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August 18, 2006

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Frederick Hamilton

Eras, Bob and bcowan,

Wars are usually begun with irrationality. Once the irrational behavior starts the war, it is hoped the rational will be victorius. Hitler invading the Sudatenland and his subsequent capture of Europe and his war against England was an irrational act. It forced a necessary war. It begs rationality to argue that Hitler didn't need to be stoped, or that the destructive effects of war are not justified. Hmm. 6 million jews exterminated. Hundreds of thousands of Eurpeans killed by Hitler. It was irrational of Japan to attack Pearl Harbor. They did. Was war on Japan necessary? Yes. Do the Japanese and Germans today wish they could turn back the clock and not have death and destruction visited upon them? I am sure they do. But World War II was a necessary and rational war.

Did the insane irrational attack on 9/11 require a war? Yes. For a good context of our present situation with extremist, jihadist, insane Muslims please read Kissinger's op-ed piece in today's Washington Post.

Nobody wants war. Vietnam was a collosal mistake. An irrational war. The Korean war was rational and now it is apparent what life on the Korean penninsula would be like if the North Koreans had been successful. All clear thinking South Koreans must thank America every night before they go to bed for our efforts to save them from the army of the north.

Our civil war was begun irrationally and should have been able to be avoided. But, the south seceeded and the attack on Fort Sumpter in Charleston Harbor started the most awful war in our history. Lincoln and the north had no choice but to go to war to save the union. Rational war? In retrospect most would say yes. Worth the horrible death and destruction of the Civil War? A difficult but definite yes. With a different country south of the Mason-Dixon line it is impossible to predict what either the north or south would be like today.

Sadly, wars are probably inevitable because of irrational behavior of very bad people. The Middle East has the potential as Kissinger points out to become a Armageddon if the U.S. and Europe don't arrive at a consensus on how to deal with the Middle East. The potential for nuclear war in the Middle East is probably higher than the potential for a nuclear exchange when we were in the Cold War with the USSR. Speaking of that, was the "Cold War" rational? No the whole problem was irrational, but could the West simply allow communist USSR to have their way in the world without a serious military posture and a serious policy of containment? Of course not. The Cold War ergo was rational.

It is not so easy to be a pacifist in the world since 1938. Nefarius evil people have horrible designs on freedom loving people. It is true, freedom is not free. It must be defended. At times it requires force and war. To acquiese and appease is the irrational behavior.

David

Bob-- the analogy is more like this:

The police know that at one time I had, say, illegal automatic weapons. They know this because I admittedly used them (although in circumstances that were not prosecutable.) They politely ask me to let them search my home. They even have a warrant from the appropriate authorities. They find some weapons and some ammo, and but then I throw them out of my house.

Later, they come back with another warrant, and I tell them that I had such weapons, but I threw them away. Can't prove it, but I threw them away. At the same time, I've been doing a lot of other bad stuff--threatening my neighbors, paying the local toughs to beat up the neighbors, beating up my wife and kids, and maybe trying to buy heavier arms, bullet-proof vests, etc.
I let them look around a little, but refuse to give them access to my basement or keys to my gun cabinet.

Would the police be justified in raiding my home under those circumstances? Even if it turns out that I didn't have the weapons?

Erasmussimo

Mr. Hamilton, I find your simple dichotomy between rational war and irrational war unsatisfying. It's not so simple as to declare one war rational and another war irrational. I think it more illuminating to examine the reasons for entering into a war to determine if that reasoning process was reasonable. For example, the Japanese decision to attack Pearl Harbor was, I think, well-reasoned, given the refusal to abandon their Empire. Their best decision would have been to abandon their Empire as unsustainable, but once they had made the decision to maintain their Empire, the attack on Pearl Harbor was a reasonable risk. They underestimated the anger that this would provoke among the American people, and the guilt by association that they would garner because of Hitler. But, given the information available to them at the time, it was a rational decision. However, they should have recognized that the war was lost by 1944 and surrendered then.

Yes, the American decision to declare war in 1941 was a rational decision, as was the decision to defend Korea.

