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Judy G. Russell
January 20th, 2006, 09:15 PM
In response to Nick's message (http://www.tapcis.com/forums/showthread.php?p=12952#post12952), let's talk about this concept of "unitary powers."

The President of the United States, with the support of his Justice Department and the Attorney General he appointed, has taken the position that some presidential powers, particularly in the area of national security, are simply "beyond Congress' ability to regulate". He, and they, have also taken the position that he can act in any way he sees fit if he concludes that he is acting "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on judicial power."

I respond in the words of a jurist of great eminence in the United States, one far closer to what the Founding Fathers really meant than anyone today could be:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. [The] government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. . . .

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. . . .

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it....

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
The words are those of Chief Justice John Marshall. The case, decided in 1803, was Marbury v. Madison. The principal established in that case was that, saving only the most basic of political acts, it is the role of the Courts -- and not the executive nor the legislative branch -- that is to say what the law is. Asserting for the Executive some sort of special authority to decide what can and can't be decided by the courts, what is and isn't legal, is simply to subvert the whole concept of a tripartite government of law, the whole system of checks and balances.

Lindsey
January 20th, 2006, 10:04 PM
Yup; you don't get much closer to "original intent" than Marbury vs Madison. Not that I expect the originalists to stick to that argument when it goes against them.

[The] government of the United States has been emphatically termed a government of laws, and not of men.

Which is exactly the reason that Bush's "trust me" requests don't cut it. If men were angels, said James Madison, there would be no need for governments.

--Lindsey

Judy G. Russell
January 20th, 2006, 10:51 PM
[The] government of the United States has been emphatically termed a government of laws, and not of men.

Which is exactly the reason that Bush's "trust me" requests don't cut it. If men were angels, said James Madison, there would be no need for governments.Exactly. The executive branch (the King, the Czar, the Reichsfuehrer, the President, it doesn't matter which) has always sought to centralize power; it's critical for a democracy, or a democratic republic, to check that power. We sure ain't doing it at the moment.

Lindsey
January 20th, 2006, 11:05 PM
it's critical for a democracy, or a democratic republic, to check that power. We sure ain't doing it at the moment.
And not only are we not doing it, but those who are trying to hold the administration to account for it are being sniped at. And some of those doing the sniping are even Democrats. Supposedly. <sigh>

--Lindsey

Judy G. Russell
January 21st, 2006, 12:07 AM
And now we have Karl Rove saying the GOP should run this year's election on the terrorism issue. Which terrorism issue? Torture of suspects? Indefinite detentions without charges? Wiretapping of American citizens without court orders? The fact that Osama bin Laden is still out there and hasn't been caught?

ndebord
January 21st, 2006, 12:22 AM
And now we have Karl Rove saying the GOP should run this year's election on the terrorism issue. Which terrorism issue? Torture of suspects? Indefinite detentions without charges? Wiretapping of American citizens without court orders? The fact that Osama bin Laden is still out there and hasn't been caught?

Judy,

Ah, you're teasing us here, aren't you. As you well know, Karl Rowe is pushing the tried and true method of all dictatorial regimes: FEAR. Fear of the other, fear of the unknown, fear of the enemy perpetual.

fhaber
January 21st, 2006, 02:46 PM
I've been directing friends and acquaintances to the text of M v. M for nearly two years now, to the great detriment of my cocktail-party badinage. I don't care. It's wakeup time.

Of course three Bushies plus Scalia pere and Thomas will be more than enough to toady their way through many, many cases, even without having to consider constitutionally awkward stuff like who burned the Reichstag, whether Hindenburg's actions were really legal, a Unitary Chancellorship, etc.

Yes, I'm starting to play that card. Warranted, I think.

Judy G. Russell
January 21st, 2006, 06:30 PM
It's this "enemy perpetual" part that has me really worried. You can justify anything on the basis of a nameless, faceless enemy.

Judy G. Russell
January 21st, 2006, 06:30 PM
I've been directing friends and acquaintances to the text of M v. M for nearly two years now, to the great detriment of my cocktail-party badinage. I don't care. It's wakeup time.People seem to sleep through just about anything. But I sure wish they'd wake up and at least notice that their houses are burning!

Mike Landi
January 21st, 2006, 08:37 PM
It is emphatically the province and duty of the judicial department to say what the law is.

I remember studying this, but I also remember my Social Studies teacher saying that the legislative branch "makes the laws", the executive branch "enforces the law" and the judicial branch "interprets the law".

If I remember my 5th to 7th grade history, 'Marbury v. Madison' was a controversial decision that established that the courts had final authority over what legislation means and how it is enforced. Until that point, the courts only made decisions within the bounds of the acts passed by legislatures, and were limited to only those statutes.

Is that how it is considered today?

Judy G. Russell
January 21st, 2006, 08:48 PM
If I remember my 5th to 7th grade history, 'Marbury v. Madison' was a controversial decision that established that the courts had final authority over what legislation means and how it is enforced. Until that point, the courts only made decisions within the bounds of the acts passed by legislatures, and were limited to only those statutes. Is that how it is considered today?It's a little hard to say what courts had done before Marbury, since the whole country was only a few years old. It certainly was controversial, since it established not only that the Legislature's acts were subject to judicial review but also that the Executive's non-political acts were subject to judicial review. Those concepts are hardly controversial today; the notion that the Courts have the paramount authority to review the acts of the other two branches is old hat these days.

In the 200+ years since Marbury, there have been a few efforts to kick around the balance of power (Roosevelt's attempt to pack the Court, for one) but never has there been such a concentrated effort to say that the executive has unreviewable powers (except maybe under Nixon, though at least I think Nixon realized he was skating the thin edge of legality).

Lindsey
January 22nd, 2006, 01:12 AM
It's this "enemy perpetual" part that has me really worried. You can justify anything on the basis of a nameless, faceless enemy.

"No nation can preserve its freedom in the midst of continual warfare.

--James Madison, from "Political Observations," 1795

More words of wisdom from James Madison:

"The means of defense against foreign danger historically have become instruments of tyranny at home."

"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."
(writing to Thomas Jefferson, May 13, 1798)

"If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy."
(while a U.S. Congressman)

--Lindsey

Mike Landi
January 22nd, 2006, 10:33 AM
but never has there been such a concentrated effort to say that the executive has unreviewable powers (except maybe under Nixon, though at least I think Nixon realized he was skating the thin edge of legality).

If I remember, Lincoln did some pretty harsh things that were eventually ruled unconstitutional.

RayB (France)
January 22nd, 2006, 10:57 AM
It's a little hard to say what courts had done before Marbury, since the whole country was only a few years old. It certainly was controversial, since it established not only that the Legislature's acts were subject to judicial review but also that the Executive's non-political acts were subject to judicial review. Those concepts are hardly controversial today; the notion that the Courts have the paramount authority to review the acts of the other two branches is old hat these days.

In the 200+ years since Marbury, there have been a few efforts to kick around the balance of power (Roosevelt's attempt to pack the Court, for one) but never has there been such a concentrated effort to say that the executive has unreviewable powers (except maybe under Nixon, though at least I think Nixon realized he was skating the thin edge of legality).

Why is no action being taken?

Judy G. Russell
January 22nd, 2006, 11:33 AM
It's very easy to keep people from focusing on what you're doing as long as you keep them focusing on some enemy...

Judy G. Russell
January 22nd, 2006, 11:35 AM
He did. Among other things, he suspended the writ of habeas corpus (one way that someone in custody can get access to the courts). That was ruled unconstitutional TWICE.

Judy G. Russell
January 22nd, 2006, 11:36 AM
Action is being taken. There are lawsuits being filed to challenge the wiretapping of American citizens, and some Congresscritters are holding hearings. But it's very hard to defend against these sorts of things when the President refuses to provide hard information, and keeps trumpeting that we're in "a war against terror" such that the average guy on the street doesn't know who/what to believe.

Mike Landi
January 22nd, 2006, 08:26 PM
I never understood that one. I assume it was aimed at Confederate sympathizers?

Judy G. Russell
January 22nd, 2006, 09:58 PM
I never understood that one. I assume it was aimed at Confederate sympathizers?Yep. In particular, a Marylander by the name of Merryman even raised a company of troops to fight for the South.

ndebord
January 22nd, 2006, 11:07 PM
Action is being taken. There are lawsuits being filed to challenge the wiretapping of American citizens, and some Congresscritters are holding hearings. But it's very hard to defend against these sorts of things when the President refuses to provide hard information, and keeps trumpeting that we're in "a war against terror" such that the average guy on the street doesn't know who/what to believe.

