Strengthening Constitutional Self-Government

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Why Didn’t He Ask Congress?

I’m glad to hear that at least one conservative aside from myself is bothered by recent relevations. "Why didn’t he ask Congress" is the question asked today by George Will. Will notes that the administration has defended its surveillance tactics under the president’s traditional "plenary" powers to engage in "military actions." Fair enough, but who gets to decide what the term "military actions" encompasses? Surely, had Bush gone to Congress in 2001 or 2002 and asked for authority to tap phones without a court order he would’ve gotten it. Why didn’t he? The answer, Will suggests, has something to do with "this administration’s almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled." A strange attitude to take toward a Congress dominated by his own party, is it not?

It is worth recalling that the Democrats, not the Republicans, were the ones responsible for torpedoing Franklin Roosevelt’s "court-packing" plan in 1937. They did so not because they had turned against the larger New Deal project, but simply because they were tired of the administration treating Congress as a rubber stamp. This may be what we are beginning to see happen now.

Discussions - 27 Comments

Another reason not to tell congress is the refusal of congress to police her own leaks. Democrats even put communists on the armed services committee and had most of our secrets run down to Castro.

I agree with the above...handwritten letters appearing from nowhere, and the long history of political leaks coming from various committees. I wouldn’t trust Congress with something that gives us a real edge.

John, your "libertarianism" is showing, I’m afraid.

yesterday, Atty Genl Gonzales indicated that the option of trying to amend FISA was considered, but prospects for quick passage were found unpromising, so I’m not at all sure Will’s premise is correct:

Here’s the relevant Q & A from the AG’s press session:

"Question: If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

Gonzales: ... We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so the decision was made that because we felt that the authorities were there, that we should continue moving forward with this program."

It may also be worth noting that the very same "authorities" (i.e., presidential powers to authorize warrantless searches for national-security reasons) were asserted by the Clinton administration back in 1994, with none other than Jamie Gorelick as the administration point-person in making (really insisting upon) that argument to Congress.

I am sure the people who threw themselves out of the twin towers to fall 50 stories rather than be burned to death were concerned as they fell about the improper eavesdropping on suspected terrorists. I am sure that as they fell to their death they were thinking how glad they were that their government has such respect for the rights of possible terrorist.

Remember Colleen Rowley? She was the FBI field agent (from the Minneapolis office, IIRC) who wanted to search the computer of Zacarias Moussaoui, the "20th hijacker," but couldn’t b/c her request for a warrant was stuck in the slow-moving paperwork pipeline to the special FISA Court. This is all covered in the 9/11 Commission’s report, and should be recalled.

I agree with Walter E. Wallis.
Some day we’ll know who the leakers are. I’ll make a slam dunk prediction here: President Bush advised congress of the program a dozen times. I predict we’ll soon see that the leakers are democrats who found out about the program during the fisa required advisals and, rather than doing what responsible government administrators would do, express concerns to the President, they went political, to the NYT. They didn’t stop to think that, in their efforts to make the President look bad, they’d make themselves and their party look worse. Much worse. I think it is entirely understandable that the President wanted to keep congress out of the loop as much as possible.

Okay, so 9/11 can be used as a pretext for the president to do, well, anything he wants? By invoking the twin towers we can ignore the Constitution? Is there any step that would, in your minds, go too far?

Also, I don’t see how the argument that Clinton did the same thing should cut any ice with conservatives. Does the president now have carte blanche to be fellated by a White House intern, as well?

Dr. Moser nails it again.

I think the point that Clinton and Carter both used similar tactics does not necessarily relieve Bush of any responsibility, what it does do however is show that this type of action is not new, and is not outside the bounds of Presidential prerogative. This eavesdropping procedure was in place before 9/11 and is now being used (again) post 9/11. Does this make it right? I don’t know. That is a much bigger argument relating to the line between government intrusion on civil liberties and a government’s obligation to protect its citizens.

John, in times of war extraordinary measures are often required. I thought you were a big fan of Lincoln, who suspended habeas corpus for crying out loud! This concern about evesdropping on U.S.-to-foreign telephone calls rings false to me (pun intended).

I got a great idea, John. Grab some of your Libertarian buddies and buy some tiny island in the Pacific. Great weather, life of leisure, and NO GOVERNMENT INTRUSION ON YOUR SACRED PRIVACY. And since no one will give a rat’s butt about "Libertopia," you’ll never have to worry about real-world problems such as terrorism and warfare. Au revoir, John....