But now we turn to the American decision to invade Iraq in 2003, and here I conclude that the reasoning process was profoundly irrational. Mr. Hussein offered no threat to the USA. His defiance of UN rulings did undermine world order, but an American invasion of Iraq in defiance of the UN was much more damaging in this regard. The sufferings of the Iraqi people were horrific, but not fundamentally different from the suffering in Darfur, Zimbabwe, North Korea, and Myanmar -- which we have no dreams of invading.

The invasion of Iraq destabilized the Middle East and failed to accomplish anything positive. Your optimism that all will turn out well is at variance with the daily deterioration of the situation there. Civil war is already in progress; the Shiites will prevail in this civil war, and they will install a strongly anti-American regime closely allied with Iraq. Such a situation will be worse than what we had with Mr. Hussein.

David

Re Iraq--I'm actually pretty optimistic about the eventual outcome and concur with Frederick that history will probably judge President Bush kindly.

I don't think that the current situation is all that bad, given what could have happened, what had been predicted to happen, what has happened in wars in the past, and, perhaps most critically, what would have happened had the Hussein regime continued in power and the air war and embargo continued. To explain my optimism would take way too much time and detail for this blog.


Erasmussimo

David, let's look at it this way:

BEFORE: Mr. Hussein running the country, violating UN requirements, killing some thousands of Iraqis per year, plus some thousands of Iraqis dying per year due to medical problems. US prestige is high, military power unrivalled, economy strong, diplomatic weight very high.

AFTER: A Shiite government running Iraq, closely allied to Iran, killing some thousands of Sunnis and/or Kurds every year, plus some thousands of Iraqis dying every year due to religious constraints on economic activities. US prestige shattered, its military discredited, economy weakening, diplomatic weight much lower.

History will judge Mr. Bush kindly for doing this?

Frederick Hamilton

Eras,
Lets look at it this way:

Before: Saddam running the country. Killing TENS of thousands of Iraqi's per year. Those not killed have ears cut off and are pillaged in the rape rooms. Heads are left on posts for the town to see. Who gives a rats ass about anybody's prestige. Prestige is worthless. When you worry what people think about you then that is the time to worry if you are worthy of leadership in the first place. But agreed, military power unrivaled. Economy strong. Diplomatic weight just as ephemeral as the prestige and worth about as much. If your diplomatic weight depends on the approval of the French and old Europe you are in deep do do.

After: Saddam on trial for crimes against humanity. Iraq's government a coalition government of elected Shiites, Sunni's and Kurds with a Shiite PM, a Sunni President and a Kurd VP. No deaths because of religous constraints by the government. Again who gives a rats ass about prestige unless you are insecure. Our status in the world remains the same. Military still the strongest in the world. Economy doing well and the strongest economy in the world. More people wanting to get into America (legally and illegally) than any place on Earth. Diplomatic weight unchanged. No more terrorist attacks on our soil since 9/11 and still trying to destroy terrorists anywhere in the world before they blow up our planes over the Atlantic or bomb our pizza parlors.

History takes time. Now is now. And I like the after now better than the before. History, sorry to disappoint, will be kind to Bush and his high ideal of pursueing freedom and liberty for mankind. Yeah, I know, Muslims aren't capable of being free people, history and all, but count me as a cynic and firmly believe the vast majority of Muslims want freedom and liberty for themselves and their children.

Erasmussimo

Mr. Hamilton, I believe I left an ambiguity in my post that has caused us some difficulties. My "After" scenario does not represent 2006, but something like 2010. I realize that you are optimistic that the current Iraqi government will prevail, but I remind you that all the evidence points to a deteriorating situation, and the CIA assessments and the Army assessments are much more pessimistic than your assumed end scenario. While your 2006 "After" is correct, my 2010 "After" scenario is quite likely.

You dismiss international prestige and diplomatic clout as without value. I disagree. For example, consider the other two members of the "Axis of Evil" (after that speech I took three axes in my possession, painted nasty faces on them, and presented them to my friends as the "Axes of Evil"), North Korea and Iran. Both are merrily building nuclear weapons in complete defiance of our wishes, and we are utterly impotent to do anything about it. China is adroitly playing its geopolitical cards to insure that we fail in our efforts to prevent these countries from obtaining nuclear weapons. Given that we have staked everything on the prevention of these outcomes, we will be shown to all the world as a paper tiger, no longer able to influence world events.

