. For one of the richest men in the colonies his house wasn't very large or fancy. Of course we have to judge it by what was available at the time. Nevertheless, it's not as nice as Jefferson's house. No indoor plumbing, no central heating (or cooling) and of course no electricity or telephone, no refrigeration or motors to power washing machines. Yet by the 1920s all this was commonplace in most middle class homes.
3.25.2006 10:35am
tefta (mail):
Jokes are funny because they contain an element of truth. That's why this one line isn't a one liner.
3.25.2006 10:48am
Justin Kee (mail):
Reminds me of a joke...


CRAWFORD, TEXAS -- A tragic fire on Sunday destroyed the personal library of President George W. Bush. Both of his books have been lost.

A presidential spokesman said the president was devastated, as he had not finished coloring the second one.
3.25.2006 10:51am
SteveMG (mail):
Republican Bumpersticker et al., Petitioners v. Democrat Bumpersticker et al.

"GWB isn't doing anything that FDR didn't (and much less)"

"Democrats trusted FDR with much more "unlimited power". Why not GWB with much less "unlimited power"?"

"We gave Franklin the tools to win the war; why not George?"

"We let George Washington spy on our enemies, why can't we let George Bush do it?

SMG
3.25.2006 10:57am
Justin (mail):
Bush < FDR
Zaquari < Hitler
3.25.2006 11:03am
Justin (mail):
Not to mention that the primary tool that FDR used to win the war was THE DRAFT. That and a 90% tax rate on the highest bracket. I'm all for both of those.
3.25.2006 11:05am
abb3w:
One reason Monticello is so much more impressive is that TJ went heavily into debt and lived beyond his means; most of his estate went to the paying of his debts.
3.25.2006 11:06am
Ken Willis (mail):
It's not a good one liner if its implied message is false; to say the timid and halting presidency of GWB is exercising unlimited power is absurd.
3.25.2006 11:24am
Medis:
I'm not sure people visiting a blog which leans libertarian/conservative are going to find comparisons to FDR particularly comforting.

But they are undoubtedly apt. If we define a scale ranging from Reagan to Roosevelt, it has become more and more obvious over time that Bush is actually far closer to the Roosevelt end of that scale. Which, of course, may be part of the explanation for his steady decline in the polls.
3.25.2006 11:27am
Ross Levatter (mail):
The psychological answer to the one liner is as follows: Americans in Washington's time were much less dependent on their government than we today are dependent on our government. As a general rule, it is very comforting to believe, even if against all evidence, that you can trust people who have great control over you.

As to those expending extreme effort to dissect and defeat a one-liner, the psychological answer is: denial.
3.25.2006 11:29am
Cornellian (mail):
Seriously, Kleiman is being a nutter, and you're being a nutter-enabler for finding some redeemable value in his mutterings.

It's not Kleinman's line, he's quoting some guy who's running for NY A.G.

Anyway it's a slogan, not an analysis. Slogans are there to make a point, often through exaggeration, and in this regard the slogan is successful.

And in related news:

"When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers."

The full story (from which the above is an excerpt) can be found at:

http://www.boston.com/news/nation/washington
/articles/2006/03/24/bush_shuns_patriot_act_requirement/
3.25.2006 11:45am
SteveMG (mail):
Hmm, it seems to me that the best (if not only appropriate) response to a one liner is a counter one liner and not some complex statement detailing or outling where the original one liner is wrong or misleading.

If one needs to go into great detail as to why a bumpersticker statement is erroneous, then you've lost the debate (such as it is).

As Madison might have said, let fiction counter fiction.

SMG
3.25.2006 11:46am
byomtov (mail):
Who is asking us to trust George W. Bush with unlimited power?

George W. Bush
3.25.2006 11:48am
Ray (mail):
President Bush makes me nervous (not vetoing the McVain/Feingold travesty confirmed that anxiety forever) but it always seems that most people who dis him from the context of the Constitution or the founding principals, are also the same people who don't really value such things at all.
3.25.2006 11:52am
Medis:
SMG,

I agree. And I think your variations on "Bush: The GOP's FDR!" are quite illuminating.

Although perhaps "The GOP's Lyndon Johnson!" would be even better.
3.25.2006 11:54am
SteveMG (mail):
Medis:
I agree. And I think your variations on "Bush: The GOP's FDR!" are quite illuminating.

Good one. The GWB as the Republican's LBJ scores points; although I think the Carter analogy is even better. But "GWB as JEC" makes most people scratch their heads.

Of course, it all depends on who's the recipient, if you will, of the counter one liner. If you're taking on a liberal critic of Bush, i.e., Kleiman, then you've got to employ an FDR analogy.

If you're taking on a Republican critic, then references to RWR come in handy.

And hey, I thought the Madisonian "let fiction counter fiction" was pretty good. No one is cheering me for that one. Hell, I give and give and what thanks do I get?

SMG
3.25.2006 12:15pm
PersonFromPorlock:
Ken Willis: [T]o say the timid and halting presidency of GWB is exercising unlimited power is absurd.

I'm not so sure. Timid and halting GWB may be, but may he not also be setting up a system that a less timid and halting successor can abuse? Incompetence (or, charitably, diffidence) at using power doesn't mean the power isn't there.
3.25.2006 12:19pm
Hovsep Joseph (mail) (www):

But "GWB as JEC" makes most people scratch their heads.


That's because Jimmy Carter didn't use his middle initial. "GWB as JC" would probably resonate with people a little more, albeit for different reasons.
3.25.2006 12:41pm
A. Zarkov (mail):
abb3w:

Yes, good point. Jefferson had what we would call a "liquidity crisis" today. He had lots of assets, but he couldn't readily turn them into the cash he needed because his farm was always unprofitable. On the other hand, Washington was a good businessman and his farm was profitable. He also had riverfront property so he could easily ship his produce, and he made good money just off the fish. Jefferson got so desperate for cash he would borrow from one of his slaves. It seems the slave who answered the front door would get tipped, and Jefferson had a lot of visitors to Monticello. I'm impressed that Jefferson let him keep the money. Jefferson also cosigned a loan and that came back to bite him. I think Jefferson ended up having to sell his beloved library and that was the start of the Library of Congress.
3.25.2006 1:26pm
EricH (mail):
I think Jefferson ended up having to sell his beloved library and that was the start of the Library of Congress.

Indeed, and it caused a bit of a controversy. Several members of Congress (and among the public at large) were concerned over reports that there were numerous "salacious" or "obscene" works among Jefferson's collection and that the government would be purchasing questionable material.
3.25.2006 1:32pm
karrde (mail) (www):
As a historical footnote, then-General George Washington was offered a position as King by his own general staff in the military. These are not people usually referred to as "Founding Fathers", except that they might have later become influential politicians in Americans politics.

Gen. Washington had to tell his officers to stop the move to make him a King.

This near-crowning occurred at the end of the War, several years before the Constitutional Convention. The artices of the Constitution that are referred to were not in effect at that time, because the government of the American States was very ill-formed.

(Anyone remember the Articles of Confederation of the United States of America? That was the government of the States between the end of the War in 1783 and the Constitutional Ratification in 1789. Six Presidents were seated under the Articles of Confederation: John Hanson, Elias Boudinot, Thomas Mifflin, Richard Henry Lee, Nathan Gorman, Arthur St. Clair, and Cyrus Griffin. Source:This article, found by a little Googling.)

