23 Comments

1. In Vino Veritas:

Durbin did answer the question, according to atrios.blogspot.com:

DURBIN: I just donít understand why they canít make what modifications in the law might be necessary, but instead are claiming powers that go way beyond what the statute allows and way beyond what anyone voted for on September 14, 2001.

Q: But the attorney general says FISA allows intercepts that are otherwise authorized by statue. And he also says that that was authorized in the authorization of force act.

DURBIN: Thatís his argument. Youíve just repeated it.

Q: Well, why donít ñ if you disagree with that argument, why donít you go on the floor and try to get a vote and have the Senate say whether or not the authorization of force ñ with all force necessary –

DURBIN: No, youíve got it wrong. Youíve got it wrong. I donít know ñ who do you work for, incidentally?

Q: Powerline and Pajamas Media.

DURBIN: Jamas Media?

Q: Pajamas Media.

DURBIN: Pajama Media?

Q: And Powerline.

DURBIN: Okay, Iím sorry I wasnít familiar with your publication. But I will just tell you this: the argument is the Constitution spells out the powers of the president, as well as the powers of the legislative branch and the judicial branch. And statutes will be followed if, in fact, they put exclusive authority. Thatís was FISA does. It creates the word ìexclusive meansî ñ exclusive authority. And they are reading more into it now than the statute obviously allows.

The fact that you would misrepresent the words of a U.S. Senator in order to make your outfit look better does not speak well of Pajamas’ ethics.

Feb 6, 2006 - 11:06 am 2. Bostonian:

IVV,

Geez.

PJM didn’t say that Durbin didn’t answer the question, just that he didn’t seem to want to.

But it’s not that you’re trigger-happy or anything.

Feb 6, 2006 - 11:31 am 3. Jack Okie:

Once more the tendentious Left falls into self-parody…

Vino, pour yourself another glass – your perceptions could hardly be any fuzzier. Not only did Roger say the transcript was “rough”, the point of his post was… aw, forget it. It’s no fun when the joke has to be explained.

I’ll leave it to others to explain, yet one more time, that no statute can affect the Presient’s Article II powers.

Feb 6, 2006 - 11:39 am 4. byrd:

Much as IVV overplays his “gotcha” moment, he does have a “gotcha” moment.

The rough transcript note “Apparently Durbin didn’t want to answer” is a misleading way of summarizing Durbin’s answer.

Feb 6, 2006 - 1:19 pm 5. byrd:

Upon reflection, I realize I’m assuming that IVV’s transcript is accurate.

Feb 6, 2006 - 1:21 pm 6. PeterUK:

“DURBIN: I just donít understand why they canít make what modifications in the law might be necessary,”

I thought this was the job of the Legislature?

Feb 6, 2006 - 1:38 pm 7. TallDave:

The really funny thing about this whole issue is that if AUMF doesn’t allow for this kind of wiretapping, then FISA is an unconstitutional infringement on the President’s Article II powers!

Of course, intelligence gathering is obviously incident to the use of military force against Al Qaeda. The courts have always upheld that view of domestic intel gathering to combat foreign threats.

What’s even more amusing is that once again, just like in 2002 and 2004, the Dems are kowtowing to their base and making themselves unpalatable on national security to moderates who want Al Qaeda’s international phone calls wiretapped. It’s like they can’t help committing political suicide.

Feb 6, 2006 - 4:53 pm 8. Mgmax:

“Pajamaline”?

I think Durbin was referring to his favorite book.

Feb 6, 2006 - 5:08 pm 9. Pat Curley:

Yes, TD, this is absolutely the wrong fight for the Democrats at the wrong time. It fits though with one of my pet theories about politics, that it’s all about trust. Most Bush supporters by definition trust the president to do what’s right. Bush haters on the other hand, do not. Therefore, arguing logically or legalistically (as Power Line has) is not likely to sway many people on the other side.