In the end, China will be the country to resolve the problem, not the USA -- demonstrating to all the world that China is the country to pay heed to, not the USA. China will be seen worldwide as the wave of the future, and the USA will be seen as all washed up. As the world switches away from the dollar as the international currency, we'll lose about two percentage points of GDP growth per year just because of the shift.

Oh, and you note that the economy is doing well. Just this moment, the economy is OK. However, most economists agree that future prospects for the US economy aren't so good. Between the deficit, the balance of payments situation, and the now-deflating housing bubble, there are a lot of people (like me) moving our money out of American assets and into overseas assets. We've been doing this for a few years now and it has served us very nicely.

Frederick Hamilton

Eras,

You are on to something big. China will be the next big player on the world scene. China will not relegate us to third world status however. Plus China will only rival the American ecomomy when the Chinese people are free. Think of a billion and half hard working Chinese that get to keep the fruits of their labors. At that point, all bets are off. China someday will be free just as Russia, sort of, is free today. The communist workers paradise model doesn't get it. Until China exhibits real transparency, with open markets and a free people and economy, no investor in his right mind will abandon the dollar for the yuan. Like I said, freedom and liberty, free market and all those hard working billions with a remarkable asian mindset, that would be something.

Before America takes a back seat to the Chinese, they'll no longer be the Chi coms. All of which I suspect will take 4 to 5 decades if not longer. As communists, in their present form, they can be militarily strong but never as economically stong as they could be. Central communist economic planning has never worked anywhere.

As long as Americans have their economic freedom and liberty, we'll outshine the Chi coms. Or as Milton Friedman would say, you have to be "Free to Choose".

Bob

David,

In your analogy, you said you used the weapons. When did Iraq use nukes? When did Iraq use biological agents? Never. They may have used chemical agents, but so does the USG, Russia, French, British, and everyone else. Your analogy is no better than mine.

Bob

Fred,

So, you believe that we went to Iraq to depose a dictator who was killing millions? It wasn't about the oil? Then whay haven't we invaded North Korea, Sudan, Niger, etc. The same is happening there.

The difference is that there is no money to be made by US companies in those countries. No point in sending in USG troops for no returns for the corporations. The USG is nothing more than the enforcer of corporate interests. Corporate interests are not American interests.

Steve Frooman

Does anyone know how much more of September's going to go by before the hearing on the stay of injunction? For that matter, any idea when it'll be on the Circuit Court docket?

Frederick Hamilton

Bob,
C'mon. We go to war for corporate America. Man, lets list the insanity from the left about the reasons for the Iraq war:

1. To war so American Corporations get fat.

2. To war to get cheap oil.

3. To war to help Chenney's Haliburton.

4. To war to avenge Saddams attempt to kill GHW Bush.

5. To war to finish the war that GHW Bush should have.

6. To war to comply with the Jewish lobby's plans for the Middle East.

7. To war to prove that indeed Republican's like wars and killing people.

8. To war to perpetuate the lie about weapons of mass destruction.

Anything you guys think I left out. Now how about we are at war in Iraq because 9/11 changed America's view of the world and terrorists and terrorist/bad regimes that if allowed to flourish would be an unacceptable threat to us and one we couldn't ignore? Saddam had multiple opportunities to avoid a war. Multiple. Bush is right, we and the world are better off with Saddam being tried for crimes against humanity rather than being in power in Iraq.

You can have many just arguments against the war. The reasons for war were wrong. Saddam could have been contained. A dictatorial Saddam Iraq was no "immediate" threat to the U.S. The WMD argument was false and should have been known to be false to the U.S., French, British, Russians, Iraq military (Saddams secret), Bush, Powell, Kerry, HR Clinton, Jay Rockefeller, et al.

But please, leave the ludicrous arguments about why we are at war between you and your conspiracy cronies out of a legitimate debate. It just makes the crazy left look so goofy.