Anyway, comments about the "Founders" offering the position of King to Washington is very inaccurate. It makes a great one-liner, but it is not good for debate, because

As is any contention about a "domestic spying" program. The only evidence made public so far cannot be called domestic spying. It is fair to debate whether President Washington would have intercepted mail to and from governmental authorities of national enemies, but the debate must use factually-accurate details.
3.25.2006 2:24pm
Thief (mail) (www):

As an aside, I always find it interesting that pro-Administration folks usually disclaim any desire for the President to have "unlimited" power, but when asked for specific limiting principles on their presidential power arguments, they generally refuse to articulate any.


Ummm... elections? Impeachment? Congressional subpoenas?

/Bueller? Bueller?
3.25.2006 2:49pm
Scott Scheule (mail) (www):
That line is lame, sentinment notwithstanding.
3.25.2006 2:52pm
Jay Goodman Tamboli (mail) (www):
I've always liked this one:

perl -e '$_ = "wftedskaebjgdpjgidbsmnjgc"; tr/a-z/oh, turtleneck Phrase Jar!/; print;'
3.25.2006 3:03pm
Anon7:
I don't think Bush would obey a Congressional subpeona without a heck of a fight. That has been his pattern from day one in office.

Heck, even if Congress did impeach and convict him, I think Bush would refused to acknowledge it. He's commander in chief of the armed forces, and that gives him unrestricted, plenary powers in time of war.
3.25.2006 3:07pm
18 USC 1030 (mail):
No one wanted Washington to be king. Read any of the writings by the founders, some may have had differing ideas as to what the power-split should be. But, NONE wanted Washington to be king. They had just fought against the crown, the founders wanted anything but that type of government. If one reads the Constitution in context of the time period, it was not a conservative piece- it was quite progressive.

As to the Bush having Unlimited Power argument, I think it is reasonably deduced that Bush believes he is entitled to unlimited power. Not unlimited in the sense of being able to control all facets of government, but unlimited in exercising the power he is granted. The president is against any oversight provision aimed at, not limiting his power; but, merely reveiwing his actions. If the president does not believe congress has the right to reveiw his actions, it seems the president believes he is free to exercise power as he sees fit-- and accountable only to himself.

Indicitive of this is the fact that he attached an addendum to the McCain amendment that would allow, if he thought necessary torture. Also, the continued belief that the NSA surveilence is legitimate and is not under the purview of congressional oversight. Finally, the addendum to the PATRIOT ACT that states that the oversight provisions are not binding yet again demonstrates why it seems Bush believes he has unlimited power. He may not believe it, but his actions speak louder than words.
3.25.2006 3:14pm
Ron Hardin (mail) (www):
The details aren't worked out as to what the President can do if Congress doesn't want it, but Congress can impeach and remove the President for any reason. Of course they have to face the voters, just as the President does.

That aside, leaving the details open avoids making bad law.

The less that happens automatically, the better.
3.25.2006 4:22pm
A. Zarkov (mail):
karrde:

That link is a little misleading, at least if you believe Wikipedia. John Hanson was the first "President of the United States in Congress Assembled." As there was no executive branch under the Articles of Confederation, there could be no president of the US. Hanson was more like a prime minister. He used that title when dealing with foreign governments. I don't know if you could consider Hanson as the head of state at that time. For example, Tony Blair is Prime Minister, but not head of state, the Queen is the head of state. Yet Blair is the one who deals with foreign governments. Does anyone know if the Queen must sign UK treaties?

A somewhat amusing spy story (if true) involving the head of state. Oleg Penkovsky, colonel for Soviet Military Intelligence (GRU) volunteered to spy (circa 1960) against the USSR—a walk in. He did get to travel abroad and used these trips to convey information. But at first, he insisted he had to meet with the "head of state" for the US and the UK. This meant Kennedy and Queen Elizabeth, not the British Prime Minister. For some reason this was very important to him. I guess he didn't trust "party people."
3.25.2006 4:56pm
Just an Observer:
My own favorite bumper sticker would be:

Mr. President, tell it to the judge.

This reflects my opinion that the core problem in the current NSA controversy is lack of judicial review, and lack of good faith on Bush's part in seeking such resolution.
3.25.2006 5:04pm
EricH (mail):
Mr. President, tell it to the judge.

Countered by:
Do you want judges running the war on terror?

or

This is war, not a police action.

or

9/11 was an act of war, not a crime.

or a variant of (1):

Who wants judges telling us how to fight a war?

or (liberal version)

FDR fought the fascists, not judges. So will I

Believe me, Rove has a thousand of them.
3.25.2006 5:20pm
Just an Observer:
EricH,

The difference between your Rovian examples and mine is that yours are purely political, while mine is rooted in jurisprudence.

"It is emphatically the province and duty of the judicial department to say what the law is," said the core holding in Marbury v Madison.

When Bush asserts that his interpretation of statute and the Constitution allows him to ignore black-letter law, he has an affirmative obligation to validate that theory in the courts.
3.25.2006 5:38pm
EricH (mail):
The difference between your Rovian examples and mine is that yours are purely political

Yes (maybe), but these are dueling bumperstickers.

It's the sizzle, not the steak that matters.

And sorry, there's a bit of politics in your one liner. At least from my viewpoint.
3.25.2006 5:45pm
Just an Observer:
EricH,

Actually, I think Rove's copywriters are probably more clever than you, and would produce better slogans.

Also, I don't claim that the white hats will win. The black hats seem to be ahead in the Senate right now, which probably has less to do with slogans than with arm-twisting.
3.25.2006 5:57pm
Rodger Lodger (mail):
It's no more than a tautology. It packs no rhetorical power unless you dislike Bush in the first place. If it's read as carrying content (synthetic, as opposed to analytically true, statement), then you can substitute FDR, Lincoln, or whoever you feel like. My impression of all the name-calling of Bush is that it bespeaks powerlessness, like when we were third-graders and our only weapon was calling names.
3.25.2006 6:12pm
EricH (mail):
Actually, I think Rove's copywriters are probably more clever than you, and would produce better slogans.

I'm sure they are. Much, much more clever (hell, mine were entirely off the top of the noggin).

Focus-group tested ones too.

As to the white hats and black hats.

I'll leave that one for another time and another day.
3.25.2006 6:14pm
markm (mail):
"to say the timid and halting presidency of GWB is exercising unlimited power is absurd."

How about creating precedents so his successor can exercise unlimited power? His administration has attempted to create a basis for:

1) The executive branch has claimed the power to spy on foreigners and Americans without any review of their reasons for intercepting their phone calls, etc. It's not the interception of calls between the USA and foreign countries that bothers me, it's that Congress established a quite lenient procedure for determining whether each particular intercept is justified, and the Bushies could not be bothered to follow it. Add a little corruption - and every government agency with any power will always be susceptible to corruption - and the NSA has the means to spy on both international and domestic calls, with no checks on who they are spying upon and what they are doing with the information.

2) The executive branch has claimed the power to arrest American citizens in the USA and lock them up for years without having to present any evidence against them. See the Jose Padilla case. Maybe the Bush administration does have evidence that he is an "enemy combatant", even though he was unarmed and alone when he was arrested in Chicago, but if they won't let a court look at the evidence, then they are setting a precedent for any President who is willing to lie to imprison anyone, with or without evidence.

That is power as unlimited as the next President wants it to be. Apparently, if by some amazing malfunction of the political system I was to become President, I could determine that the greatest threat to our nation was Americans who want to restrict our freedom, and have Senators McCain, Feingold, all the Senators and Congressmen who voted for their campaign finance bill, and the five Supreme Court justices who voted to uphold it imprisoned as enemy combatants. Next, any attempt to remove me from office - by impeachment, or by running against me in four years - would also get the "enemy combatant" treatment. The constitutional amendment that set a two-term limit could be a problem - but give me unlimited power for 8 years, and who's going to dare to bring it up?