Judy,

What bothers me most about this erosion of the rule of law is the prospect that the Republican Party seemingly has decided to embrace a view of the Constitution not embedded in law, but merely in a political tract, e.g., the Federalist Papers.

I refer here to an issue I'm not particularly conversant with, so I cribbed with this URL:

http://writ.news.findlaw.com/commentary/20060109_bergen.html

Lindsey
January 22nd, 2006, 11:34 PM
If I remember, Lincoln did some pretty harsh things that were eventually ruled unconstitutional.
But Lincoln never claimed that his actions were not subject to review by the Supreme Court, nor, so far as I am aware, that Congress had no power to pass legislation that regarding his actions.

--Lindsey

Lindsey
January 22nd, 2006, 11:44 PM
I never understood that one. I assume it was aimed at Confederate sympathizers?
You have to remember the situation that existed in Washington during the Civil War. The city was surrounded by Confederate sympathizers, and spies abounded within the city itself. Washington was in real danger of falling into Confederate hands for most of the war. I'm not defending Lincoln's suspension of habeas corpus, because under the Constitution, only the Congress has the power to do that. But he was operating under the most serious existential threat this country has ever faced (9/11 truly pales in comparison), and I think the record is clear that he wasn't simply going power-mad. I'm prepared to forgive him for stepping outside the line, especially since it wasn't entirely clear until AFTER those court cases were decided (both of them after Lincoln was dead, I believe) just where the line was.

--Lindsey

Lindsey
January 22nd, 2006, 11:56 PM
the prospect that the Republican Party seemingly has decided to embrace a view of the Constitution not embedded in law, but merely in a political tract, e.g., the Federalist Papers.
How do you come to the conclusion that this "unitary executive" idea comes out of the Federalist Papers?

--Lindsey

Judy G. Russell
January 23rd, 2006, 12:56 AM
I think you mistake the source of this thinking, Nick. Even the URL article you cited makes it clear that the Federalist Papers do not embrace the notion of a unitary executive power:

Separation of powers, then, is not simply a talisman: It is the foundation of our system. James Madison wrote in The Federalist Papers, No. 47, that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Mike Landi
January 23rd, 2006, 10:53 AM
So, back to your original post, the Supreme Court will have to rule on this and that ruling will set a modern precedent for the limits of the executive. Right?

Judy G. Russell
January 23rd, 2006, 11:26 AM
The problem here is that the President is taking the position that his actions CAN'T be reviewed by the judiciary -- that what he is doing is solely a matter of executive power without any judicial review whatsoever.

I certainly hope the courts will take a different view, but there are procedural problems even with getting the issues before the courts. For example, Jose Padilla's detention in military custody without charges was all set to be reviewed by the Supreme Court when "all of a sudden" civilian charges were pressed and he was transferred into civilian custody. That technically renders his case moot, and the courts can (and very well may) duck the issue by relying on the doctrine of mootness (they generally don't decide cases when they're moot). In the case of the electronic surveillance, the courts could (and again very well may) take the position that the only people who have the legal right (standing) to complain are those who have personally been injured, and since nobody can prove that he/she has been injured (because there's no proof as to who was wiretapped), nobody will have standing. In the case of Bush's position that he can ignore the new legislation on not torturing detainees and prisoners, who's going to be in a position to complain?

It's very scary.

Mike Landi
January 23rd, 2006, 12:16 PM
In the case of the electronic surveillance, the courts could (and again very well may) take the position that the only people who have the legal right (standing) to complain are those who have personally been injured, and since nobody can prove that he/she has been injured (because there's no proof as to who was wiretapped), nobody will have standing.

Is there some mechanism where the legislative branch can bring suit, or is that known by another name...impeachment?

In the case of Bush's position that he can ignore the new legislation on not torturing detainees and prisoners, who's going to be in a position to complain?

Is it constitutional to have Congress pass legislation that dictates how the executive branch can exercise its powers? I thought the power Congress has would be to defund a department or, again impeach a member of the executive branch.

ndebord
January 23rd, 2006, 01:42 PM
I think you mistake the source of this thinking, Nick. Even the URL article you cited makes it clear that the Federalist Papers do not embrace the notion of a unitary executive power:

Judy,

Yup, my mistake. So what is the unitary argument in its essence. I read this (paraphrased from multiple sources):

When you look at States vs Federal rights you see that the Constitution states that states may not "engage" in war, while Congress only has the power to "declare" war. One of the arguments of the unitary proponents is the difference between "engage" and "declare" to argue that If the Founders had wanted the President to not have the power to "engage" in war, they would have given the Congress that power explicitly, or so the argument goes.

Judy G. Russell
January 23rd, 2006, 06:01 PM
Is there some mechanism where the legislative branch can bring suit, or is that known by another name...impeachment?That's an interesting question. Certainly one way to force the executive to obey the laws is to remove him from office when he doesn't, so impeachment is the biggest hammer Congress has. Second to that might be the spending power. Third would be the Congressional power to hold public hearings and pass laws expressly barring an executive from acting in a particular way. Lawsuits are wayyyy down on the list of ways to proceed because, again, you have to have legal standing (in Constitutional terms, there must be an actual case or controversy) and a Congresscritter (or more of them) generally would not be held to have standing.

Is it constitutional to have Congress pass legislation that dictates how the executive branch can exercise its powers? I thought the power Congress has would be to defund a department or, again impeach a member of the executive branch.In the sphere of purely political matters (such as, for example, who a President chooses to hold an office that doesn't require the advice and consent of the Senate), Marbury v Madison suggests not: Congress can't interfere with that exercise of executive powers. When it comes to how the executive executes the laws passed by Congress, then yes it is constitutional and in fact most of the powers of the executive come from his duty to faithfully execute the laws passed by Congress. Remember that the independent power of the executive (i.e., the power to do anything other than "take care that the laws be faithfully executed") is constrained by the Constitution to fairly narrow grounds:

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Judy G. Russell
January 23rd, 2006, 06:08 PM
As I understand it, the substantive theory of the unitary executive is that a U.S. President in the exercise of his Constitutional war powers can not be restrained by any law, national or international. And, of course, that the President decides when he's using his war power, as opposed to any other grant of authority.

Lindsey
January 24th, 2006, 12:37 AM
For example, Jose Padilla's detention in military custody without charges was all set to be reviewed by the Supreme Court when "all of a sudden" civilian charges were pressed and he was transferred into civilian custody. That technically renders his case moot
Which is exactly why the Fourth Circuit refused to allow the government to switch him to civilian detention, with Michael Luttig, of all people, writing a stinging rebuke of the Bush administration's shenanigans. He seems to have concluded they were gaming the system, and he obviously didn't take kindly to that. Too bad the Supremes didn't go along with him. And too bad Alito edged him out for the nomination to fill O'Connor's slot. :(

--Lindsey

Lindsey
January 24th, 2006, 12:47 AM
Certainly one way to force the executive to obey the laws is to remove him from office when he doesn't, so impeachment is the biggest hammer Congress has.
It's also a fairly blunt instrument. But one other way to punish the President besides what you have mentioned is simply to delay or even reuse to pass his legislative programs. The president has to depend on Congress to enact the measures he thinks necessary to achieve his goals as president, and if he gets the Congress (or even just one house of it) pissed enough with him, he could find he is unable to get anything accomplished.

Whether the "my party, right or wrong" Congressional Republicans would be willing to break with the president to that extent remains to be seen. That probably partly depends on whether they think the public will punish them at the polls for the president's misdeeds.

--Lindsey

Judy G. Russell
January 24th, 2006, 01:43 AM
I'm not sure Luttig would have been better. I'm not sure he was truly concerned about the legal issue of detention as opposed to the question of "why did you waste my time with this when you knew you were going to do this?"

Judy G. Russell
January 24th, 2006, 01:44 AM
I'm not sure even a Congress that refuses to adopt a President's agenda would have an effect on a President who is convinced that ... sigh ... God has told him what to do.

Mike Landi
January 24th, 2006, 10:00 AM
the independent power of the executive (i.e., the power to do anything other than "take care that the laws be faithfully executed") is constrained by the Constitution to fairly narrow grounds:

Okay, the Constitution defines the powers of the president, but gives the president complete authority over the armed forces.

For the eavesdropping debate, if the president has authorized eavesdropping for the purpose of gathering military intelligence, that would be constitutional, right? But, if the information gained is turned over to a prosecutor for a criminal complaint, that would be unconstitutional (assuming no warrant was issued.)

For the torture question, if the president authorizes these actions on non-citizens, outside of US territory, does that fall under his "commander-in-chief" power?