Yeah, wars and corporate America. WWII we needed to finish off the depression. Korea to get the roaring 50's off to a good start economically. Vietnam to build a sagging military/industrial complex. Iraq War 1 to keep oil cheap. Afghanistan to help the military transition to a quick, stealth fighting force and test all the new weapons. And finally Iraq War 2 to finish the job on cheap oil. Boy how I love to read the looney left. Makes me realize why America will never turn to the loonies to run this country. Who could trust or believe them?

Erasmussimo

Mr. Hamilton, I agree that the reasons you cite that are offered by the left are not credible. There are plenty of perfectly reasonable arguments against our going to war. For me, the most signficant is that, while removing Mr. Hussein was a good thing and the world is better off for his removal, a civil war in Iraq is a bad thing and the Shiite government that will emerge from that civil war will make the world an even worse place than it was with Mr. Hussein.

Bob

Fred,

Sorry to disappoint you, but I'm not a liberal nor a lefty. I am not a conservative either. Clinton is a liar, but so is Bush (hey, they're politicians. I expect nothing less.) I think liberals are as rabidly extremist as are the conservatives and the righties, like yourself. Regardles of your right or left leaning ideology, both groups support the state use of force for their particular agendas. One is no better than the other. Both conservatives and liberals have been indoctrinated into one of the two ruling parties in US politics, and both have their own radical, fundamentalist beliefs. Both believe each other is always wrong and that there is no other way to accomplish anything, but their way. They are both trapped in linear thinking. I'm not going to try to explain it to you either. It's like talking to a wall.

Frederick Hamilton

Bob,
Sometimes walls listen. I am not a rabid conservative. Just believe arguments should make sense. I would like to know how corporate America is able to lead us to war? I just can't understand the mechanism of such an effort by corporate America. If you could explain it other than simply making the claim, I would listen very attentively.

Bob

You realize, I don't mean corporate America as a whole? And no, I don't think we went to war so that Cheney could give his buddies at Haliburton a no-bid contract to rebuild Iraq. I'm sure that was just an after-thought on Cheney's part. It was still inappropriate, but putting that aside, let's focus on companies that need US control of Iraq in order to make a larger profit. I won't even drag in the war-mongering, military complex. They can't understand, and neither can I, why we have all of these armaments if we're not going to use them. I mean, really, what is the point of having a military if you're not going to use it. That being said, if you do have a military that is trained in offense (not a defender), then 10-to-1 you are going to use it, and use it offensively. For example, Switzerland is one of the few coountries that has a national militia for defense only. We don't even have that in the USA, although constitutionally, that's the only type of army we're supposed to have. However, constitutionally, we are supposed to have a Navy.

Anyway, back to the profiteering corporations. Now, mind you, the specific corporations that need USG military help may change from time to time and from administration to administration. Bush has his corporations that he owes favors to, just like Clinton had his. Some may even be the same companies. But when a company makes an investment in another country and that investment is threatened by nationalization, civil strife, war, cartels, strongmen, etc., these companies call on the USG to do something to protect their corporate interests. They, of course, parlay these corporate interests into American interests, but that's just part of marketing their need. And we Americans buy it every time, because we have been indoctrinated into one of the two political parties. As an indoctrinated citizen, we believe whatever our party says, and we disbelieve whatever the other party says. We are very emotional about it too. You, Fred, being a stauch conservative, think about the things you believe about Bush and the republican party. Forget the politics, for get the religious aspects, just look at the facts. Look at what is being said and by whom. Do you really think it is moral to hold people in prisons without telling them their crime? Without bringing them to trial? Just because these prisons are not on US soil? Bush believes this is just. Do you? Are you saying that American sense of justice and fair play stops at our borders? That we can do whatever we like overseas? I believe this is immoral and unethical. Our founding fathers believe this is immoral and unethical, so they put it in our Bill of Rights that all men have...not just men on American soil. Bush believes it is moral and ethical. How about you?

Fred, I will give you examples of American companies that have either convinced the USG to send troops into war and companies that have convinced presidents to keep the war going. I will even give you their reasons, sometimes they are farcical, like "you can't pull out of Nam now that we are in a recession, it couold send us into a depression." This was actually said at a meeting on congress in the early 70s. I'll get you the particulars. Let me get it all my evidence typed up on my computer, and when I'm done, I will post it.