OK, it wouldn't work - because the revolution would start inside the executive branch. I wouldn't care to hire anyone who'd go along with such a program, and I'm not a good enough or terrifying enough leader to keep even the most obedient of government hacks in line. But under the legal precedents Bush has tried to establish, it would take a revolution to stop a President who wanted to seize absolute power.
3.25.2006 6:17pm
johnt (mail):
A few comments on the comments; 1] there is a vast difference between unlimited power and unilateral power, I don't intend to explain it, perhaps a dictionary or the Constitution will. 2] The one liner is a little more than it appears. It is a standard refrain with variations from people whose concern for presidential power waxes and wanes with whoever is in the WH, democrat or republican. Decide for yourself when waxing, when waning, and how seriously it is to be taken. 3] the NSA thing; FISA judges were fully aware of the program. Judges Kollar-Kelly and Lambeth ruled that the program could continue but that evidence gained could not be used in criminal proceedings, they were overuled by the FISA Appeals Court and the program still continues. It is as illegal as puting the proper change in a parking meter and leaving on time with your car. Congress has practiced oversight and has been aware of the program since the Fall of 2001, repeat, the Fall of 2001. You may wish to extend the oversight to additional committee's but I would suggest not holding your breath for anything concrete to happen. The original one liner might leave the unfortunate impression that across a broad base of issues,both domestic and foreign, something called unlimited power is sought. To excude the historical war time powers of Presidents is helpful in doing so even if the focus is on our intelligence and military operations. But in following precedent[ including Carter and Clinton] advising appropriate congressional committee's, and informing the relevant courts Bush has not only operated within the law and tradition but has acted in a most unkingly fashion. Apologies to any earlier posters who feel that the administration should announce beforehand what their secret plans and operations in wartime may be, however contingent. Although doing away with secrets as a matter of broad policy may be interesting, apart from the programs mentioned, it may also be unconstitutional. You might even say monarchial depending on whose head rests the crown.
3.25.2006 6:35pm
George Gregg (mail):
Judging by the volume of rather piquant responses in this thread, it seems like a pretty effective one-liner, as far as one-liners go.
3.25.2006 7:09pm
EricH (mail):
Judging by the volume of rather piquant responses in this thread, it seems like a pretty effective one-liner, as far as one-liners go

Hmm, doesn't the guy on the street claiming to be Napoleon also engender quite a noisy response from onlookers?

Similar response, albeit sotto voce, with car crashes.
3.25.2006 7:15pm
Medis:
Thief,

Those aren't actually "limiting principles" for the presidential powers arguments in question. In other words, those offering such arguments might agree that something like impeachment would be the proper remedy for a President who insists on violating the constitutional limits on his powers, but they are arguing that the President has not in fact violated those limits. The precise problem I am identifying is that they tend to be unwilling to articulate what those limits actually might be.

But if you know of someone who is defending this program and who is also willing to articulate when something like impeachment would in fact be warranted, I'd be interested to see it.
3.25.2006 7:27pm
Just an Observer:
johnt: 3] the NSA thing; FISA judges were fully aware of the program. Judges Kollar-Kelly and Lambeth ruled that the program could continue but that evidence gained could not be used in criminal proceedings, they were overuled by the FISA Appeals Court and the program still continues

Wow. That statement so mangles the facts that I hardly know where to start.

Kollar-Kelly and Lambeth (the chief judge of the Foreign Intelligence Surveillance Court and her predecessor, respectively) were briefed on the NSA program ex parte, but never ruled on it at all. They never had the opportunity to rule on it, because no case or controvery was before them in which they might do so.

Rather, both judges reportedly warned DOJ that if such a case were brought, in the form of a FISA warrant application based on information from the warrantless surveillance program, the government would probably lose. Therefore, under a procedure devised by Judge Kollar-Kotelly, when DOJ seeks a domestic warrant for someone who was implicated in prior warrantless surveillance, the government is obliged to wait for independent and untainted information to turn up and to certify that it was not derived from such surveillance.

Notably, if the government wanted to establish its dubious theory that the NSA surveillance was legal after all, it need only skip that round-the-barn procedure and make such an application directly. But DOJ lawyers do not do so, because they expect they would lose.

BTW, the only case ever to be appealed from that court (In re Sealed Case) had nothing to do with the warrantless NSA surveillance. It did involve the question of using information from warranted FISA surveillance in criminal cases.

So no court, at any level, has ever ruled on the legality of the warrantless NSA surveillance, and President Bush's entire strategy is to keep the issue out of court at all costs.
3.25.2006 7:30pm
Stubbs (mail):
I don't think that George Bush has claimed "unlimited powers" nor has anyone sane claimed the he has assumed he had them. This one liner is a discredit to this blog. It is cheap falsification of the president's position. Shame on you.
3.25.2006 7:31pm
Just an Observer:
johnt: But in following precedent[ including Carter and Clinton] advising appropriate congressional committee's, and informing the relevant courts Bush has not only operated within the law and tradition but has acted in a most unkingly fashion.

I hesitate to ask for fear of what might be dredged up in reply, but if you are aware of a "precedent" where any president before Bush 43 actually has violated the provisions of FISA, I would be interested to see it. (Misinformation about such history has been spread around the blogosphere before, but has been fully rebutted.)
3.25.2006 7:41pm
SteveMG (mail):
This one liner is a discredit to this blog. It is cheap falsification of the president's position. Shame on you.

It's just a conversation starter.

Sorta' like when Ayn Rand first met William F. Buckley:

"You arrrh much too intelligent to believe in Gott!"

Guess you had to be there.

SMG
3.25.2006 7:43pm
wh38:
After five years in office:

FDR (90% tax rate on highest bracket) 19.7% unemployment rate.

GWB (reduced taxes for everyone) 4.7% unemployment rate.

Also the FISA Court of Review said Bush had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant.

In the words of Casey Stengle: "You could look it up."
3.25.2006 7:57pm
Glenn W Bowen (mail):
George Bush doesn't have unlimited power. Either.

As far as one-liners go, this is why you're an academic and not a comedy writer, Dave.
3.25.2006 8:01pm
Medis:
wh38,

When you dramatically increase federal spending, you increase taxes. It is only a question of when, not if.
3.25.2006 8:08pm
Just an Observer:
Stubbs: I don't think that George Bush has claimed "unlimited powers" nor has anyone sane claimed the he has assumed he had them.

Well, the president tried to answer that question in his Jan 27 interview with Bob Schieffer;

SCHIEFFER: Let's talk a little bit about this whole idea of eavesdropping without court orders. You said very strongly, and the strongest language I've heard you use yesterday, that you believe it is not only legal, you believe it is absolutely necessary in the War on Terrorism. The--the question I have, Mr. President, is: Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?

PRESIDENT BUSH: That's a--that's a great question. You know, one of the--yeah, I don't think a president can tort--get--can order torture, for example. I don't think a president can order the assassination of a leader of another country with which we're not at war. Yes, there are clear red lines, and--it--you--you--you just asked a very interesting constitutional question. The extent to which a president, during war, can exercise authorities in order to protect the American people, and that's really what the debate is about. ...


So Bush could only think of two things he couldn't do:

1) "Order torture." But of course, we also know from his signing statement on the McCain amendment that he reserves the right to interpret that legislation rather liberally as he sees fit.

2) "Order the assassination of a leader of another country with which we're not at war." I'm sure that Hugo Chavez was relieved to hear that, but IIRC that limit is in an executive order, not legislation.

Altogether, Bush doesn't admit to many limits.