Feb 6, 2006 - 5:10 pm 10. jedrury:

Poor Gonzales, unflinchingly polite, in the
face of such buffoonery. I commend him for patiently answering to the inmates of the asylum called: the United States Senate, the greatest deliberative body in the free world. Gag me, please, for saying that.

Feb 6, 2006 - 5:10 pm 11. coffee260:

Alright already!

Enough with PJMs’ self congradulations on their first “Jeff Gannon” moment. We average readers get “gang raped” by the MSM on a daily basis with the same self congradulatory news.

Not Pajamas Media too…

On a more serious note, please remember why we patronize the new media. It definitly isn’t to read a bunch of bloggers hi-5iving over a “GOTCHA” moment.

Feb 6, 2006 - 9:24 pm 12. Partisan:

coffee260 .. nice point, think I’ll repeat it.

“please remember why we patronize the new media. It definitly isn’t to read a bunch of bloggers hi-5iving over a “GOTCHA” moment.”

I’d hate to see the new media go the way of the old media. Style over substance, conflict over facts.

Feb 6, 2006 - 10:00 pm 13. HA:

Roger,

Actually “Pajamaline Media” is much catchier than “Pajamas Media”.

And though it is too late for the Pajama naming contest, I like the idea of “Bright Line Media”. As in yesterday, Mirengoff drew a bright line between the old and new media.

Feb 7, 2006 - 3:16 am 14. TheRealSwede:

I’ve heard several Congressional Democrats offer to change the FISA law to accomodate the President’s stated needs in defending this country from terrorist attack. All he has to do they say, is ask. They know full well that for him to do so would be to admit that he has, up to this point, been in violation of the law. He obvioulsy won’t do that. And neither will the Dems let the matter drop as long as they see political advantage in keeping the issue alive.

But what if the Republicans in Congress were to take a leadership role by stating clearly that, whether the communication intercept program is in violation of FISA or not, everyone agrees that FISA, as it stands now, is inadequate to meet the needs of our national defense. Why not remove all doubt and push for revision of FISA? If the Republicans in Congress take the initiative, the President can still argue executive authority, and distance himself from the Republicans efforts. The Dems would be faced with either resisting the idea – and exposing their true agenda, or support legislation that would, at least in part, disarm them in their present pursuit of the President – leaving Presidential war-time powers intact. To be sure, the Dems would still make noise about the President having broken the law, but the issue would move from present to past, from primary to secondary, and may fade altogether. From the Republican and President’s point of view, that would be an improvement.

Feb 7, 2006 - 6:21 am 15. RogerA:

It is genuinely astounding to realize just how hopeless ignorant senators really are–prisoners of their staffers and the morning talking points!
And a sychopantic media who fluff up their egos and ask idiot questions. The combined IQ of the senate appears to be only slightly greater than a case of rutabagas.

Feb 7, 2006 - 8:23 am 16. jedrury:

Swede:

In football, you never takes points off the board. In politics, you never ask “endorse and reapprove my power.” If you got the power, the Nike slogan satisfies, “Just do it!”

Feb 7, 2006 - 8:45 am 17. dclydew:

After another reading of Article II and quite a load of research, I’m still not sure that those here who are quoting it, actually understand it.

It appears that the entire issue is actually one of interpertation. Only the “Unitary Executive Theory” holds that the statement “The Executive power shall be vested in a President” indicates that ALL executive power exists solely with the President as a person. This theory seems to have some support, but is not widely accepted by most constitutional scholars that I’ve been able to research.

Indeed, even the theory of a Unitary Executive seems to hold that while the President may DO whatever he pleases, if Congress disagrees with his interpertation/actions they have the right to withold funding or impeach the President. Of course, UE would assume that the President could no be tried in a court of law for ‘breaking the law’, but could be removed if Congress so decided.

This seems much less cut and dried than some commentors hold forth in their comments. Particularly, that it is not Article II (which actually says little about Wartime Powers) which may give Bush the OK, but an interpertation of Article II which has yet to be judged as correct.