Stephen

The most compelling and direct source of the President’s legal authority to conduct the Terrorist Surveillance Program without obtaining a warrant is the US Constitution. The President’s constitutional authority to gather intelligence comes from the President’s constitutional power to reserve any “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country.” (United States vs. United States District Court, 1972). This case’s reference to intelligence collection applies to the Terrorist Surveillance Program because it is limited to the collection of intelligence on foreign powers by only monitoring conversations between US persons and persons outside of the United States (Moschella, 7). There is nothing in the constitution which precludes the President from collecting foreign intelligence by way of domestic sources (i.e. a wiretap on a US Citizen). The presidential authority to collect foreign intelligence domestically was upheld in the case of United States vs. Brown (1973) by the majority opinion which asserted that “because of the President’s constitutional duty to act for the US in the filed of foreign relations, and his inherent power to protect the national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.” Many critics have put forth the argument that because the 1973 decision was made before the passing of the FISA Act (Foreign Intelligence Surveillance Act of 1978) it is not valid, however this is ignoring the fact that the Supreme Court makes it’s decision purely based on constitutionality, not on laws passed by congress. Furthermore, despite the fact that the US vs. Brown decision was passed before the FISA Act of 1978, the constitutional power it interprets cannot legally be removed by any act of congress. Several Supreme Court cases have upheld that Congress may not remove any power granted to the President by the constitution, including In Re Sealed Case 310. F. 3d (2002) which asserts that “the President has inherent constitutional authority to collect foreign intelligence – authority Congress may not circumscribe”. This case clearly upholds that even if the FISA Act were to make the President’s actions illegal, this illegality is invalid because it removes a power granted to him by the constitution. The fact that the Supreme Court has upheld the President’s authority to conduct warrantless domestic collection of foreign intelligence, coupled with the fact that this power cannot be removed by congress, clearly gives the President constitutional authority to conduct the warrantless wiretap program.

Constitutionality aside, the Foreign Intelligence Surveillance Act itself has a caveat in it which allows for foreign intelligence collection agencies to conduct domestic collection without obtaining the warrant. US Code § 1802 states that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year”. Although there was no warrant acquired from the FISA Court to conduct the wiretaps, Attorney General’s approval was sought and given. It is not clear why the press has chosen to completely omit this section in the law during it’s reporting, but the nomenclature is very clear. If there were any confusion about the wording of that section of the FISA Act, the process of obtaining Attorney General approval for domestic intelligence collection is re-iterated in Executive Order 12333 Section 2.5 (1980) which states that “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes”. This Executive Order was passed 26 years ago and was not challenged until the recent actions of the Bush Administration. In addition to the President seeking approval of the wiretaps before conducting them, he also sought the legal counsel of the Attorney General before the start of the program in order to ensure it’s legality. The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself. Even if the program were proven to be illegal, the President’s actions could never be because he was operating within established procedure and precedence.

The third argument that can be made for legality stems from Congress’s “Authorization for the use of Military Force” against Al-Qaeda. The “Authorization for Use of Military Force Against Terrorists” (AUMF) passed by Congress Section 2(a) authorizes the President to “use all necessary… force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks.” This authorization, much like ones in the past, puts the President in similar executive position as previous Presidents during time of war. The Attorney General (in a letter to congress, 28 February 2006) asserts that this AUMF, authorizes the President to use “all necessary force” against Al-Qaeda includes the conducting of “foreign surveillance”. Furthermore, domestic surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person “affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.” (28 February, 2006). This assertion was reiterated in a Department of Justice memorandum which explains that the President was purposefully given broad authority to combat Al-Qaeda because of the nature and uniqueness of the threat (2). That authority can be used “to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.” (3). The President was given broad authority to combat Al-Qaeda’s domestic threat, and part of that domestic threat includes Al-Qaeda’s domestic conduct. The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance.