Of course, he is operating with the benefit of an opinion from John Yoo in his own Justice Department:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, 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, under our Constitution, are for the President alone to make.


So neither President Bush nor his Justice Department seem to admit to any significant limits at all, and DOJ now says he can disregard FISA, a statute honored by all other presidents since its enactment. Have you thought of some limits Bush hasn't, consistent with what powers he claims?

[Sorry, this won't all fit on a bumper sticker.]
3.25.2006 8:55pm
A.W. (mail):
I don't know, in my book, an obvious straw man is never a good one liner. At the very least, it has to be a subtle straw man.

Now one is talking about granting Bush unlimited power. And, incidentally, G. Washington invaded privacy, etc. much more arbitrarily than Bush did, in even the worst fever dreams of the left.
3.25.2006 9:12pm
wh38:
Medis:

Not true. If the tax rate is too low or too high, then tax collections suffer. If the tax rate is to high, incentive is destroyed and jobs are eliminated or not created. That is why the unemployment rate was near 20% in January 1938.
3.25.2006 10:03pm
Lev:
The founding fathers didn't trust the first congress with the income tax. Why should we trust the 109th with it?
3.26.2006 12:14am
Dave Hardy (mail) (www):
While I wouldn't agree with the point being made, it is rather unfair to say that a one-liner doesn't fully/adequately/fairly explore an issue. It's a bumper sticker with a pituitary problem. The only fellow who could say something deep with a one-liner was Neitzsche, and look where it got him.
3.26.2006 12:21am
Lev:
God is dead.
3.26.2006 12:34am
Shad:
I prefer this classic one-liner from 1998:

<b><i>"Stroke of the pen, law of the land. Kinda cool."</i></b> — Paul Begala, White House communications counsel, marvelling in an interview at how Clinton managed to circumvent any checks on his power by simply issuing Executive Orders.
3.26.2006 1:28am
Splunge (mail):
WTF? That wretch Maloney was supposed to be picked up by the NSA "black ops" people months ago and sent to the secret prison in Colorado for Enemies of the President. And yet apparently he's not only alive and free, but even running for New York AG and posting these scurrilous sentiments on the Internet. This is such a screw-up.

Damn it, what's the use of having unlimited power when these continual bunglings in the secret Gestapo bureaucracy mean no one ever actually fears for his life when criticizing the President? Feh.
3.26.2006 1:29am
Bruce Hayden (mail) (www):
I think the one liner is silly, and the point about unilateral power is apt. One problem is that the only place that President Bush is really asserting this sort of power is at the core of his presidential power - to conduct foreign policy and protect America from foreign enemies. If he were truly trying to exercise unlimited power, he would have the FBI and CIA surveiling his domestic opponents, having their taxes audited, and even throwing them in jail. The hated New York Times? Shut down. Dan Rather? In jail. Senator Feingold? Shot.

Those who are claiming that he is violating "black letter law" here are intentionally ignoring basic separation of powers issues. You may believe that Congress overrode the President's Article II powers with FISA, but that isn't black letter law. Jackson's Youngstown concurrance was just that, a one Justice concurrance. It may be persuasive (I don't think it is), but it is not precedential, and is easily distingished here. No matter how much you yell and scream about how clear cut this is, it isn't.
3.26.2006 3:46am
George Gregg (mail):
GG: Judging by the volume of rather piquant responses in this thread, it seems like a pretty effective one-liner, as far as one-liners go

EricH: Hmm, doesn't the guy on the street claiming to be Napoleon also engender quite a noisy response from onlookers?



Well, raving street lunatics seldom incite dozens of intelligent lawyers to line up to offer cogent refutations of the thesis...even sotto voce.
3.26.2006 4:11am
Cornellian (mail):
One problem is that the only place that President Bush is really asserting this sort of power is at the core of his presidential power - to conduct foreign policy and protect America from foreign enemies.

Funny how the "protect America from foreign enemies" power, lurking somewhere in a penumbra of Article II, nevertheless trumps his obligation to faithfully execute the laws enacted by Congress, which is plain on the face of Article II.
3.26.2006 4:42am
George Gregg (mail):
Agreed, Cornellian.

Article I, Section 8 of the Constitution gives Congress the clear and explicit power

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

That's specific Constitutional authority given to the Congress to make laws which determine how the President will execute his inherent Article II authority under the Constitution.

Youngstown supports this. FISA is explicitly controlling for surveillance. So...it would seem pretty straightforward that FISA applies to GWB, notwithstanding his argument that he can arrogate to himself special executive power because we're at "war".

Hence, the President's arrogation of power on this point seems to be at odds with the fundamental statement of Article I, Section 8 of the US Constitution.

Frankly, the Republicans in Congress know FISA is legally controlling, which is why they're not trying to argue anymore that the President's warrantless wiretaps are legal, but instead trying to change the law. If the President weren't actually controlled by the law, there would be no need to change it to accomodate his arbitrary application of the statute.

Which suggests that the one-liner has at least a grain of truth to it.
3.26.2006 8:53am
Just an Observer:
Bruce Hayden:

Jackson's Youngstown concurrence has persuaded some pretty important folks that it is precedential -- Chief Justice Rehnquist, who citied it for the majority opinion in Dames &Moore, which did make it precedential whether you are persuaded or not. Samuel Alito, during his confirmation hearing, explicitly said he would apply Jackson's analytical framework if he had to rule in the FISA controversy. And in general, here is what Chief Justice-to-be John Roberts said about it:

Senator LEAHY: Do you agree that Congress can make rules that may impinge upon the President's command functions?

Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President's view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.


So, to review that analysis:

1. Congress certainly has powers (under Article I Section 8) to regulate the President in this area.

2) If there is a conflict, the place for final resolution is in the courts.

3) When the President acts contrary to the expressed will of Congress, Justice Jackson said, "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." In other words, the court would have to find FISA unconstitutional for some reason other than the tautological fact that the Commander in Chief wants to violate it.

The final problem being that the President will not submit his radical constitutional theory to the courts for adjudicatation, adopting instead the strategy of a fugitive.

Mr President, tell it to the judge.
3.26.2006 9:41am
gus3 (mail) (www):
What do I think of this one-liner? I think it's particularly useful for exposing the alignments of several commenters, with remarkably little effort on Mr. Volokh's part.
3.26.2006 10:15am
Medis:
wh38,

You said: "Not true. If the tax rate is too low or too high, then tax collections suffer. If the tax rate is to high, incentive is destroyed and jobs are eliminated or not created. That is why the unemployment rate was near 20% in January 1938."

That theory does not suggest that increases in spending will not require increases in tax rates. Just the opposite: it implies that the effects of increasing spending will be even worse for tax rates than we would otherwise predict.

The theory you note is based on the notion that because of the economic effects of taxes, the optimal tax rate may be somewhat lower than one would think in the absence of those effects. So, suppose you are at the optimal tax rate for level of spending X, which we can call tax rate X. At that point, the revenues from tax rate X will just barely support spending level X, accounting for the economic effects of the tax. Again, because of the economic effects of taxes, tax rate X might be somewhat lower than we could otherwise assume. Nonetheless, there is still some optimal rate X below which we cannot lower taxes without failing to generate enough revenue to support spending level X.

If you then increase your spending level to some Y which is higher than X, then the same optimal tax rate X will no longer support your spending. You will have to raise your tax rate to some new optimal level Y, which will support spending level Y, even accounting for the economic effects of the tax. Again, rate Y may be somewhat lower than we would otherwise assume, but there will be some optimal rate Y below which we cannot go, and that rate Y will necessarily be higher than the old optimal rate X.