Another issue I’ve seen is the excuse that other presidents have done the same thing. Often, we hear about Lincoln, who suspended habeus corpus. However, after the war, his actions wewre determined to be Unconstitutional, because the only provision for the suspension of habeus corpus is if all courts are forced to close. During the War courts were still operating and therefore, Lincoln had broken the law.(link)

Both Roosevelts acted outside the law, however in the more obvious of the instances (that of the Japaneese-American interrment), there has never been a true ruling of the Constitutionality of the event. Indeed, the only court cases involved are less than useful, but it is worth noting that neither of those cases are considered precedent by the Supreme Court today, but rather as a curiousity. Indeed, a Justice Douglas in his autobiography concluded that he had ruled incorrectly in support of the act.(William Douglas, The Court Years: 1935-1975 pp. 279-280.) (see also the Report of the Commission on Wartime Relocation and Internment of Civilians [Government Printing Office (1982) Library of Congress Call No. Y3W1910.J98])

Truman also made use of the UE theory during the Korean War. Not only were his actions surrounding the Steel workers strike considered unconstitutional by the courts, according to Justice Douglas, this ruling actually overturned the facts and basis for the ruling supporting Roosevelt and the detention of the Japaneese-Americans. (See William Douglas, The Court Years: 1935-1975 pp. 279-280.)

In my research I found a couple sources that tried to place Nixon on this list, but since Nixon’s mess wasn’t directly related to the Wartime power (he was focused on reelection) then I feel that it may be added to simply further weaken the argument, so I’ll leave it out.

So, in the end, Mr. Bush has pointed to President’s that have claimed UE, but have all been either directly or indirectly overruled by SCOTUS.

I don’t think simply saying “Article II Powers” is enough to make this go away. It appears to me that there are some very real and very serious questions to be considered. Perhaps, in the end, UE will be upheld by the courts and thus make these actions legal. Perhaps, it will be ruled as unconstitutional, or at least as an incorrect interpertation of constitutional powers. We simply don’t know yet.

Could someone provide me with instances where the President used ‘broad wartime powers’ to break the law and had this upheld by a court?

Feb 7, 2006 - 11:04 am 18. Knucklehead:

RealSwede,

You are analyzing this little political catfight from the perspective of the here and now. As Jedrury points out, there is about a larger, ongoing battle. That is that battle among the three branches of the US government for power. Each branch has a long history of trying to enhance its own power at the expense of the other branches.

The executive, the president, will never go to congress and ask for authorization to use what it considers to be the inherent powers it has under the constitution. That would be dumb. The president has not only the job to protect the nation but also to protect the office. His role was not defined to be one of any particular deference to the wishes or egotisms of congress and I’m not aware of any president who has ever perceived his role to be one of deference to congress.

Which side is “correct” regarding this little spat over seperation of powers is open to debate. My reading, and I’m no lawyer or constitutional scholar, is that the executive is correct in this case. Should this matter ever wind up in the courts the third branch may side with the legislature. This is, however, a seperation of powers catfight. My personal opinion is that Congress is doing the nation a disservice to bring this up now. Shame on the Dems in congress for using this to try and damage Bush. Shame on the Republicans in congress for letting them do so and making an opportunistic power grab. There is no good reason this had to happen now and plenty of good reason to have let it wait for some other matter, some other time.

Feb 7, 2006 - 11:19 am 19. dclydew:

Knucklehead,
The executive, the president, will never go to congress and ask for authorization to use what it considers to be the inherent powers it has under the constitution. That would be dumb.

I agree. So why would the Bush administration have tried to get Congress to pass a statement:

“all necessary and appropriate force in the United States and against those nations, organizations or persons [the president] determines planned, authorized, committed or aided”

Congress refused to include the bit I’ve placed in italics.

Now, if the Administration believes that the President has those powers already, such a statement (as you pointed out) would be dumb. The fact that Congress felt that this statement would have given the Administration too much power, also indicates that they did not intend their 8-14 resolution to include actions within the United States. The fact that the administration tried to get this included, seems to indicate that they did not believe they had such power.