Aren’t conservatives supposed to be against big government? It seems like you’re all more interested in cheering for Bush no matter what he does, rather than stick to your conservative principles.

I am sure that as they fell to their death they were thinking how glad they were that their government has such respect for the rights of possible terrorist.

I don’t think anyone cares about the rights of terrorists. I don’t, at least. What I’m worried about is granting the government the power to pretty much do whatever it wants. There’s also the possibility that they won’t just be listening in on A-rabs, or people who are guilty of anything, for that matter.

OK Dain, give me your lecture on what it really means to be a conservative.

I think the flap over all this with the NSA is disproportionate to what the country should have done with the near silent passing of the REAL ID Act.

I’m a conservative, but the Republicans are not showing themselves noble in this matter.


Phil, why should I lecture you about something I’ve already told you? Conservatives aren’t for hyper-individualism, but a balance between individual rights and collective needs (we are actually sandwiched by you Leftist and Rightist radicals). Read some Robert Nisbett.

As for cheering for Bush regardless of his actions, that’s BS. Most of us slammed him hard for his Supreme Court pick of Miers...HARD. We also aren’t happy that he has yet to find his veto pen. Come on, fair to us (as hard as you may find that).

John nowhere stated a tenderhearted concern with the rights of terrorists. His objections to the WH, fairly extracted, are 2. First, he is concerned about the power of the executive. We are not supposed to have an imperial presidency; the congress is not supposed to be a rubberstamp. As I understand his post, John was less concerned about the listening itself as the way the listening came about. In a Republic, procedure is of vital importance. that is not libertarianism, it is constitutionalism.

Second there is a political question here, is there not? Granted, the congress, beginning with that traitor Leahy, leaks like a sieve. But a general permission for discretionary listening contains no danger of leaks. Even if that permission came to be widely known - and it would - what good would it do our enemies? They still would not know who the targets were. The political issue is, why has this president managed his majority so miserably? John’s reply has the additional merit of including the word, "fellate." Lamentably, this is a term long out of use in political discourse owing to a lack of Democrats in the West Wing.

... and Dain, I would be careful enlisting my man Robert Nisbet on this. Nisbet deeply distrusted the military, thought Wilson the serpent in the republican garden for using war as an excuse to grow Leviathan, and was wont to believe, as Thomas Paine put it, "...taxes were not raised to carry on wars, but.. wars were raised to carry on taxes."

True, he was no libertarian. Nisbet believed that the restraint of genuine community should replace the brute coercion of the state even if the state’s coercion was in some ways socially liberating for individuals. But he was no big fan of the military, either, it was part of leviathan as far as he was concerned. This eavesdropping matter has much to do with our military projection abroad and the growth of government at home. I cannot imagine Nisbet would be crazy about this president or many of these policies.

Look, bottom line is, he didn’t need to "ask" congress for a power which he already had. The amendment prohibits not all search and seizure, but "unreasonable" search and seizure, which (it must be explained these days, because we don’t live in the kind of countries who keep this at top of mind) is the mark of a police state which uses power to repress people. Search and seizure, extended to include "search" of telephone conversations, is not unreasonable when such conversations have terrorists or their circle connected on the other end! And courts continue to find in favor of the presidents right to conduct warrantless searches under proper circumstances.

So much for Peter’s admonition that we discuss this like citizens, rather than lawyers. My concern is less with the details of this particular case than it is with a general trend in which the War on Terror is becoming an alibi for a theoretically limitless expansion of the powers of the Executive Branch. Moreover, the response of the president’s defenders on this is alarming--it suggests that president can do literally anything he wants in the name of national security (as defined by himself, of course). Surely the fact that Bush is (nominally, at least) a conservative does not mean that he should get a free pass from conservatives on this issue.

As for Lincoln, as I’ve said elsewhere, I’m an admirer of his. That’s different, of course, from being a hero-worshipper. He was a great man, but not a perfect man, not a demigod. I admire him in spite of his extra-Constitutional actions, not because of them. Moreover, I should point out that Lincoln generally respected the separation of powers; indeed, Congress was involved in the conduct of the Civil War to an extent that the president (and his defenders here) would find utterly unthinkable today.