All the theory you note does is suggest two thing: (1) tax rates X and Y might be somewhat lower than one would expect if not for the economic effects of taxes; and (2) that if you increase spending faster than the economy is growing (which is regrettably true under Bush by a wide margin), then taxes will have to grow even faster to keep up. And that second part is true precisely because of the economic effects you describe, which leads to diminishing marginal increases in revenue from marginal increases in taxes.

In short, the theory you note cannot be used to rationalize away the effects that increasing spending faster than the economy will inevitably have on tax rates. Indeed, it only suggests that the effects on tax rates will be WORSE than we would ordinarily assume, because of the decreasing marginal effectiveness of tax increases.

So, President Bush is raising our taxes by increasing spending faster than the economy is growing. And the theory you note actually implies that problem is worse, not better, than we would otherwise assume.
3.26.2006 10:19am
Medis:
Bruce,

As JaO pointed out, the Court adopted Jackson's Youngstown framework in Dames &Moore. Moreover, the Hamdi plurality also cited Youngstown for the proposition that "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," and immediately followed with the proposition that "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

As always, any argument about the applicability of Youngstown to this case which ignores those other two cases (Dames &Moore and Hamdi) simply is not credible. But as JaO points out, every indication suggests that the President believes it is a loser as well.
3.26.2006 10:27am
Medis:
wh38,

To clarify one point: of course, I am assuming we are currently on the "left side" of the so-called "Laffer Curve". I believe that is an uncontroversial assumption (the estimates I have seen for the switchover range from marginal rates of 65-80%). Perhaps that is what you are thinking of with respect to the 90+% marginal rates during WWII. But of course that is not the current state of marginal tax rates, and I don't know of anyone who thinks we could not increase revenues from the current level by raising rates.

Of course, if we were instead on the right side of the Laffer Curve, or close to the top on the left side, then the Bush spending increases might be truly disasterous. That is because in such cases there might be no way to pay for his spending increases at all. But as noted, I don't think we are in quite that bad of a position. Rather, Bush's spending increases can be paid for--it will just inevitably require a raise in taxes.
3.26.2006 11:22am
Brian Macker (mail) (www):
EricH,

FDR fought the fascists, not judges.

As a matter of fact he did fight the supreme court, even threatened to pack it with his own people. FDR was at least an order of magnitude worst than the current Bush in the direction of "unlimited power", and that all BEFORE Hitler was a problem.

I'm more concerned about the unlimited power that congress has wielded with the "commerce clause" than I am with Bush's spying on conversations Al-Qaida has with people located in the US, whether they be terrorists here on student visas or citizens who can trace their ancestry back to the Mayflower.
3.26.2006 11:25am
Brian Macker (mail) (www):
Just an Observer,
So Bush could only think of two things he couldn't do.


Seems, according to you, that means Bush thinks he can walk into the Senate and point out opponents to be shot like Saddam did.

Boy, you have pretty low standards for figuring out what the other guy is thinking.
3.26.2006 11:40am
Just an Observer:
Brian Macker,

I don't say there are no strawmen that could be be invented to counter the strawman embodied in the original slogan at the top of this thread. A high school debater could do that, as you did easily.

But more particularly and seriously in the area of executive war powers, which Bush was asked about in my example above, he and his lawyers actually do not specify where the separation-of-powers line is. They have told us some places where they think it is not, but are not willing to defend even those theories in a court of law.

Obviously, I am not willing to assume the burden of defending the original slogan. But I continue to defend my own bumper sticker: Mr. President, tell it to the judge.
3.26.2006 12:36pm
Medis:
Brian Macker,

Keep in mind the question was this: "Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?"

In that sense, it is true that no one is suggesting that the President can do whatever he wants for his own personal gain or political advantage, and therefore his power would not be "unlimited" in that sense. But one can still ask whether there are any limits to what the President can do "if he considers it necessary" for the sake of something like preventing terrorist attacks.

In other words, there is at least one limit to this view of presidential powers: the President himself has to determine first that the exercise of power in question is necessary to further national interests. But after that limit, are there any other limits?
3.26.2006 12:43pm
George Gregg (mail):
Why does the US Constitution hate America so much?
3.26.2006 1:02pm
George Gregg (mail):
While we're all deliberating how much power the President believes he has, perhaps his addendum on the signing of the Patriot Act will prove illustrative.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law's requirements, he could withhold the information if he decided that disclosure would ''impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties."

Bush wrote: ''The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information . . . "


Impair the deliberative process of the executive!? Does that sound vague enough to be worrisome, yet?

I seem to remember that those oversight stipulations were a major part of what allowed the Partiot Act to get passed at all. I guess the law doesn't really matter, though, if George W. Bush's "deliberative process" would be "impaired" by having to follow it.
3.26.2006 1:11pm
Cornellian (mail):
Frankly, the Republicans in Congress know FISA is legally controlling, which is why they're not trying to argue anymore that the President's warrantless wiretaps are legal, but instead trying to change the law. If the President weren't actually controlled by the law, there would be no need to change it to accomodate his arbitrary application of the statute.

Which is probably way Pres Bush refuses to ask for any change in the law. He doesn't want to admit he's violating the current one, so instead he plays this dodgy game of claiming to comply with the law, with the unstated premise being that non-compliance is, in fact, compliance because the law cannot restrain the President in the exercise of his powers as commander in chief. This approach has the additional advantage of making it more difficult to get the issue adjudicated in the courts. However the strategy is barely holding up even with Republicans controlling the House and Senate. It will fall apart completely if the Democrats regain either chamber in November.

If the law is flawed in some way, I'm all for amending it to fix whatever might be wrong with it, but it's Congress' job to fix the law, not the President's to ignore it.
3.26.2006 2:56pm
Brian Macker (mail) (www):
Personally, I haven't seen enough evidence to indicate to me that the president want unlimited power.

Just because the congress and the president are having a tiff over how exactly the congress can restrict the presidential office does not indicate to me that Bush wants unlimited power, as the quip states, nor even the restricted version regarding certain of his responsibilities.

To win me over on this issue would require more proof than has been offered. I just don't trust these articles anymore because they do not provide the facts but only their interpretation of the facts. I can't be bothered to investigate further till so disturbing evidence is provided. I see no evidence that Bush is pursuing this war in a mannaer that is any worse than any Democrat in the past.

I don't see him interning citizens who have origins thar are Saudi Arabian, Iraqi, or Afghani. If anything the government is not doing enough, they are not even profiling at the airports, and act as if a Jewish grandmother is as likely a terrorist as a Palestenian. I could care less if they listen into my overseas calls with terrorists. Listen away.

In fact, I think the entire wire-tap laws were designed to protect politicians on the take, more than the average Joe citizen. I can't even tape my own conversations in some places without getting approval from the other parties. Why is that? Precisely so you cannot tape that Mayor, or Senator squeezing you for that bribe.

Is what is going on really any worse than what went on under Clinton when they massacred those children at the Branch Davidian compound. I think using tanks to punch holes in the sides of a wood structure and to pump in flammable gasses with the knowledge that there were open fires within is of far more concern.

I just get sick of the Left constantly whining about how our freedoms are under threat when they are perfectly willing themselves to destroy freedoms. The idea, enabled in large part by the lefts opposition to drugs and the drug war, that one can charge money with a crime and that confiscating said money is not a punishment is a threat far greater than any wire tap law.

I'm not saying you are wrong, nor am I saying that you couldn't provide more compelling evidence. What I am saying is your not pushing my buttons in the proper way to get my attention. You may not be aware of it but I certainly was, torture has always been an option our military has resorted to extract military information in emergencies against organizations that have not agreed to do otherwise themselves, and such torture is quite a different thing than torture used to obtain confessions for trials, change opinions, terrorize a population, or that done just for the fun of it. I am vehemently against the former torture kinds of torture, and I do not believe that we, as a policy, do it.