Judy G. Russell
January 24th, 2006, 11:28 AM
Okay, the Constitution defines the powers of the president, but gives the president complete authority over the armed forces. For the eavesdropping debate, if the president has authorized eavesdropping for the purpose of gathering military intelligence, that would be constitutional, right? But, if the information gained is turned over to a prosecutor for a criminal complaint, that would be unconstitutional (assuming no warrant was issued.)That's certainly the argument of the President. But it's not that simple. Eavesdropping is also limited by specific Congressional enactments, including one called the Foreign Intelligence Surveillance Act that requires a warrant from a special court every time the eavesdropping involves an American citizen. The statute does not contain exceptions for a "war against terror". What the President is saying is that he doesn't have to obey any other laws if he (and he alone) concludes that something is necessary to prosecute this "war against terror". That's ... to put it mildly ... highly debatable.

For the torture question, if the president authorizes these actions on non-citizens, outside of US territory, does that fall under his "commander-in-chief" power?Again, there are specific laws including this most recently-enacted McCain amendment that say NO. No torture, period. But in signing that law, Bush said he was signing it with the idea in mind that there are limits on the power of Congress to restrict his authority and limits on the power of the courts to review what he does. Again his position is highly debatable.

Mike Landi
January 24th, 2006, 01:13 PM
one called the Foreign Intelligence Surveillance Act that requires a warrant from a special court every time the eavesdropping involves an American citizen.

That I've heard mentioned and it seems to be the center of the argument. What happens when a phone call or email is international? Does the FISA act cover international surveillance? If the surveillance is intranational (inside the country), then I see that the president is out of bounds. But, when the communication is outside country, does the FISA act control the president?

Bush said he was signing it with the idea in mind that there are limits on the power of Congress to restrict his authority and limits on the power of the courts to review what he does. Again his position is highly debatable.

Where in the Constitution does it give the president the authority to issue such "action statements"? Doesn't his signing of the law acknowledge his acquiescence?

Judy G. Russell
January 24th, 2006, 01:57 PM
What happens when a phone call or email is international? Does the FISA act cover international surveillance? If the surveillance is intranational (inside the country), then I see that the president is out of bounds. But, when the communication is outside country, does the FISA act control the president?Where is it entirely outside the country, the act does not control the President. The issue is about whether it controls the President when one person is inside the US and is a US citizen or permanent resident alien. The statute in that case appears to control; the President's position is that it doesn't because the Congressional resolution authorizing the use of "all necessary and appropriate force" to engage militarily those responsible for the terrorist attacks of September 11, 2001 overrides the FISA.

Where in the Constitution does it give the president the authority to issue such "action statements"? Doesn't his signing of the law acknowledge his acquiescence?That's the issue: the President says he has the right to effectively amend statutes by signing them with this limitation language, and nowhere in the Constitution is there even a hint that such a right exists.

Mike Landi
January 24th, 2006, 02:46 PM
the Congressional resolution authorizing the use of "all necessary and appropriate force" to engage militarily those responsible for the terrorist attacks of September 11, 2001 overrides the FISA.

So, Congress could pass a resolution sunsetting that resolution, no?

the President says he has the right to effectively amend statutes by signing them with this limitation language, and nowhere in the Constitution is there even a hint that such a right exists.

So in that case, could not Congress file suit claiming that the executive is acting without authority. In a sense, the legislature could as the judiciary to decide the question where the two other branches disagree on executive power. It sounds like there is no mechanism for this.

Judy G. Russell
January 24th, 2006, 05:57 PM
So, Congress could pass a resolution sunsetting that resolution, no?Yep. Or amending it. And in any case there's a question whether it even applies.

So in that case, could not Congress file suit claiming that the executive is acting without authority. In a sense, the legislature could as the judiciary to decide the question where the two other branches disagree on executive power. It sounds like there is no mechanism for this.There's still a problem with that thing called "standing". The Constitution requires that all parties to federal lawsuits be part of what's called a "case or controversy" -- meaning that the plaintiffs and defendants have a real and genuine personal stake in the outcome of the case. A congresscritter generally isn't personally injured by the failure of the President to abide by a statute.

Mike Landi
January 24th, 2006, 08:21 PM
There's still a problem with that thing called "standing". The Constitution requires that all parties to federal lawsuits be part of what's called a "case or controversy" -- meaning that the plaintiffs and defendants have a real and genuine personal stake in the outcome of the case.

I have to get my mind around this. I always thought (obviously was not taught) that one the legislative and executive branches could petition the court to settle disputes.

In NY (not the best example of functional government), the legislature has sued the executive over budget matters, funding of executive programs or executive actions (such as line item vetoing and Indian treaty matters) and the Court of Appeals (the highest appeals court in NY) rules on the questions.

I assumed that the federal system worked in a similar fashion.

Judy G. Russell
January 24th, 2006, 09:06 PM
Most states don't have the case-or-controversy limitations in their state constitutions, so the ability to sue is a little easier. In addition, state courts are generally considered courts of general jurisdiction while all federal courts are courts of limited jurisdiction (they can only hear the specific types of cases the constitution allows). But I suspect that even in NY, while one or more members of the Legislature may join with the plaintiffs, the real plaintiffs in most of those lawsuits are people who claim they would personally be hurt by some action.

MollyM/CA
January 24th, 2006, 09:18 PM
I suppose it would be against our charter to post M v M stickily here? Then we would have to hunt for it when we wanted to upgrade our cocktail party badinage (what cocktail parties? This is the Central Valley!).

Mike Landi
January 24th, 2006, 09:28 PM
I suspect that even in NY, while one or more members of the Legislature may join with the plaintiffs, the real plaintiffs in most of those lawsuits are people who claim they would personally be hurt by some action.

This is where your education, training and experience puts me at a disadvantage. I don't know about that distinction.

I think about this with a sense of "common citizen" and what would "make sense".

Silly, I know...especially w/r/t politicians.

Lindsey
January 25th, 2006, 12:13 AM
I'm not sure he was truly concerned about the legal issue of detention as opposed to the question of "why did you waste my time with this when you knew you were going to do this?"
Well, you may have something there...

--Lindsey

Lindsey
January 25th, 2006, 12:17 AM
I'm not sure even a Congress that refuses to adopt a President's agenda would have an effect on a President who is convinced that ... sigh ... God has told him what to do.
If he's truly that much out of control, then we're dealing with a form of insanity. But I'm not sure I'd prefer to invoke the 25th Amendment and end up with ... President Cheney. :eek:

--Lindsey

Lindsey
January 25th, 2006, 12:29 AM
Okay, the Constitution defines the powers of the president, but gives the president complete authority over the armed forces.
Actually, no, it doesn't give the president complete authority over the armed forces. It names the president as commander-in-chief, but Article I allocates the following powers to the Congress:


To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;


That seems to me to give considerable authority to Congress regarding the handling of the military. And to indicate that Congress is entirely within its rights to say that the military cannot torture prisoners under its control. Those would be "rules concerning the government and regulation of the land and naval forces."

--Lindsey

Judy G. Russell
January 25th, 2006, 12:35 AM
... President Cheney. :eek: AIIIEEEEEE!!!!!!!

Judy G. Russell
January 25th, 2006, 12:36 AM
Actually, the system does pretty much make sense.

Most of the time.

Well, every so often, at least.

Lindsey
January 25th, 2006, 12:47 AM
That's the issue: the President says he has the right to effectively amend statutes by signing them with this limitation language, and nowhere in the Constitution is there even a hint that such a right exists.
And there's ample reason in the Constitution to believe that it does not. The only explicit power the Constitution gives the president over a bill that has been passed by Congress is to veto it. That sends the bill back to the Congress, which may override the veto with a 2/3 vote in each house and the bill becomes law in spite of the veto. A bill also becomes law if the president does not sign it within 10 days of receiving it (Sundays excepted), unless Congress had adjourned in the meantime.

So the argument that the approval of the president is just as critical to the passage of a bill as that of the Congress is simply nonsense. The Constitution gives the last word on legislation to Congress, and amendment-by-signing-statement violates that principle. Besides, Congress can enact legislation entirely on its own, given sufficient support in the body for it. The president cannot.

--Lindsey

Judy G. Russell
January 25th, 2006, 02:01 AM
There's more than enough evidence to say that amendment by saying something when the President signs it just ain't so. But then the Court gets to say what IS so... and this Court is scary, and about to get scarier.

ndebord
January 25th, 2006, 01:08 PM
There's more than enough evidence to say that amendment by saying something when the President signs it just ain't so. But then the Court gets to say what IS so... and this Court is scary, and about to get scarier.

Judy,

Yup. Today's straw poll says a minimum of 51 votes are there to confirm Allito. Fifty conservative Republicans and one Democrat, Nelson from Nebraska.

Mike Landi
January 25th, 2006, 01:42 PM
Actually, the system does pretty much make sense.