Contemporary issues notwithstanding, history has provided precedence for conducting programs such as the Terrorist Surveillance Program. The war against Al-Qaeda is the first congressionally sanctioned war since World War II in which the United States is combating an enemy that has the capability of directly attacking the United States of America. The act of warrantless wiretapping itself has been engaged in by three previous US Presidents. Woodrow Wilson conducted wiretaps on all incoming wires from outside of the country during World War I under the guise of special “War Powers”. Franklin Roosevelt authorized a similar warrantless program during World War II, even after the Supreme Court had established the need to obtain a warrant for such actions in 1924. The “War Powers” President Bush is afforded to fight Al Qaeda should at least be considered partially as strong as those of Wilson and Franklin. This is not only because of the AUMF’s language, but also because Al Qaeda is the only foreign power to threaten US soil since World War II. More recently, President Richard Nixon conducted warrantless wiretaps outside of the declaration of war during the 1970s, citing his intelligence collection authority and nothing else as justification (Halperin, 2). These actions are consistent with the historical trend of Presidents taking on special powers, sometimes at the expense of civil liberties or outside of the scope of presidential authority, to combat temporary and unique threats. From Abraham Lincoln’s declaration of martial law to Roosevelt’s seizure of the steel industry (Fisher, 106), Presidents have exercised special powers specifically tailored to unique threats. These threats are not limited to security threats, and the expansion of power in the time of crisis is not limited to powers of war or violation of civil liberties. One especially compelling example of this was the expansion of the scope of Presidential power during the administrations of Roosevelt, Truman, Eisenhower and Johnson to force state and local authorities to enforce anti-discrimination laws (Fisher, 107). Although this is often argued as being well outside of the scope of Presidential power, it was necessary to combat the uniqueness of the problem at hand. President Bush’s Terrorist Surveillance Program is more regulated, smaller in scale and more within the scope of Presidential powers than the majority of “War Powers” exercised by his predecessors. Presidents have used “War Powers” and “Special Powers” to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bush’s program falls well within the traditional scope of appropriate presidential power during times of national crisis. Furthermore, it pales in comparison to the actions taken by his predecessors in similarly grievous times of crisis.

Despite the evidence presented, the question of the programs legality is as of yet undetermined. Circuit Court Judge Taylor recently ruled the program was illegal in the case of ACLU vs NSA on the 4th of September, 2006. This decision, although suspended and not yet an established precedence, could be taken to show that there are still many questions remaining about the legality of the program. This is called into questions by many critics of the decision that have argued Judge Taylor failed to address the specific statues authorizing the President’s actions as well as established judicial precedence. The largest problem with the decision stems from it’s blatant failure to address the President’s constitutional intelligence gathering authority (Taylor, 2-3). The judge’s argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution. The decision will not be final until it is upheld or overturned by the Supreme Court in appeal, so for now the question of the constitutionality of the Terrorist Surveillance Program is still up for debate.

In the end, the question of the Terrorist Surveillance Program’s legality is one that includes many long standing legal debates. These debates include how to interpret the Constitution, presidential power in times of war and subtleties in the nature of the balance of power between the three branches of government. The nature of presidential power during times of crisis is one of those often debated issue. There, however, may never be a definitive interpretation of the constitution which determines what the scope of the President’s special powers is during times of crisis. Despite the gray areas in issues such as War Powers and Authorization for use of Military force, the constitution and US Code are very clear. The President has the established constitutional authority to conduct this program. Not only that, the President clearly followed established statutes in the way he chose to conduct the program. Many quickly dispel the arguments of constitutional presidential power and presidential “War Powers” in a time of war by saying the nature of our nation’s understanding of the Constitution has changed. In response to those that would argue the nature of presidential power has changed over time, Attorney General Alberto Gonzales points out that even as recently as the Clinton administration this type of conduct was acceptable for a President, “During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment” (2). President Bush conducted the terrorist program within the scope of his power as determined by the constitution, congressional acts, judicial rulings and historical precedence. Therefore, until the Supreme Court weighs in on the issue, the Terrorist Surveillance Program will have to remain innocent until proven guilty.

Works Cited

“ACLU vs. NSA judgment.” Wikisource, The Free Library. 3 Sep 2006, 14:19 UTC. 4 Sep 2006, 09:35

Halperin, Morton H. “A Legal Analysis of the NSA Warrantless Surveillance Program” (17 Jan, 2006) Washington D.C.