I think we have a big messy quandry here, and if we cannot face it now, then we are a failed experiment in democracy. A Democracy must be able to withstand any issue and most definately be able to survive and prosper no matter the fate of any single human within that democracy, including the President. If we are so weak as a nation that we cannot verify the legality of actions made by the government, then are we any longer an open democracy? “The War on Terror” we are told may last for years, perhaps decades. When should we examine this issue if not now? Either to free up the Preisdent to continue his work, or to show that no matter the circumstances, American Citizens are a free people , governed by law, not by the whim of any individual.

Feb 7, 2006 - 11:34 am 20. flenser:

dclydew

You seem a mite confused, to put it charitably.

The courts have in fact ruled on these issues and they have sided with the position taken by the current president, and all prior presidents.

Here is the opionion of the Foreign Intelligence Surveillance Court of Review, or FISA court to you, delivered in 2002.

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President?s constitutional power.

Link here.

This link wil take you to a document listing all the times that the courts have indeed upheld presidential power in the fashion which it is now being used. It includes an explicit repudiation by the Supreme Court of your notion that the executive branch must obey whatever laws Congress passes, in US vs Curtiss-Wright Export.

Feb 7, 2006 - 12:14 pm 21. dclydew:

flenser,

Thanks for the links. ithink they both provide strong arguments in defense of the President. However, both of these appear as opinions. Mr. Cunningham admits that the devil is in the details and that he’s basing his statements on what information is publicly available (and his interpertation of existing federal dscisions). These present strong arguments that would absolutely preclude anyone from disingenously stating that the President “broke the law”. Until there is some sort of examination of the evidence, we cannot say that he broke the law, but neither can we say that what he did was lawful. There are strong arguments on both sides.

The FISA Opinion which you linked to was also interesting, but it doesn’t appear to apply directly (though perhaps indirectly). As far as I understand what I read, it appears that FISA cannot add restrictions to what the President may or may not do, once FISA has given its approval to a specific surveillance.

Indeed, the very opening of the document indicates that it was only because “There is no disagreement between the government and the
FISA court as to the propriety of the electronic surveillance; the court found that the
government had shown probable cause to believe that the target is an agent of a foreign power
and otherwise met the basic requirements of FISA. The governmentís application for a
surveillance order contains detailed information to support its contention that the target, who
is a United States person, is aiding, abetting, or conspiring with others in international
terrorism.” that the court felt justified in striking down the restrictions to the surveillance order.

As I said in my earlier statements (which I don’t think were confused, I wish you would further elaborate on that) there is some evidence that the President may have done something illegal. As you showed in your post, there is some evidence that the President may have acted completely within his power.

I still see no argument to support any definate statements either way and I think that a full review/investigation is appropriate to at least clarify this issue.

I also think that FISA should be updated to fit within our current technology of communication.

Feb 7, 2006 - 12:41 pm 22. flenser:

dclydew

As I said in my earlier statements (which I don’t think were confused, I wish you would further elaborate on that) there is some evidence that the President may have done something illegal.

You did indeed make that assertion in your initial post. What you did not do was produce any of the evidence which you feel exists for the president doing something illegal.

To my knowledge nobody outside of some blog commenters has seriously suggested that any such case exists.

The various members of Congress and the FISA court who were briefed on the program over the years never indicated that they thought it was illegal. To this day they have not said any such thing. Nobody has asked that this “illegal” program be terminated.

So if you believe a case for the NSA program being illegal exists, why don’t you present some case law and some reputable spokesmen for that point of view? NYT editorials don’t make the grade.

Feb 7, 2006 - 3:13 pm 23. BC, Imperial Torturer:

Roger, sorry for the Link Prostitution, but someone sent me to check out your post and I see that something I posted on a while back has still not been addressed by anyone in the Admin or Congress.

What the Lamestream Midiots don’t want the plebes to know about “domestic spying”.

Again, sorry for the shameless Link Pimpin’. (Especially to a post that’s archived.)

Feb 7, 2006 - 4:27 pm

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