Most of the time.

Well, every so often, at least.

You don't sound very encouraging. <g>

Judy G. Russell
January 25th, 2006, 03:10 PM
"Encouraging" and "politicians" aren't words often used in the same sentence.

Judy G. Russell
January 25th, 2006, 03:11 PM
I never thought for a minute there wouldn't be enough votes to confirm him.

Mike Landi
January 25th, 2006, 03:15 PM
"Encouraging" and "politicians" aren't words often used in the same sentence.


...and putting the former in front of the latter is very dangerous.

Judy G. Russell
January 26th, 2006, 12:40 AM
Putting ANYTHING in front of the latter is very dangerous!!!

RayB (France)
January 26th, 2006, 04:00 AM
"Encouraging" and "politicians" aren't words often used in the same sentence.

Might as well through 'Lawyers' in since most politicians are.

Mike Landi
January 26th, 2006, 09:51 AM
Putting ANYTHING in front of the latter is very dangerous!!!

...including a subpoena.

Judy G. Russell
January 26th, 2006, 01:29 PM
ROFL!!!!!!!!!!!!!!!

Judy G. Russell
January 26th, 2006, 01:29 PM
Hey! Hey! Be nice now! Most lawyers are NOT politicians!

RayB (France)
January 26th, 2006, 03:37 PM
I never thought for a minute there wouldn't be enough votes to confirm him.

As far as expanding the prez's powers, if they were indeed expanded, I assume that the next Dem Pres (should that ever happen) would immediately ' turn them back in' and not take advantage of them. Right?

Lindsey
January 26th, 2006, 07:11 PM
As far as expanding the prez's powers, if they were indeed expanded, I assume that the next Dem Pres (should that ever happen) would immediately ' turn them back in' and not take advantage of them. Right?
You're missing the point -- that being that it is not up to the PRESIDENT to determine what powers he does and does not have. That's laid out in the Constitution, which the president is sworn to defend (even if he seems to have forgotten that).

--Lindsey

ktinkel
January 26th, 2006, 08:52 PM
… t is not up to the PRESIDENT to determine what powers he does and does not have. That's laid out in the Constitution, which the president is sworn to defend (even if he seems to have forgotten that).Even if this president seems to have forgotten that!

rlohmann
January 26th, 2006, 08:56 PM
Of course three Bushies plus Scalia pere and Thomas will be more than enough to toady their way through many, many cases, even without having to consider constitutionally awkward stuff like who burned the Reichstag, whether Hindenburg's actions were really legal, a Unitary Chancellorship, etc.

Yes, I'm starting to play that card. Warranted, I think.You might want to be careful about doing that unless you're quite sure what's on the face of the card.

Nobody knows for certain who burned the Reichstag, so I'm not sure what the significance of that observation is supposed to be.

With respect to Hindenburg's actions, I'm not sure which one(s) you're referring to. His appointment of Hitler as Chancellor, while appallingly stupid, was fully in accord with Article 53 of the Weimar Constitution, http://tinyurl.com/9ysz3). Hitler's unification of the chancellorship and presidency was a clear violation of Article 44 of that Constitution, but I fail to see the relevance of that to anything Bush is alleged to have done.

The point of this is not so much that trying to compare Bush to Hitler is silly, but that by doing so, you attempt to reduce a conflict of significant values to black and white by means of pseudohistorical quips.

It doesn't fly.

While some on the side opposite to yours have pointed out that dead Americans have no constitutional rights at all, I find that dangerously oversimplified also, although it does articulate an interest you do not appear to perceive.

I don't agree with everything Bush is doing, but it might be helpful to keep in mind that the constitutional tension between the powers of government and the rights of the citizens are based on the unspoken assumption that the government is overwhelmingly more powerful than the citizens, and that there must be some countervailing force to protect citizens from that power.

Now, as was the case when President Lincoln suspended the writ of habeas corpus (over the objections of Chief Justice Taney, who wrote the majority opinion in Dred Scott v. Sandford), the conflict is not between the government and the citizens, but rather between the government and the citizens on one side, and an outside enemy on the other.

Further, the enemy does not comply with the Geneva Conventions that so many of Bush's opponents point to and so few have read. Rather, it seeks to infiltrate the territory of the Republic without uniforms or such other markings as distinguish, in the language of those Conventions, combattants from non-combattants.

This war just isn't as simple as WWII, where even the kamikaze pilots wore uniforms and flew aircraft marked with their national insignia.

Bush is no saint, but those who think he's Satan incarnate need to do a little more thinking. The issues just aren't as simple as Nancy Pelosi thinks they are.

Judy G. Russell
January 27th, 2006, 12:27 AM
Unlikely. All chief executives seem to have a thing for jealously and zealousy guarding what they consider to be the powers of the office... even when they're just plain flat out dead wrong. So if the tripartite system is to survive, the other branches have GOT to act as the checks and balances they were created to be.

Jeff
January 27th, 2006, 02:16 PM
The point of this is not so much that trying to compare Bush to Hitler is silly, but that by doing so, you attempt to reduce a conflict of significant values to black and white by means of pseudohistorical quips.


Ah Ralph, what are you going on about? Hitler was not mentioned. Hyperbole is not to be taken literally or seriously. Or you can, like teaching pigs to fly and sing with about the same result.

- Jeff

RayB (France)
January 27th, 2006, 04:14 PM
You're missing the point -- that being that it is not up to the PRESIDENT to determine what powers he does and does not have. That's laid out in the Constitution, which the president is sworn to defend (even if he seems to have forgotten that).

--Lindsey

Is that a 'yes' or a 'no'?

Ray

fhaber
January 27th, 2006, 04:37 PM
Ah, but Hitler was both implied and inferred, and Ralph caught it, as he was supposed to.

fhaber
January 27th, 2006, 04:41 PM
I am so glad I got your attention. The reference was metaphorical, and the implied comparison was intended to provoke thought. I reserve the right to be as allusive as I wish.

Bush is merely the affable front for something we must all resist, possibly with all our power. This shall develop as it develops.

I have seen the face of Evil Incarnate, and It is a frat boy, and It blathers.

rlohmann
January 27th, 2006, 06:32 PM
Ah Ralph, what are you going on about? Hitler was not mentioned.Of course three Bushies plus Scalia pere and Thomas will be more than enough to toady their way through many, many cases, even without having to consider constitutionally awkward stuff like who burned the Reichstag, whether Hindenburg's actions were really legal, a Unitary Chancellorship, etc.

Yes, I'm starting to play that card. Warranted, I think.Whom, and what set of circumstances, do you think Frank was referring to?

rlohmann
January 27th, 2006, 06:58 PM
I am so glad I got your attention.<sneering wearily>

The reference was metaphorical,Don't you mean "rhetorical"?

and the implied comparison was intended to provoke thought. What kind?

Bush is merely the affable front for something we must all resist, possibly with all our power.See below.

I have seen the face of Evil Incarnate, and It is a frat boy, and It blathers.And that, I take it, is your allusion du jour.

Highly theoretical. You must have been a Central Committee member in a previous incarnation.

I have spent 40 years inside the Leviathan. During that time, I have seen behavior on the part of government personnel, both military and civilian, that is mendacious, vicious, cowardly, dishonest, underhanded, and aggressively stupid beyond the capacity of most people to comprehend. It is from that perspective that I look at government and still consider most of those who are calling for Bush's head to be heartbreakingly naïve. (The rest, of course, know exactly what they're doing.)

Even given that, the other side is infinitely worse.

rlohmann
January 27th, 2006, 07:06 PM
In the case of Bush's position that he can ignore the new legislation on not torturing detainees and prisoners, who's going to be in a position to complain?I have yet to see evidence of any kind to show that Bush is torturing prisoners.

The Moore/Sheehan cabal that insists that he is likes to trot out that picture of the guy standing on the box with the wires attached and the hood over his head. However, nobody has ever disputed the Army's explanation that the perp was told that he'd be electrocuted if he stepped off the box, but that the wires in fact were not connected to anything.

Maybe now that Miz Rodham-Clinton is ramping up her 2008 presidential campaign, it could be that they're forcing the evildoers to listen to her speeches, but there's no proof that that's happening, either.

rlohmann
January 27th, 2006, 07:22 PM
You're missing the point -- that being that it is not up to the PRESIDENT to determine what powers he does and does not have. That's laid out in the Constitution, which the president is sworn to defend (even if he seems to have forgotten that).There you go again. :)

The Constitution, as is apparent to anyone who's read it, is a startlingly imprecise document. It fails to address a number of actions a president might or might not be inclined to take in any given circumstance.