You know my mother-in-laws best friends son was just charged with committing a crime in Mexico that he claims that his "friend" did. Unfortunately for him his "friend" got caught and fingered him first. The response of the police was to beat the kid, and he is a kid, all night and torture him till he confessed. That included having a plastic bag put over his head to the point of suffocation. This kind of testamony is perfectly admissible in Mexican courts. The kid will be spending a long time in prison. A prison system harser than ours. Will the "policemen" involved see their day in court like we did to those idiots at Abu Girab, for "torture" far less serious, like humiliating pictures. Does this reflect badly on Mexico in the "world community", why no, because most of them are doing the same thing, and frankly hate the US.

You want to win me over on this then you need to phrase things differently. Instead of, implying that Bush has bad motives, which you cannot know with any of the evidence you have supplied, first state that you understand Bush has noble intentions, that the US is justified in her anger at the attacks of 9/11, blah, blah. Then state factual reasons why what you oppose may at some future date fall into bad hands, taking into account that far worse has been done before and that you oppose those things more strenuously, and if not, why not.

I just can't get over the fact that people praise FDR and Lincoln like they are gods, and will actually ostracise you if you question those myths, are extra super first amendment advocates, yet are not the least bit disturbed that these guys were not only locking up people for expressing their opinions, shutting down papers, but were actually interfering with the other branches of government when those branches opposed their desires.
3.26.2006 3:28pm
bkrog (mail):
Indeed, one-liners are not intended to withstand any sort of detailed scrutiny, any more than pithy quotes (or these days, emphatic assertions or just plain shouting) can replace substantive argument.
That said, I rather like a recently-proposed slogan for a Democratic bumper sticker:
"Had Enough?"
3.26.2006 3:37pm
George Gregg (mail):
If the law is flawed in some way, I'm all for amending it to fix whatever might be wrong with it, but it's Congress' job to fix the law, not the President's to ignore it.

Totally agree, C.
3.26.2006 3:46pm
EricH (mail):
I rather like a recently-proposed slogan for a Democratic bumper sticker:
"Had Enough?"


Yeah, not bad but the problem is that Newt Gingrich thought of it.

Counter:

"Democrats are so lacking in ideas that they have to steal from Newt Gingrich"

Et cetera, et cetera
3.26.2006 6:08pm
Someguy:
JaO said...
The final problem being that the President will not submit his radical constitutional theory to the courts for adjudicatation, adopting instead the strategy of a fugitive.

I don't see it as Bush's job to submit his 'radical constitutional theory' to the courts. Clearly they feel they are operating within their authority. If Congress believes otherwise, Congress can use it's powers, have oversight hearings, subpoena officials etc if it chooses to.

Eventually, this may end up in the courts via some citizen making a claim of their rights being violated, then the administration can subject their claims to judicial review.

Guy
3.26.2006 6:17pm
Medis:
EricH,

Of course, Clinton already thought of stealing ideas from Newt, so really they would be stealing the idea of stealing ideas from Newt from Clinton.
3.26.2006 6:18pm
Medis:
Someguy,

As an aside, the Administration is not just failing to come up with a way to submit their theory to court. They are taking active steps to avoid judicial review, in particular by avoiding submitting evidence gained through this program to the FISA court. That active avoidance is hard to explain if they really believe their arguments are meritorious.

Anyway what if that individual person is a criminal defendant, and crucial evidence ends up getting tossed out because it was unlawfully obtained or the "fruit of the poisoned tree"? Or what if individuals in the government end up being subject to civil liability, or even prosecuted for a crime, because they conducted illegal surveillance?

The longer the President avoids judicial review, the greater the potential harm if an adverse judicial decision does occur. That is one of the many reasons why the DOJ traditionally brought test cases for its various legal theories--at least back when they thought there was a good chance the courts would agree.
3.26.2006 6:25pm
Someguy:
Medis,
You make good points...
I certainly make no claim to know the rationale for the administration's actions, but here is my $.02

It is certainly a reasonable inference that active avoidance of judicial review means that they think they might not prevail. However, it is possible that they believe their arguments are meritorious and don't want to get into legal battles over it right now. If that were their position, it would make sense to not submit that evidence to the FISA court.

Clearly, if the administration eventually looses on this point, some criminal prosecutions could be hampered and/or lost. Presumably they have weighed that consideration and gone ahead anyway. If their #1 priority is to have as much intelligence as possible to avert terrorist attacks-that they are prosecuting a war and not trying to line up ducks for criminal cases-it makes sense to avoid having the courts try to take these tools away. We may disagree with the value judgement or with their views of their inherent powers, but their actions can be judged reasonable if we assume this is their midset. To me, it seems to be the midset they are trying to portray.

I agree that the longer Bush avoids judicial review, the greater the potential legal harm. However, from the point of view of prosecuting the war on terror, if the courts rule against them, the sooner that happens, the greater the harm will be in the ability to use these tools to get as much info as possible to make sure we are able to connect-the dots before the next attack.
3.26.2006 6:52pm
Just an Observer:
Someguy: I agree that the longer Bush avoids judicial review, the greater the potential legal harm. However, from the point of view of prosecuting the war on terror, if the courts rule against them, the sooner that happens, the greater the harm will be in the ability to use these tools to get as much info as possible to make sure we are able to connect-the dots before the next attack.

That really amounts to an argument for getting away with something at least possibly illegal for as long as possible. If the administration's "legal theory" is wrong and the law means what it says on its face, there are actual criminal violations by government employees and officers occurring on an ongoing basis.

The kind of lawyering behind this kind of tactic may be common on the part of a mafia defense attorney, but is not appropriate for the President and attorney general. That is because the President took his oath to "preserve, protect and defend the Constitution of the United States," which imposes an affirmative duty: "He shall take Care that the Laws be faithfully executed."

Since it is canonically true that the judiciary has the final word on the law, if there is any doubt the President has the duty to seek resolution of the controversy in court. Yet DOJ goes out of its way to avoid resolution.

Additionally, the practical effects of prosecuting the war on terror are just the opposite of what you suggest. We know from the Washington Post that there have been cases such as this:

The President says that when Al Qaeda is talking to someone in this country, we want to know why. That's what the program is supposed to be focusing on.

1) Such a call to John Doe is intercepted. Up to that point, Doe has never been on the radar screen.

2) In listening to the calls, NSA gets information establishing probable cause that Doe is, indeed, an agent of Al Qaeda. There is no ticking bomb, but NSA officers reasonably think he is such an agent.

3) At this point, the government wants a FISA warrant so it can surveill Doe's domestic calls. It can proceed immediately under the the attorney general's opinion that the prior surveillance was lawful, and apply for such a warrant.

4) But the government does not do so. Instead it waits until some other, independent evidence surfaces that would establish probable cause.

If the government had pursued path 3) instead of 4), not only might it win the warrant in the immediate case, but that would establish the precedent allowing such evidence in all similar cases in the future.
3.26.2006 7:47pm
Someguy:
JaO,
Since it is canonically true that the judiciary has the final word on the law, if there is any doubt the President has the duty to seek resolution of the controversy in court. Yet DOJ goes out of its way to avoid resolution.

