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SDR
millennium club
Joined: 02 Oct 2004
Posts: 1712
Location: San Francisco
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 Posted: Sat Dec 17, 2005 1:22 pm Post subject: The powers of the presidency. . . |
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December 17, 2005 -- NY Times
News Analysis
Behind Power, One Principle as Bush Pushes Prerogatives
By SCOTT SHANE
WASHINGTON, Dec. 16 - A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.
From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts.
With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said.
The administration's legal experts, including David S. Addington, the vice president's former counsel and now his chief of staff, and John C. Yoo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority.
The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of the powers.
Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks.
Mr. Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress "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."
That became the underlying justification for numerous actions apart from the eavesdropping program, disclosed by The New York Times on Thursday night. Those include the order to try accused terrorists before military tribunals; the detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret overseas jails operated by the Central Intelligence Agency; the holding of two Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use of severe interrogation techniques, including some banned by international agreements, on Al Qaeda figures.
Mr. Yoo, now a law professor at the University of California, Berkeley, declined to comment for this article. But Bradford A. Berenson, who served as associate counsel to President Bush from 2001 to 2003, explained the logic behind the assertion of executive power.
"After 9/11 the president felt it was incumbent on him to use every ounce of authority available to him to protect the American people," Mr. Berenson said.
He said he was not familiar with the N.S.A. program, in which the intelligence agency, without warrants, has monitored international telephone calls and international e-mail messages of people inside the United States. He said that he could not comment on whether the program was justified, but that he believed intelligence gathering on an enemy was clearly part of the president's constitutional war powers.
"Any program like this would have been very carefully analyzed by administration lawyers," Mr. Berenson said. "It's easy, now that four years have passed without another attack, to forget the sense of urgency that pervaded the country when the ruins of the World Trade Center were still smoking."
But some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.
"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme."
Even if the administration believes the president has the authority to direct warrantless eavesdropping, she said, ordering it without seeking Congressional approval was politically wrongheaded. "We're just relearning the lessons of Vietnam and Watergate," said Ms. Parker, now dean of the University of the Pacific McGeorge School of Law.
Jeffrey H. Smith, who served as C.I.A. general counsel in 1995 and 1996, said he was dismayed by the N.S.A. program, which he said was the latest instance of legal overreach by the administration.
"Clearly the president felt after 9/11 that he needed more powers than his predecessors had exercised," Mr. Smith said. "He chose to assert as much power as he thought he needed. Now the question is whether that was wise and consistent with our values."
William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration's past assertions of presidential powers.
"I was frankly astonished by the story," he said. "My head is spinning."
Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said.
Mr. Berenson, the former White House associate counsel, said that in rare cases, the presidents' advisers may decide that an existing law violates the Constitution "by invading the president's executive powers as commander in chief."
The Foreign Intelligence Surveillance Act of 1978 typically requires warrants for the kind of eavesdropping carried out under the special N.S.A. program. Whether administration lawyers argued that that statute unconstitutionally infringed the president's powers is not known.
But Mr. Smith, formerly of the C.I.A., noted that when President Carter signed the act into law in 1978, he seemed to rule out any domestic eavesdropping without court approval.
"The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States" if an American's communications might be intercepted, President Carter said when he signed the act.
By asserting excessive powers, Mr. Smith said, President Bush may provoke a reaction from Congress and the courts that ultimately thwarts executive power.
"The president may wind up eroding the very powers he was seeking to exert," Mr. Smith said.
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"I'm the commander . . . see, I do not need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation." GWB |
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Ed Ziomek
Joined: 07 Jun 2005
Posts: 498
Location: Stamford, Connecticut
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| Posted: Mon Dec 19, 2005 6:31 pm Post subject: "At War", and.... UNDER ATTACK and At War |
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I just heard both Condoleezza Rice and then Diane Feinstein both give opinions on this troubling and dangerous matter... MSNBC and CNN (Wolf Blitzer)
But if I could find some "reasonableness" or "sanity" explanation... I remind myself that New York and America were under attack, for the first time in any of our lives.
I am talking about a multi-state ATTACK, of unknown dimensions. It is one thing for America to be at war, and that is troubling enough... "The War on Terror", but can we forget how NYPD task force people were mobilized in those first few weeks...?