Consequently, presidents have done things that no strict reading of the Constitution provides for. (Lend-Lease comes to mind as an example long before Bush, as do Truman's postwar takeovers of the railroads and coal mines). Different presidents, and their political opponents, have different views of the extent of presidential powers.

You are entitled to interpret the Constitution as you please, but you should not argue that nobody else's interpretation has any validity.

rlohmann
January 27th, 2006, 07:31 PM
But Lincoln] was operating under the most serious existential threat this country has ever faced (9/11 truly pales in comparison) "9/11 truly pales in comparison."

That's an extraordinary statement.

Are you saying that after 9/11 the threat to the United States went away, or are you suggesting that the worldwide increase in terrorism directed since then at the US, Israel, and those who support--or are perceived to support--them is merely a series of annoying pinpricks?

You might want to clarify that.

Lindsey
January 27th, 2006, 10:21 PM
Even if this president seems to have forgotten that!
Yes, yes -- that's what I meant!

--Lindsey

Lindsey
January 27th, 2006, 10:26 PM
Is that a 'yes' or a 'no'?
Have you stopped beating your wife? Please answer "yes" or "no".

--Lindsey

Lindsey
January 27th, 2006, 10:30 PM
I still say that the president is not the final arbiter of what powers he does and does not have.

--Lindsey

Lindsey
January 27th, 2006, 10:38 PM
That's an extraordinary statement.
No, I don't think it is. The destruction of the World Trade Center, terrible as it was, was not going to destroy the country. The Civil War could have. And George W. Bush just might. (And people wondered why I was upset at the result of Bush v Gore. "Well hey, how much harm can he do in 4 years with no popular mandate?" A lot, obviously -- as I pointed out at the time. And even then I had no idea how bad it would be.)

And you might consider the fact that the dramatic increase in worldwide terrorism came about AFTER Bush's invasion of Iraq.

--Lindsey

ndebord
January 28th, 2006, 01:10 AM
"9/11 truly pales in comparison."

That's an extraordinary statement.

Are you saying that after 9/11 the threat to the United States went away, or are you suggesting that the worldwide increase in terrorism directed since then at the US, Israel, and those who support--or are perceived to support--them is merely a series of annoying pinpricks?

You might want to clarify that.

Ralph,

I would argue that after this President pulled the SOG out of Afghanistan and put them in Western Iraq for that little war there that we lost any chance we had of making Bin Laden become just a hiccup in history. Now he's the second coming for radical Islam and we coulda, shoulda had him and nipped this thing in the bud.

Judy G. Russell
January 28th, 2006, 09:23 AM
And what, pray tell, is "the other side"? Al Qaeda? Or the people who think perhaps mixing a dash of civil liberties into our daily lives isn't such a bad idea?

Judy G. Russell
January 28th, 2006, 09:27 AM
I think the fact that there have been deaths during interrogations (and only low level slaps on the hand in response) answers that question.

RayB (France)
January 28th, 2006, 02:56 PM
Have you stopped beating your wife? Please answer "yes" or "no".

--Lindsey

Yes, now that she has accepted our superiorty as males. Now answer my questions with as much honesty.

Jeff
January 28th, 2006, 02:56 PM
Whom, and what set of circumstances, do you think Frank was referring to?

A government out of control. From which arose or was propelled a dictator. The former is to be feared, as the latter is simply a result.

- Jeff

rlohmann
January 28th, 2006, 08:23 PM
Al Qaeda. I apologize for being insufficiently clear, perhaps from an obvious temptation to engage in rhetoric.

As bad as the government is--and I saw it from JFK to W on the political side, and thousands of military and civilian evildoers on the career side--it is much to be preferred over its vurrent enemies. A few people seem to be missing that point.

I don't consider those who advocate "a dash of civil liberties," as enemies. I do consider the more extreme of them to be "useful idiots" from the perspective of a cave in Afghanistan.

As I pointed out earlier--perhaps you weren't paying attention--our system is based on a fear, well grounded in normal circumstances, that the government is so much more powerful than the citizens that it needs to have one hand tied behind its back. As I also pointed out, the numbers on the other side of the equation have changed.

Maybe we should encourage the ACLU to sue bin Laden. That would sober him up.

rlohmann
January 28th, 2006, 08:27 PM
You and I appear to have slightly different perceptions about how government works in this country. Are you actually suggesting that it would in fact be unlawful for a president to do anything not specifically set forth in the Constitution?

rlohmann
January 28th, 2006, 08:30 PM
Now he's the second coming for radical Islam and we coulda, shoulda had him and nipped this thing in the bud.IIRC, it was Mr. Clinton who had that chance. The Somalis were trying to hand him to us, but Clinton, for whatever reason, turned them down.

How quickly we forget.

rlohmann
January 28th, 2006, 08:34 PM
People captured in combat often die, even if they're treated politely in captivity. The mere fact that "there have been deaths" is a pretty poor basis for the conclusion that they were tortured to death.

Do you have any better evidence than that, or have you just been watching too much Michael Moore lately?

ndebord
January 28th, 2006, 10:31 PM
IIRC, it was Mr. Clinton who had that chance. The Somalis were trying to hand him to us, but Clinton, for whatever reason, turned them down.

How quickly we forget.

Ralph,

You'll get no argument from me that Clinton dropped the ball on that one. But you ignore the fact that Bush dropped a bigger ball this time around. After all, when Clinton tried to get Bin Laden, he was still a 3rd-rate bit player. After 9/11, he moved up to numero uno on the FBI's most wanted list and therefore it was on Bush's watch that the ball was dropped big time, or perhaps you ignore that point because you like how Bush has handled his job responsibilities?

Lindsey
January 28th, 2006, 11:41 PM
Yes, now that she has accepted our superiorty as males. Now answer my questions with as much honesty.
So -- you are a confessed wife-beater?

--Lindsey

Lindsey
January 28th, 2006, 11:47 PM
Are you actually suggesting that it would in fact be unlawful for a president to do anything not specifically set forth in the Constitution?
No, I didn't say that. But I see no basis for the claim that the office of the president should be ascendent over the other two branches, nor do I see any basis for the claim that the president, and the president alone, can determine what powers he does and does not have. I do believe those sorts of assertions have been slapped down by the Supreme Court on more than one occasion, most recently in a decision written by Sandra Day O'Connor in which she said that a condition of war is not a blank check for the president to do what he pleases.

--Lindsey

Lindsey
January 28th, 2006, 11:56 PM
How quickly we forget.
Yes, how quickly we forget that that claim has been disproven time and time and time again. And you haven't even gotten the urban legend right. The claim was that Sudan (not the Somalis) had offered to turn over bin Laden to the U.S. But there is NO credible evidence to support that claim. See http://mediamatters.org/items/200406220008 The Sudanese evidently offered to turn him over to Saudi Arabia; the Saudis refused to take him. They did not offer him to the United States.

You really need to stop relying on NewsMax.com.

--Lindsey

Judy G. Russell
January 29th, 2006, 01:03 PM
The issue isn't whether Al Qaeda is an enemy or even how dangerous Al Qaeda might be. The issue is whether, in order to deal with Al Qaeda, we must do things in a way that puts civil liberties at risk. It's one thing to say everyone at airports must line up and be searched. It's another to say, well, the FISA Court is inconvenient so we're just going to ignore it and go ahead and wiretap American citizens anyway. The former probably is necessary (although I do believe it's a matter of locking the barn door after the horse has escaped). The latter, I submit, is NOT necessary.

Judy G. Russell
January 29th, 2006, 01:05 PM
You haven't been following the news lately. There have been courts martial (of single individuals, given slaps on the hand) for killing prisoners during interrogations.

Lindsey
January 29th, 2006, 11:52 PM
People captured in combat often die, even if they're treated politely in captivity.
Would you characterize beating a man to the point that his feet swell so badly he can't get his shoes on, binding his hands with an electrical cord, stuffing him headfirst into a sleeping bag, and then sitting on his chest and periodically covering his mouth with your hands, to the point that he suffocates, as "polite treatment"? Because that's the sort of thing we're talking about here. That's what happened to the Iraqi general whose death was the subject of the trial Judy referred to.

--Lindsey

Lindsey
January 30th, 2006, 12:06 AM
You are entitled to interpret the Constitution as you please, but you should not argue that nobody else's interpretation has any validity.
I'm not saying nobody else's interpretation of any provision of the Constitution has any validity. I am saying that every Constitutional scholar I have heard speak on the subject who is not already in bed with the Bush administration is of the opinion that Bush's claim rests on extraordinarily thin ice.

You might be interested in the following open letter to Congress that was published in the New York Review of Books:

http://www.nybooks.com/articles/18650

--Lindsey

rlohmann
January 30th, 2006, 05:18 PM
Ah! The NYRB, that thoughtful, objective, nonpartisan organ of unbiased reporting!