There can always be doubt with any law (was even more true when Sandy was still on the court). We all know how certain Bush is that he is right about basically everything. Is it possible that he has no doubt that he has the inherent authority to undertake this program? Certainly we have heard that some executive branch officials were uncomfortable with this program and presumably voiced their concerns and argued against this program. If the president tells said officials, 'thanks for the input, I disagree, here's what we are going to do' (without getting into the weeds of the unitary executive arguments), then what? In what way would the president be duty-bound to seek resolution in the courts? More importantly, who does the forcing him to seek resolution in the courts? Congress obviously has a role here, through oversight, power of the purse, etc, up to and including impeachment.

It's possible that the administration believes (and it can be argued whether or not they are correct) that presenting the evidence to the FISA court will provoke more intense scrutinty of the program (almost certainly true) and or might lead to more disclosure of methods and sources (obviously a weaker argument, but I wouldn't be surprised to hear these arguments from them).

The administration might also claim support from the FISA court of review's famous verbiage from 2002 ...' 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'.

You can argue that is wrong, but I think the administration also leans on this for justification.

Eventually this will be settled judicially. You can argue that it would be better for the administration to get this question settled as soon as possible. They may think it's better for the war effort to avoid the possibility of a negative result.

If the Dems get control of the house or senate, there will definitely be more congressional oversight but quick.

On the other hand, I would say it's possible that shortly before the election, Bush will do an about face and say to Congress 'OK, let's have that argument now' (see also, Dep of Homeland Sec, Congressional authorization of force).

Guy
3.26.2006 9:06pm
Just an Observer:
Someguy: In what way would the president be duty-bound to seek resolution in the courts? More importantly, who does the forcing him to seek resolution in the courts? Congress obviously has a role here, through oversight, power of the purse, etc, up to and including impeachment.

If Bush were acting in good faith, he would voluntarily seek such resolution. That certainly is the spirit of the advice from Justice to the White House in the previous administration.

I agree that there is no mechanism to compel such actions. The role of good faith and ethics in our system is to fill the gap, but of course the system does not guarantee that all presidents have the requisite degree of honor. In the absence of such good faith, Congress may pass Sen. Specter's legislation that effectively would require such judicial review. (Which itself would probably need testing in the courts.) However, the White House seems to be succeeding in getting the DeWine/Cheney "ratification" passed instead. Specter already has been isolated; he may just be run over.

someguy: It's possible that the administration believes (and it can be argued whether or not they are correct) that presenting the evidence to the FISA court will provoke more intense scrutinty of the program (almost certainly true) and or might lead to more disclosure of methods and sources (obviously a weaker argument, but I wouldn't be surprised to hear these arguments from them).

I wouldn't be surprised to hear such a preposterous argument either. Of course it makes little sense since the FISA courts are secret. The only things likely to become public are not operational details but the legal issues presented on appeal. (There is a reason that 2002 opinion was captioned In re Sealed Case.)

Someguy: The administration might also claim support from the FISA court of review's famous verbiage from 2002 ...' 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'

This is risible. The only court where that dicta might have any more weight than the tooth fairy is in the lower FISA court -- precisely the same court where DOJ is afraid to make its case.
3.26.2006 11:55pm
Someguy:
JaO,
I think good faith is somewhat in the eye of the beholder. One could argue that previous administrations were duty-bound by good faith and ethics to force resolution in the courts regarding their belief that they had inherent authority to conduct warrantless searches. The Clinton administration did not force resolution of this question in the courts-they did seek to get Congress to authorize warrantless searches, but claimed that even if Congress did not approve the changes (and it did not) they had inherent authority to conduct these searches. I do not assume bad faith or lack of ethics on their parts for failing to do so. Nor do I ascribe bad faith on the part of this administration for their actions.
3.27.2006 7:47am
Medis:
Someguy,

As an aside, if you are referring to the Clinton episode involving physical searches arising out of the Ames case in 1993, which led to the now famous Gorelick testimony about inherent authority in 1994, then Congress DID act--in 1994, at Clinton's request, they added provisions for physical searches to FISA. And to my knowledge, the Clinton Administration never argued that they could act in defiance of Congress once Congress had withheld authorization, or provided specific procedures required for authorization. Rather, the Clinton Administration just argued that they could act when Congress had not yet addressed the issue.

This, of course, is a crucial distinction when the issue is whether the President is fulfilling his constitutional duty to "take care that the laws be faithfully executed." In other words, it obviously makes a difference if the President is acting in the absence of law on the matter or rather in the presence of law on the matter.

But more broadly, I agree that we do not yet know the full motivations of the Administration. In particular, it is obvious that this issue is much broader than this particular program, as the President recently has announced in his signing statements on the McCain Amendment and the USA-PATRIOT Act reauthorization bill. In that sense, I think they see this issue as just part of a much broader assertion of unilateral presidential power.

But I'm not sure how thinking about their possible motivations helps the Administration on the constitutional issue. The bottomline is that we know already how they have justified bypassing FISA, because they have stated their reasoning in detail. And if one thinks their arguments are transparent rationalizations, and not good-faith legal arguments, then I'm not sure why their motives matter--they are still failing their constitutional duty to faithfully execute the law.

In other words, the Constitution does not contain a "good motives" exception to this presidential duty, and in that sense their motives are irrelevant--what matters is whether they are actually fulfilling their duties as defined by the Constitution.
3.27.2006 9:14am
Just an Observer:
Someguy: The Clinton administration did not force resolution of this question in the courts-they did seek to get Congress to authorize warrantless searches, but claimed that even if Congress did not approve the changes (and it did not) they had inherent authority to conduct these searches.

[Server problems prevented me from responding earlier, so Medis beat me to this. Sorry for the repetition.]

Someguy,

Your statement above does badly misstate the facts. The Clinton administration did not "seek to get Congress to authorize warrantless searches." To the contrary, Deputy AG Jamie Gorelick's 1994 testimony was in support of the proposed amendment to FISA that for the first time brought physical searches under its warrant requirements. Congress, in fact, went on to enact that amendment in 1995.

The position taken by Gorelick, in the absence of such action by Congress, was that the executive did have inherent power for warrantless searches. But when Congress acted, what once was lawful became unlawful.

In fact, no president before Bush 43 has violated the four corners of FISA's enacted requirements, or even claimed constitutional authority to so so. And, as I mentioned above, while Bush makes this claim to the press to justify his actions, he refuses to argue that same claim in court.
3.27.2006 10:48am
EricH (mail):
And to my knowledge, the Clinton Administration never argued that they could act in defiance of Congress once Congress had withheld authorization, or provided specific procedures required for authorization.

Here's a bit of a reach but in US vs. Usama Bin Laden (admittedly just a district court case), in 2000 after FISA had been amended, the Clinton Administration argued that there are exceptions to the warrant requirement for foreign intelligence searches. Exceptions that cannot be removed by Congress.

In the above case:

The Government urge[d] that the searches at issue in this case fall within an established exception to the warrant requirement. According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.

While the case involved physical searches of an American citizens' home overseas and whether the evidence acquired should be excluded, it's important to note that the Clinton DOJ made no distinction between physical and electronic searches or searches conducted overseas or in the United States.

Interesting as well was that the evidence acquired through the warrantless search was admitted by the presiding judge.
3.27.2006 12:34pm
Just an Observer:
EricH :Here's a bit of a reach but ...

Is there a prize for understatement on this blog?

By the plain language of your post, the case was not apposite, because the search in question did not violate FISA!
3.27.2006 2:01pm
Thorley Winston (mail) (www):
The hated New York Times? Shut down. Dan Rather? In jail. Senator Feingold? Shot.


And Mark Kleiman institutionalized. ;)

(J/K)
3.27.2006 2:10pm
Thorley Winston (mail) (www):

What do I think of this one-liner? I think it's particularly useful for exposing the alignments of several commenters, with remarkably little effort on Mr. Volokh's part.