They had chemical sniffing dogs, radioactive detecting equipment, Container ship searches from 20 miles out to around every corner, nook, and cranny. The NYPD and Federal FBI, DEA, and hundreds of DIS-connected law enforcement groups justifiably knew ANOTHER ATTACK was guaranteed!
Anthrax. Yes. It happened. Attack number 2. Homegrown, probably, but nobody knew that, then or???? now. And it had funny targets, i.e., two Democratic Senators, three liberal journalists... shut down Washington, killed innocent people. But it was Attack number 2.
More chemical sniffing dogs. More nuke sniffing devices. When is #3 going to happen?
I cannot fault any President for acting in an "Attack defense mode". Beyond war mode. At least not in the first instance.
I can fault the administration for NOT subsequently informing the Senate Intelligence Committee about the emergency development while the Homeland Security group was being formed, to "fill in the gaps" as Rice mentioned.
OK. I accept the fact that my President took all the measures he had to take to protect us, in fact, matching or surpassing the freedoms America GAVE TO THE TERROR GROUPS that took advantage of the cross border, cross constitutional limitations of this bureacratically correct nation. Note, we even gave these illegal scum credit cards for use in the United States!
Having said that, if these emergency measures were used to surveil anti-war groups, or journalists, for political payback reasons, then America has a big problem.
If these emergency measures were used to force a Federal agency to look into television personality's alleged stock transfer methodology, in the middle of a war, in the middle of an attack, then America has a big problem.
Possibly, just possibly, the repurcussions of these latest troubling series of events is a sign of America's health. Republicans and Democrats are understandably furious.
Great article in the New York Times. Pray for a good resolution.
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Ed Ziomek |
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Richard Haut
millennium club
Joined: 18 Apr 2004
Posts: 1137
Location: Nice, France
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| Posted: Tue Dec 20, 2005 1:16 pm Post subject: |
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Ed
you are not alone in your concern.
The following is from Newsweek:
| Quote: |
Bush’s Snoopgate
The president was so desperate to kill The New York Times’ eavesdropping story, he summoned the paper’s editor and publisher to the Oval Office. But it wasn’t just out of concern about national security.
WEB-EXCLUSIVE COMMENTARY
By Jonathan Alter
Newsweek
Updated: 6:17 p.m. ET Dec. 19, 2005
Dec. 19, 2005 - Finally we have a Washington scandal that goes beyond sex, corruption and political intrigue to big issues like security versus liberty and the reasonable bounds of presidential power. President Bush came out swinging on Snoopgate—he made it seem as if those who didn’t agree with him wanted to leave us vulnerable to Al Qaeda—but it will not work. We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.
No wonder Bush was so desperate that The New York Times not publish its story on the National Security Agency eavesdropping on American citizens without a warrant, in what lawyers outside the administration say is a clear violation of the 1978 Foreign Intelligence Surveillance Act. I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting,
but one can only imagine the president’s desperation.
The problem was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists—in fact, all American Muslims, period—have long since suspected that the U.S. government might be listening in to their conversations. Bush claimed that “the fact that we are discussing this program is helping the enemy.” But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a “shameful act,” it was the work of a patriot inside the government who was trying to stop a presidential power grab.
No, Bush was desperate to keep the Times from running this important story—which the paper had already inexplicably held for a year—because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post 9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism.
What is especially perplexing about this story is that the 1978 law set up a special court to approve eavesdropping in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify it to the court, essentially obtaining a warrant after the fact. Since 1979, the FISA court has approved tens of thousands of eavesdropping requests and rejected only four. There was no indication the existing system was slow—as the president seemed to claim in his press conference—or in any way required extra-constitutional action.
This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.
In the meantime, it is unlikely that Bush will echo President Kennedy in 1961. After JFK managed to tone down a New York Times story by Tad Szulc on the Bay of Pigs invasion, he confided to Times editor Turner Catledge that he wished the paper had printed the whole story because it might have spared him such a stunning defeat in Cuba.
This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason—and less out of genuine concern about national security—that George W. Bush tried so hard to kill the New York Times story.
© 2005 Newsweek, Inc.
© 2005 MSNBC.com
URL: http://www.msnbc.msn.com/id/10536559/site/newsweek/ |
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Richard Haut has worked with the architectural profession for over 25 years and produces the weekly Richard Haut's Competitions, which has given architects details of many thousands of projects for which they can apply across Britain and Europe. |
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