Are these the only constitutional scholars you've been following? :rolleyes:

rlohmann
January 30th, 2006, 05:30 PM
The issue isn't whether Al Qaeda is an enemy or even how dangerous Al Qaeda might be. Well, yeah, actually, it is.

The actions we take against an enemy are pretty much a function of how dangerous that enemy is. A response to a street-corner mugger requires one set of actions; how we respond to combinations that seek to destroy our Country are necessarily very different.

My objections are to those who fail to understand the difference.

rlohmann
January 30th, 2006, 05:40 PM
Am I to interpret this as a determination on your part that the courts-martial, which had the facts of each incident before them, have been in some way biased in favor of the defendants?

If so, please give reasons for your answer.

rlohmann
January 30th, 2006, 05:42 PM
What was the Iraqi general doing when he was captured?

rlohmann
January 30th, 2006, 05:48 PM
This is true. So if a chief executive maintains a good-faith belief that he's right and his opponents are wrong, do you derive criminal misconduct from that belief?

You might want to discuss the implications of an affirmative response.

Judy G. Russell
January 30th, 2006, 10:20 PM
And my objections are to those who think that the mere fact that a dangeous enemy exists justifies anything, necessary or not.

Judy G. Russell
January 30th, 2006, 10:22 PM
From a good-faith belief that he's right? No. From a belief formed in part on the notion that God told him what is right, I have more serious problems.

Judy G. Russell
January 30th, 2006, 10:23 PM
Let's start by having you concede that there has been torture leading to deaths before we get off the subject.

Lindsey
January 30th, 2006, 11:55 PM
Are these the only constitutional scholars you've been following? :rolleyes:
I think they're a pretty impressive group. (And the letter was printed IN the New York Review of Books, but the writers are not EMPLOYED the New York Review of Books.)

--Lindsey

Lindsey
January 31st, 2006, 12:15 AM
What was the Iraqi general doing when he was captured?
What does it matter? What justifies beating a man half to death (the autopsy revealed he had six broken ribs) and then stuffing him into a sleeping bag and suffocating him in the course of an interrogation? That's not interrogation; that's not intelligence gathering; that's just plain torture.

But if you must know, according to the Washington Post, he had voluntarily come to the base to try to negotiate the release of his two sons:

The U.S. military initially told reporters that Mowhoush had been captured during a raid. In reality, he had walked into the Forward Operating Base "Tiger" in Qaim on Nov. 10, 2003, hoping to speak with U.S. commanders to secure the release of his sons, who had been arrested in raids 11 days earlier.
I don't dispute that they were justified in taking him into custody. I do dispute that they were justified in brutalizing him. That's not the kind of country I was brought up to believe that we were.

--Lindsey

ndebord
January 31st, 2006, 12:17 AM
IIRC, it was Mr. Clinton who had that chance. The Somalis were trying to hand him to us, but Clinton, for whatever reason, turned them down.

How quickly we forget.

Ralph,

I must assume from your silence on my previous post, that you do think the Bush Administration is doing a good job in the fight against terrorism or that you are unable to marshall any cogent arguments against my post that Bush has handled this matter poorly.

RayB (France)
January 31st, 2006, 03:47 AM
Ralph,

I must assume from your silence on my previous post, that you do think the Bush Administration is doing a good job in the fight against terrorism or that you are unable to marshall any cogent arguments against my post that Bush has handled this matter poorly.

What would you have done differently and what recommendations do you have for now? (Funny thing is that I never get answers to questions like this from any critic of any topic. Maybe you are the exception. I'm always open to positive suggestion. God knows we could use some.)

earler
January 31st, 2006, 06:32 AM
The nyrb publishes letters at its discretion, and its political agenda has long been far to the left, marxist even. This doesn't detract from the fact that much of what is published is well written when concerning matters other than national politics. Mind you, the reviews can also be suspect. The nyrb is often called the new review of each others' books.

-er

fhaber
January 31st, 2006, 12:10 PM
I am dismayed to find that we agree on how mean and ineffective a bureaucracy can be, no matter how good or bad the Administration above it. I yield to your greater experience with the Stasi, and might even grant that they improved upon the lovely methods of the secret police that preceded them in Germany.

But I shall never concede that the proper answer to a threat is to turn entirely grim and humorless. I don't want to sing coded spirituals, or confine my jokes to the mysteriously allusive, yet ultimately sad ones that must serve the subjects of a totalitarian regime.

So, without a whole lot of relevancy, but in the above spirit of fun, I'll just offer one of today's emails......

"President Bush was scheduled to worship at a small Methodist Church outside
Washington, D.C. as part of Karl Rove's campaign to reverse Bush's rapidly
deteriorating approval ratings. A week before the visit, Rove called on the
Methodist Bishop who was scheduled to preach on the chosen Sunday.

"As you know, Bishop," began Rove, "we've been getting a lot of bad
publicity among Methodists because of the president's position on stem cell
research and the like. We'd gladly arrange for Jack Abramoff's friends to
make a contribution of $100,000 to the church if during your sermon you
would say that President Bush is a saint."

The Bishop thought about it for a few minutes, and finally said, "This
parish is in rather desperate need of funds ... I'll agree to do it."

The following Sunday, Bush showed up for the photo op, looking especially
smug even while attempting to appear pious.

After making a few announcements, the Bishop began his homily:

"George W. Bush is a petty, vindictive, sanctimonious hypocrite and a
nitwit. He is a liar, a cheat, and a low-intelligence weasel with the
world's largest chip on his shoulder. He used every dirty election trick in
the book and still lost, but his toadies in the Supreme Court appointed him.
He lied about his military record in which he used special privilege to
avoid combat, and then had the gall to dress up and pose on an aircraft
carrier before a banner stating "Mission Accomplished."

He invaded a sovereign country for oil and war profiteering, turning Iraq
into a training ground for terrorists who would destroy our country. He
continues to confuse the American people by insisting on a nonexistent
connection between the horrors of 9/11 and the reason he started his war in
Iraq.

He routinely appoints incompetent and unqualified cronies to high- level
federal government positions and as a result, hundreds and hundreds of
Americans died tragically in New Orleans. He lets corporate polluters
despoil God's creation and doom our planet. He uses fear-mongering to
justify warrantless spying on American citizens, in clear violation of our
Constitution. He is so psychotic and megalomaniacal that he believes that he
was chosen by God.

He is the worst example of a Methodist I have ever personally known, But
compared to Dick Cheney and Karl Rove and the rest of the evil fascist
bastards in this administration, George W. Bush is a saint.""

Jeff
January 31st, 2006, 03:02 PM
Oh God yes! I love it.

Lindsey
January 31st, 2006, 06:40 PM
The nyrb publishes letters at its discretion, and its political agenda has long been far to the left, marxist even. This doesn't detract from the fact that much of what is published is well written when concerning matters other than national politics. Mind you, the reviews can also be suspect. The nyrb is often called the new review of each others' books.
So does every other periodical in the country publish letters at its discretion.

Marxist? Yeah, right.

--Lindsey

Lindsey
January 31st, 2006, 06:42 PM
LOL!!

rlohmann
January 31st, 2006, 06:57 PM
(And the letter was printed IN the New York Review of Books, but the writers are not EMPLOYED at the New York Review of Books.)I'm not sure that proves anything except that the writers wanted a choir to preach to.

Lindsey
January 31st, 2006, 06:59 PM
I'm not sure that proves anything except that the writers wanted a choir to preach to.
Their view seems pretty widely held. <shrug>

--Lindsey

rlohmann
January 31st, 2006, 07:09 PM
I am dismayed to find that we agree on how mean and ineffective a bureaucracy can be, no matter how good or bad the Administration above it.Experience compels that conclusion.

But I shall never concede that the proper answer to a threat is to turn entirely grim and humorless.I couldn't agree more.

I don't want to sing coded spirituals, or confine my jokes to the mysteriously allusive, yet ultimately sad ones that must serve the subjects of a totalitarian regime.Not all of them are sad. There's a hilarious book compiled just after the war--Der Flüsterwitz im 3. Reich, now famous in German Lit circles--of Nazi jokes from the Germany of 1933 to 1945.

I think your Bush joke is pretty funny. (I also collect lawyer jokes. :) )

rlohmann
January 31st, 2006, 07:11 PM
If you're attempting a comparison between the present-day US and Weimar Germany, you might want to dust off your history books; such an equation is absurd.

rlohmann
January 31st, 2006, 07:28 PM
In the first place, I'm not entirely sure what "anything" you're referring to. There seems to be a lot of hysteria afoot about what the NSA is doing, and they may indeed be tapping the telephones or intercepting the cell-phone calls of selected individuals. If this is so, I do not know why Bush is not getting warrants for those interceptions. However, the NSA doesn't talk to me, so I'm not sure exactly what they are doing.