Even less effort than you think, since the author of this thread is Mr. Bernstein. ;)
3.27.2006 2:11pm
Thorley Winston (mail) (www):
I'm more concerned about the unlimited power that congress has wielded with the "commerce clause" than I am with Bush's spying on conversations Al-Qaida has with people located in the US, whether they be terrorists here on student visas or citizens who can trace their ancestry back to the Mayflower.


Good point. It does seem odd to get all worked up over the thought that the federal government is continuing its long-time practice of monitoring international communications during a time of war (something that clearly falls within the President's power as CIC) while we have real threats to the constitutional order such as the transformation of the Commerce Clause into an all-purpose Swiss-army knife of jurisprudence that has eroded any meaningful limits on what constitutes a federal issue.
3.27.2006 2:14pm
Medis:
EricH,

To elaborate on JaO's post, that case involved the issue of whether there was an exception to the warrant clause of the Fourth Amendment, not FISA. And indeed, one of the central factors supporting the District Court's holding that there was an exception to the Fourth Amendment was the absence of a statutory warrant procedure. Specifically, the District Court reasoned:

"Thus, although this Court does not accept as settled the Government's proposition that it is impossible to secure a warrant for overseas searches or surveillance, it is clear that the acquisition would certainly have been impracticable given the absence of any statutory provisions empowering a magistrate to issue a warrant and the unsuitability of traditional warrant procedures to foreign intelligence collection."

So, although that case is not really on point, if anything I think it suggests a serious potential problem with the Administration's position: insofar as there is in fact an applicable statutory warrant procedure governing the foreign intelligence search or seizure in question, the exceptions to the Fourth Amendment which have been found by the courts in other foreign intelligence cases may not apply.

In that sense, bypassing the statutory procedures in FISA may lead to a Fourth Amendment violation even if the Fourth Amendment would not have been violated in the absence of such a statute. And so this is yet another way in which the Administration's failure to seek adjudication of this issue may risk the failure of criminal prosecutions as well as expose government officials to individual legal liability.
3.27.2006 3:03pm
EricH (mail):
Media:
that case involved the issue of whether there was an exception to the warrant clause of the Fourth Amendment, not FISA

Yes, I'm aware of those facts. The specific issues in the case involved determining whether there were exceptions to the Fourth Amendment and, from that, whether evidence obtained during that warrantless physical search could be used (the Judge ruled, "Yes" and "Yes").

However, instead of looking at what the case was about, look at what the Clinton DOJ argued they had the authority or power to do.

To wit:
[S]earches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.

Unless my reading comprehension skills are fading fast, that's a pretty definitive statement arguing that the executive may target agents of a foreign power for intelligence purposes with no judicial review or oversight.

No judicial review means, implicitly to me, no FISA limits.

Correct? Or am I completely off base?
3.27.2006 4:35pm
Medis:
EricH,

First, that isn't a direct quote from the government. In context, the District Court writes:

"The Government urges that the searches at issue in this case fall within an established exception to the warrant requirement. According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant."

Again, the "warrant requirement" in this passage is specifically the warrant clause of the Fourth Amendment. So, all the District Court was saying that the government argued was that there was an exception to the warrant clause of the Fourth Amendment for that particular case.

Second, I'm not sure where you are getting "no judicial review or oversight" out of an argument that there is an exception under the Fourth Amendment's warrant clause. For one thing, obviously the reviewing court still has to determine that the warrant exception in question applies to the case at hand (see the part of the discussion where the District Court lays out a three-part test for applying the exception). For another, holding that there is an exception to the warrant clause does not end the Fourth Amendment inquiry, because the search or seizure still has to be reasonable.

So, under the Fourth Amendment, the existence of an applicable warrant exception does not mean "no judicial review". And again, none of this is applicable to a statutory procedure requiring judicial review, which could be in addition to any requirements under the Fourth Amendment (and as noted above, they could interact as well).

In short, I don't see the grounds for the leap you are making. As far as I can tell, all the government argued for in that case was an exception to the warrant clause of the Fourth Amendment. I don't see any more general argument that statutory warrant requirements would not be valid, nor an even more general argument that there can be no judicial review at all.
3.27.2006 5:13pm
EricH (mail):
As far as I can tell, all the government argued for in that case was an exception to the warrant clause of the Fourth Amendment.

I'm not sure about that. I'm looking beyond this specific case for the larger argument for the authority to conduct warrantless searches.

As you probably know, John Schmidt, who served as associate attorney general in the Clinton Justice department, stated earlier this year that the chief executive has the inherent authority to order warrantless searches.

I'd be interested in what role Schmidt played, if any, in this case.

Again, Mr. Schmidt's DOJ argued:

[S]earches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant.

Sounds like something Mr. Schmidt would have signed off on.
3.27.2006 5:25pm
Medis:
EricH,

I don't see the inconsistency between Schmidt's claim as you report it and my reading of that case. The fact that the President has the "inherent authority" to order something does not mean that the President is immune to legislation, constitutional requirements, or judicial review on that same matter. It just means that he has the authority to order something in the absence of specific authorization by statute--whether he can continue to do so in the presence of a contrary statute or judicial decision is an entirely different matter. So, it is perfectly consistent to say that the President has the "inherent authority to order warrantless searches" in certain circumstances, but to also say that when ordering searches he is bound by the Fourth Amendment and any relevant legislation, and also subject to judicial review for compliance with both the Constitution and relevant statutes.

What you are talking about would be something like "exclusive authority" or "unilateral authority", not just "inherent authority", which would mean something like that the courts had no jurisdiction to review the issue at all. That is indeed what the Bush Administration has argued for in many contexts--including in Hamdi, where their claim to have exclusive authority over the detention issue in that case was soundly rejected by a vote of 8-1.

Anyway, I don't see any hint of the government arguing for "exclusive authority" in the case we are discussing--again, as I pointed out above, that sort of claim simply does not follow from the statement you are quoting, because the District Court is referring to the Fourth Amendment's warrant requirement. So, in context, that statement has nothing to do with statutory requirements, nor judicial review in general.

In short, I appreciate that you are looking for some sort of connection to the Bush Administration's arguments in this case. But as far as I can tell, the connection you are coming up with just isn't there. Nor should we expect it to be there, since the issues you are talking about were not presented in that case.

Finally, I might note that this is not hairsplitting in this context. Again, it is absolutely crucial to understand the difference between claims about what the President can do when there is no legislation on the matter and claims about what he can do despite legislation on the matter. And that is particularly relevant if the issue is whether the President has "taken care that the laws be faithfully executed".
3.27.2006 6:01pm
Someguy:
JaO, Medis,
You are correct. I mangled the Gorelick's testimony and the context. I apologize. Thanks for setting me straight.
Guy
3.27.2006 7:12pm
Just an Observer:
Someguy,

No problem. If you were doing Internet research, you could have been the innocent victim of many secondary sources, feeding off each, that published misinformation about the Gorelick matter a few months ago. Unfortunately, Google still retrieves the incorrect articles and blog entries.
3.27.2006 7:36pm
eddie (mail):
If a president can ignore any law during war time in his prosecution of that war as "commander-in-chief" and if the President can say, after signing a law, what that law means to him and the extent to which it may apply, then in what sense is his power not unlimited?

And by the way, isn't anyone worried about the day when they might be designated an "enemy combatant"?
3.28.2006 2:15pm
markm (mail):
Medis &EricH: To my mind, an argument that Bill Clinton did it too is hardly a good way to legitimize the behavior in question.
3.29.2006 1:35pm