WM...I think Nisbet is a good intro to conservative thinking (which is pretty different, you must admit). I didn’t say I endorsed his every can be "libertarianesque" about government power without rooting that opposition in the worship of the individual. I’m not a great fan of "leviathan," but I recognize the need during wartime.

I think the inherent struggle between civil liberties and governmental power is governmental power is necessarily ascendant, and I’m generally in favor of that when it comes to intel gathering and the least for TODAY. Tomorrow perhaps I’ll be active in paring back these governmental privileges.

Another reason I’m not upset about this is because my reading of these events suggests that Bush didn’t commit any violation of civil rights. This is just another attempt to drive his popularity underground, and foolish Libertarians shouldn’t be a part of it.

But John, Lincoln himself explictly denied he was using extra-constitutional powers in suspending Habeas Corpus, firing on Fort Sumter, etc. He was taking powers that the President had the authority for - in times of rebellion. Likewise, Madison, Hamilton, Jefferson and Washington all agreed, first during the removal controversy of 1789, then during the controversy over diplomats in 1790, and even after, during the 1793 Neutrality Proclamation dispute, on the general principle that the President should not be Legally restricted from necessary action to defend the nation. They disagreed on the margins about what action was "necessary." But on the whole, they argued that was a political question, not a legal one.

The President may have overreached, but in listening to terrorists (foreign and domestic) he did not violate the Constitution.

The President may have overreached, but in listening to terrorists (foreign and domestic) he did not violate the Constitution." I assume he was listening in on suspected terrorists, true? Should we also allow him to listen in on "traitors," like Senator Leahy? (wm, comment 14) Would that be reasonable?

By definition, Fung, a traitor is a threat. I’m sure he’d get a warrant for you,’re such a special case!

My post was pretty clearly expressing skepticism on broadening executive powers like this. If the people of Vermont want to elect someone like Leahy that is their business; nowhere in my post expressed or implied was there permission for the president to eavesdrop on American citizens.

The scare quotes around the word traitor are cute, but that is exactly what Leahy is. His relentless leaking of classified military and other intelligence was so blatant he had to resign from the Senate Intelligence committee. His multiple trips to Communist Nicaragua in the 1980’s were made as a part of a deliberate attempt to boost a Communist regime during the Cold War. Ironic witticisms and scare quotes do not cover up any of these loathesome activities; were he an operative in the CIA or the DIA and had leaked the same information, he would have gone to a federal pen.

Lincoln’s response to a court opinion attempting to deny him his inherent power in the defense area (I’m referring to Taney’s Ex Party Merryman ruling):

Lincoln simply ignored it. As far as we know, he threw it in the trash, for Taney’s ruling would have meant releasing Confederate partisans who were devoted to disrupting vital military communications between Washington, DC, and the North at a time when only a relative handful of Union troops were on hand to defend the city and its lines of communication northwards.

Lincoln tossed crewloads of people in jail (don’t have the exact figure but believe it’s in the hundreds or maybe even thousands) w/out benefit of habeas corpus b/c of military necessity at a time of urgent peril. And he completely stonewalled the judicial branch over what he was doing. Bush has listened in on some calls and held a press conference, and the WaPo sneered the other day that Bush was "brushing aside" his critics.

Attention person who made last comment - why don’t you use some name? Just pick a name: John Wayne, Charles Atlas, Bozo the Clown, whatever, and stick with it. it will just make it easier for people to respond to what you have to say, rather than replying to "it’s also worth noting that" or "Pete makes a good point".

In response to "it’s also worth noting..."

I think you must be referring to Ex Parte v Milligan. Lincoln didn’t ignore it. He was dead. The case wasn’t decided until 1866. And Douglas and Jackson both recognized that while the military tribunal for a citizen in a non-war zone (Indiana), was overreaching, the suspension of habeas corpus was not. Lincoln’s violation was bringing him to trial in a military court, not a civilian one.

Nope, "It’s also worth noting that..." has it right--it’s Ex parte Merryman, from 1861, and you can find the decision here.


You probably disagree with me but this was almost inevitable when conservatives decided to embrace the Messianic Iraq war. Conservatives threw the skepticism of big government aside when they made that leap.

If you feel isolated among conservatives, you might feel more comfortable coming home to the antiwar libertarians. We’ll keep a light on for you.

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