Your apparent belief that Bush is guilty of unconstitutional acts is your opinion, with which Bush, it is safe to say, disagrees. Given that, your solution is to bootstrap yourself into some kind of standing and get a court to rule that you're right. You have not done this, and nobody else has, either.

In the second place, what is "necessary" is generally a function of how much information is available to the person defining "necessary." I suggest to you that the President and several other people may have considerably more information than you about what is "necessary."

In the third place, I am beginning to see an equation on the part of some individuals of Bush with Al Qaida, with Bush being the slightly more evil of the two.

Is something wrong here?

rlohmann
January 31st, 2006, 07:32 PM
As does the contrary view.

<sneer>

rlohmann
January 31st, 2006, 07:38 PM
I share your lack of enthusiasm for "faith-based" political initiatives, but I really don't care whether he thinks God wants him to shut down Al Qaida; I want him to shut down Al Qaida.

rlohmann
January 31st, 2006, 07:50 PM
Perhaps the members of the court were a bit closer to the realities of Iraq than the news media. Are courts-martial not permitted to consider matters in extenuation and/or mitigation?

rlohmann
January 31st, 2006, 08:15 PM
What does it matter? What justifies beating a man half to death (the autopsy revealed he had six broken ribs) and then stuffing him into a sleeping bag and suffocating him in the course of an interrogation? That's not interrogation; that's not intelligence gathering; that's just plain torture.I don't excuse it, but your characterization of six broken ribs as "beating a man half to death" strikes me as a bit feverish. That you see stuffing a man into a sleeping bag as "torture" suggests that your experience with torture is limited. Count yourself fortunate and think about why.

But if you must know, according to the Washington Post, he had voluntarily come to the base to try to negotiate the release of his two sonsAssuming that the account of the WP, which has always had its own agenda, is accurate, what difference does the purpose of the visit to the American installation make? To me, the article generates a strong inference that the individual was something more than the Chief Mail Clerk of the Iraqi Army, and that the GI's knew that. Is the Post leaving something out, or do they simply intend to portray American soldiers as gratuitous torturers?

I don't dispute that they were justified in taking him into custody. I do dispute that they were justified in brutalizing him. That's not the kind of country I was brought up to believe that we were.Soldiers who have seen friends killed by "insurgents" dressed in civilian clothing, with no military markings, tend to overreact sometimes. The Uniform Code of Military Justice, a statute passed by a civilian congress and approved by a civilian president, permits consideration by the military judicial system of circumstances in extenuation and mitigation to the same extent as the civilian criminal law does.

You might want to consider that in the context of your criticisms.

ndebord
January 31st, 2006, 08:51 PM
Ralph,

To respond to just one of your points here:

RL>> I don't excuse it, but your characterization of six broken ribs as "beating a man half to death" strikes me as a bit feverish. That you see stuffing a man into a sleeping bag as "torture" suggests that your experience with torture is limited. Count yourself fortunate and think about why.

Surely you jest, for if you do not, then I pity you for your condescension. Last time I looked, we only have 12 pairs of ribs, so breaking 25% of them is no small matter. As for the general stuffed into the sleeping bag, he was stuffed head first and so, as is the wont of all the humans I'm aware of, suffocated. Let's see, off the top of my head, any DA worth his salt would call that "negligent homicide" at best and at worst, 2nd degree murder.

Judy G. Russell
January 31st, 2006, 09:32 PM
However, the NSA doesn't talk to me, so I'm not sure exactly what they are doing.Bush seems to be quite clear about what they're doing and he calls it wiretapping the telephone calls of individuals. I tend to believe him when he says that.

your solution is to bootstrap yourself into some kind of standing and get a court to rule that you're right. You have not done this, and nobody else has, either.(a) You know how hard it is to get standing in federal court. There's been an entire thread here discussing that one issue. (b) You're wrong that "nobody else has" tried that. There's a lawsuit pending now.

I suggest to you that the President and several other people may have considerably more information than you about what is "necessary."We have already seen the kind of "more information" the President has -- let's see here, there are weapons of mass destruction in Iraq, right? Iraq is trying to get enriched uranium in Niger, right? The Iraqi people will welcome us as liberators, right? Shall I continue extolling the many virtues of the "more information" we've seen this President base life-and-death decisions on?

Judy G. Russell
January 31st, 2006, 09:36 PM
I want him to do it, too. But I retain my right to disagree with the methods he chooses, particularly when it appears that (a) they're not terribly good methods (have you read the news articles about the many valuable leads the NSA intelligence has provided to our law enforcement arms ... forgive me... my sarcasm is showing), (b) they violate the rights of individual Americans and/or (c) they create more terrorists than they stop.

Judy G. Russell
January 31st, 2006, 09:37 PM
I repeat: let's get to the point of having you concede that smothering a man to his death is torture before we go beyond that.

Judy G. Russell
January 31st, 2006, 09:39 PM
The one thing I would be doing for certain right now is using the FISA and the FISA Court to get proper legal warrants to do any wiretapping or electronic surveillance of American citizens.

Lindsey
February 1st, 2006, 01:18 AM
I suggest to you that the President and several other people may have considerably more information than you about what is "necessary."

I seem to remember that you argued very much that same sort of thing regarding WMD in Iraq.

--Lindsey

Lindsey
February 1st, 2006, 01:21 AM
As does the contrary view.
By what lawyers besides you who aren't beholden to the Bush administration?

--Lindsey

Lindsey
February 1st, 2006, 02:14 AM
I don't excuse it, but your characterization of six broken ribs as "beating a man half to death" strikes me as a bit feverish. That you see stuffing a man into a sleeping bag as "torture" suggests that your experience with torture is limited. Count yourself fortunate and think about why.
You and Alberto Gonzales may not consider waterboarding to be torture, either, but I think most people would consider that making someone feel they were about to drown, or that they were being suffocated (and in this case, we know those fears would have been justified) IS unquestionably torture.

The soldier himself said the reason for stuffing the general headfirst into the sleeping bag was that he intended to traumatize him, he was trying to break him to make him more amenable to questioning. I'm sorry, that's simply not acceptable.

Assuming that the account of the WP, which has always had its own agenda, is accurate, what difference does the purpose of the visit to the American installation make?
You're the one who wanted to know what he was doing when he was apprehended. You tell ME what difference it makes.

The Uniform Code of Military Justice, a statute passed by a civilian congress and approved by a civilian president, permits consideration by the military judicial system of circumstances in extenuation and mitigation to the same extent as the civilian criminal law does.
Oh, I see -- this is like the Abner Louima case, you mean? Police officer thought (wrongly, as it turned out) that Louima had punched him during a free-for-all at a nightclub, so of course, that justified sodomizing him with a broom handle (and tearing his intestine and his bladder in the process) while he was handcuffed. Yeah, I get it. But the cop in that case was sentenced to 30 years in prison for violating Louima's civil rights.

--Lindsey

earler
February 1st, 2006, 10:14 AM
Nyrb's discretion is not infrequently politically based.

And, yes, marxist. Since you appear to approve of marxism, as comes through from your messages, why do you object?

-er

ndebord
February 1st, 2006, 05:21 PM
The problem here is that the President is taking the position that his actions CAN'T be reviewed by the judiciary -- that what he is doing is solely a matter of executive power without any judicial review whatsoever.

I certainly hope the courts will take a different view, but there are procedural problems even with getting the issues before the courts. For example, Jose Padilla's detention in military custody without charges was all set to be reviewed by the Supreme Court when "all of a sudden" civilian charges were pressed and he was transferred into civilian custody. That technically renders his case moot, and the courts can (and very well may) duck the issue by relying on the doctrine of mootness (they generally don't decide cases when they're moot). In the case of the electronic surveillance, the courts could (and again very well may) take the position that the only people who have the legal right (standing) to complain are those who have personally been injured, and since nobody can prove that he/she has been injured (because there's no proof as to who was wiretapped), nobody will have standing. In the case of Bush's position that he can ignore the new legislation on not torturing detainees and prisoners, who's going to be in a position to complain?

It's very scary.

Judy,

AT&T Sued Over U.S. Wiretapping Program

http://www.pcworld.com/news/article/0,aid,124569,00.asp

"Company is accused of collaborating with an NSA program to intercept Internet and telephone communications."

It just goes to show that it is never a good idea to underestimate the power of Mammon. IF GWB refuses to give up his unitary power to wiretap sans warrants, perhaps the market (and the courts) will punish those commercial providers who have gone along with his attempt to avoid the laws of the land.

rlohmann
February 1st, 2006, 06:27 PM
Accepting for purposes of argument that the individual was in fact smothered to death, what evidence can you produce about the alleged torturer's intent? Doesn't intent play some kind of role in situations like this?

Judy G. Russell
February 1st, 2006, 11:09 PM
No. Torture is torture regardless of the motives. I don't care why someone rips out someone else's fingernails, or smothers someone else.

Judy G. Russell
February 1st, 2006, 11:11 PM
I'm not particularly concerned with the kind of access AT&T gave to databases, since quite frankly it's long been held that you don't have a particular right of privacy in the numbers you call. It's the interception of the CONTENTS of communications that bothers me.

Lindsey
February 1st, 2006, 11:57 PM
And, yes, marxist. Since you appear to approve of marxism, as comes through from your messages, why do you object?
I think the filter through which you are reading is giving you a rather warped view of things...

--Lindsey

Lindsey
February 2nd, 2006, 12:35 AM
Accepting for purposes of argument that the individual was in fact smothered to death,
That is what the autopsy report said.

what evidence can you produce about the alleged torturer's intent?
I'm with Judy--I can't see that intent matters, but FWIW, his own testimony said that his idea was to use the sleeping bag as an extreme stress position -- a "claustrophobic" technique, he called it. That indicates to me he intended to induce panic. And that's torture.

And the technique also involved sitting on the detainee's chest -- this is a man, remember, with six broken ribs. Now you may not think that is any big deal, but witnesses testified that he had been beaten so badly that he was having difficulty breathing even without being stuffed into a sleeping bag, and he could not walk on his own. I don't think "beaten half to death" is an extreme characterization.

One of the Post articles pointed out something else that is a miscarriage of justice in this case:


The decision provides a stark contrast to punishments meted out to some of the military police soldiers who worked at the Abu Ghraib prison and were convicted of abusing detainees, none of whom died in custody. For example, former corporal Charles A. Graner Jr. was sentenced to 10 years in prison for abuse; former staff sergeant Ivan L. "Chip" Frederick II was sentenced to 8 1/2 years; and former private first class Lynndie R. England, who posed with naked detainees in notorious photographs, received three years.

This guy got only a $6000 fine and restricted movements for 60 days.

--Lindsey

earler
February 2nd, 2006, 05:44 AM
Funny you said that. Those were the words I'd have applied to much of what you say.

-er

Lindsey
February 2nd, 2006, 11:34 PM
So: What have I said that you interpret as "Marxist," and in what way have I misunderstood your own position?

--Lindsey

ndebord
February 3rd, 2006, 12:41 AM
Accepting for purposes of argument that the individual was in fact smothered to death, what evidence can you produce about the alleged torturer's intent? Doesn't intent play some kind of role in situations like this?

Ralph,

When you abolish adherence to the Geneva Code because you parse language closely and refuse to acknowledge that terrorists are indeed POWS and thus entitled to said protections, you do it for a reason. The only reason that I've heard to date is that it is necessary to torture prisoners to extract information and that when one or two or however many die, that that is an acceptable casualty rate. It is indeed ironic that the powers that be refuse to acknowledge, on the one hand, that this jihadist movement is more than just isolated terrorists, scattered across the globe who deserve no protections under law, but these same people also insist that we are now engaged in a "long war" against them IF indeed, it is war, then those enemies we capture are entitled to the same protection under the precepts of the Geneva Code that we expect our own POWs to receive.

The point is a simple one. If you authorize, indeed insist upon torture as a duty of the soldiers who carry out your orders, you are as guilty as the soldier who kills the captive.

The Uniform Code of Military Conduct is quite blunt on the rules of conduct that apply without exception to all American combatants. Since we are a Democracy, those rules also apply to our civilian hierarchy on top of the military chain of command. And since you once served in Germany, you should know this by heart.

ARTICLE 93. CRUELTY AND MALTREATMENT "Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

Let's assume, for the moment, that it is not murder but manslaughter. The code is clear on this as well:

ARTICLE 119. MANSLAUGHTER

b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being--

(1) by culpable negligence; or...

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

Finally, forget for a moment that the U.S. did ratify the U.N. convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, since many Americans refuse to acknlowledge its power, regardless of our treaty obligations. Even without this, the UCMJ alone makes a clear case against this kind of behavior.

ndebord
February 3rd, 2006, 12:09 PM
I'm not particularly concerned with the kind of access AT&T gave to databases, since quite frankly it's long been held that you don't have a particular right of privacy in the numbers you call. It's the interception of the CONTENTS of communications that bothers me.

Judy,

No argument there, it's just that anything that chips away at this (IMO) policy is good.

Judy G. Russell
February 3rd, 2006, 04:28 PM
it's just that anything that chips away at this (IMO) policy is good.I don't completely agree there. I don't think we win this argument by saying we even oppose things that are, probably or definitely, legal.

Mike
February 3rd, 2006, 06:06 PM
I don't completely agree there. I don't think we win this argument by saying we even oppose things that are, probably or definitely, legal.

Though sometimes when there's enough protest, the definition of what's legal gets changed.

In teh early days of cell phone usage, when most systems were on the 800 MHz band, many common radio scanners (the kind people use to listen to fire and police and air traffic and other radio transmissions) could receive the signals and it was possible for a scanner owner to listen to cell phone conversations. At that time, it was not illegal to do so, as long as one did not divulge the content of the conversation to any other party.

Finally, someone realized that his "private" conversations were hanging in the wind for anyone to intercept, and, of course, a few morons did tape and play the conversations for others. Congress was very quick to enact a law that made it illegal to listen to any cell conversations. Scanners had to be manufactured in a way that they could not receive the 800 MHz band. People who owned scanners manufactured before the effective date were prevented legally from listening to radio transmissions in that band.

Now, the big issue is sale of cell phone call records. I first noticed adverts for that five or six years ago, but only recently did someone make an issue of it, and now Congress is reacting.

Judy G. Russell
February 3rd, 2006, 06:20 PM
I don't disagree that the law can changed and be changed. But here we're dealing more with a basic constitutional concept as to when government does and doesn't need a warrant (that is, what is and isn't going to be recognized as within the zone where you have a reasonable expectation of privacy). It's one thing to say you reasonably don't expect your cell phone calls to be monitored (by anyone, including government) or that you don't expect your cell phone company to sell your records, and something altogether different to say that you have a reasonable expectation that nobody will ever see those records except with a warrant. Federal case law has long been clear that there is no reasonable expectation of privacy in the numbers you dial or how long your conversations last.

fhaber
February 4th, 2006, 12:14 PM
Wasn't this how Newt was cornered, 10-11 years ago? The guy with the scanner was a civillian of some sort, and never got prosecuted, I think.

Lindsey
February 4th, 2006, 11:09 PM
Wasn't this how Newt was cornered, 10-11 years ago? The guy with the scanner was a civillian of some sort, and never got prosecuted, I think.
Something like that, I think. Gingrich had already received some sort of punishment from the Ethics Committee, but the conversation in question violated some of the conditions placed on Gingrich as part of his punishment. Boehner was in on that conversation, and has a lawsuit pending (funded in part by campaign donations) against Rep. Jim McDermott of Washington, who apparently received the recording that was passed on from the civilian who picked up the conversation. See this article (http://www.thehill.com/thehill/export/TheHill/News/Frontpage/042605/mcdermott.html) in The Hill.

Boehner may well have committed his own violation by releasing the conversation to the news media, but that doesn't absolve Boehner of being part of a plot against the Ethics Committee -- and it's hardly a recommendation for the new Republican Majority Leader in the House.

--Lindsey

Mike
February 5th, 2006, 01:10 AM
But can the precendents get changed by a new law about privacy of numbers dialed and length of conversations?

Lindsey
February 5th, 2006, 10:32 PM
But can the precendents get changed by a new law about privacy of numbers dialed and length of conversations?
How much chance do you think something like that has of being passed in the current political climate?

--Lindsey

Judy G. Russell
February 5th, 2006, 11:36 PM
Yes, but it's extremely unlikely. Issues as to the numbers called and length of calls have been litigated for decades. There's no particular reason from a legal perspective for the constitutional underpinnings of those decisions to be changed by statute now.

Mike
February 8th, 2006, 12:43 AM
Even with the current furor over the sale of cell phone calling records?

Judy G. Russell
February 8th, 2006, 01:00 AM
Even with the current furor over the sale of cell phone calling records?You betcha. There's a really fundamental difference in the law between what government can do in the course of a criminal investigation and what we will tolerate by private citizens for private gain.

Mike
February 9th, 2006, 12:28 AM
OIC. ...thanks!