United States Congress. “Authorization for Use of Military Force” Public law 107-40. (18 Sep 2001) Washington D.C.

Fisher, Louis. Constitutional Conflicts Between Congress and the President University of Kansas Press (1991) Lawrence, Kansas

President Regan, Ronald W. “Executive Order 12333–United States intelligence activities” (December 4th, 1981) Washington D.C.

Whitehead, John W. “Forfeiting ‘ENDURING FREEDOM’ for ‘HOMELAND SECURITY’: A constitutional analysis of the USA Patriot Act” American University Law Review 51 (2002): 1081-1153

U.S. Supreme Court. In Re Sealed Case, 310 F. 3d 717, 792 (2002) Washington D.C.

Department of Justice “Legal Authorities Supporting the Activities of the National Security Agency Described by the President”. (19 Jan, 2006) Wasghinton D.C.

Moschella, William E. “Letter in Response to Questions From Chairman Sensenbrenner.” US Department of Justice (March 24, 2006) Washington D.C.

Gonzales, Alberto R. “Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States” US Department of Justice. (February 6, 2006) Washington D.C.

Gonzales, Alberto R. Testimony before the Senate Judiciary Committee. CongressDaily (28 Feb, 2006) Washington, D.C.

Kozak, David C. and Ciboski, Kenneth N. The American Presidency Nelson Hall Inc. (1985) Chicago, Illinois

5th Circuit Court of Appeals. United States Vs. Brown, 484 F. 2d 418 (1973) New Orleans, Louisiana

U.S. Supreme Court. United States Vs. United States District Court (”Keith”), 407 U.S. 197, 308 (1972) Washington D.C.

U.S. Congress. “U.S. CODE TITLE 50 CHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE” (1978) Washington D.C.

Erasmussimo

Stephen, thank you for the thoroughly researched and well-reasoned argument. I'd like to offer some minor objections:

First, your opening sentence attributes these purported Presidential powers to the Constitution -- yet you do not offer any evidence from the Constitution itself to justify this assertion. Your evidence is all in the form of case law. You would be correct to assert that there is a body of case law to justify the President's claims, but in the absence of any direct evidence from the Constitution itself, your statement as it stands is false.

Indeed, the Constitutional argument is pretty strong in the other direction. The wording of the Fourth Amendment is black and white: the President can't search without a warrant. I remind you that the Fourth Amendment is an amendment to the Constitution, adopted after the original Constitution. As such, it trumps all the material in the original Constitution. Thus, the basic Constitutional argument is clear and compelling against the President's use of searches without warrants.

Your second paragraph surprised me. As you have presented the material, it seems like a very straightforward case. I suspect that you are leaving out some crucial additional information; otherwise, it seems to me that the Attorney General's published defense of Presidential warrantless wiretapping would have mentioned this consideration. I would also chide you for this blooper:

"The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself."

May I remind you that even Mafia dons keep lawyers close at hand to advise them on the specifics of the law? Consultation with lawyers does not demonstrate intent to obey the law.

Your third argument, that the AUMF legalizes warrantless wiretapping, strikes me as poorly reasoned. Your basic argument is that Congress authorized the use of military force; this authorization constitutes a declaration of war; a President during wartime has extra-Constitutional powers; therefore warrantless wiretapping is justified. I challenge every step of this reasoning process bar the first. The AUMF did not constitute a declaration of war; only Congress has the authority to declare war and they explicitly declined to do so. Congress explicitly declined to grant the President any special war powers. Their grant of power was not as broad as a declaration of war, and so the President is not justified in claiming broad war powers. Second, while the courts have historically been very deferential to Presidential powers in times of war, this does not mean that the Constitution is suspended during times of war. Every single deviation from Constitutional restrictions must be adjudicated by an independent authority.

(Along these lines, I will also chide you for citing claims from the Justice Department in defense of Executive power. The Justice Department works for the President -- their opinions on this matter have no standing as independent opinions.)

I'll also attack the reasoning in the final sentences of that paragraph:

"The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance."

These sentences deliberately blur the line between legal intelligence collection and illegal intelligence collection. Yes, intelligence collection is a good thing -- but a line must be drawn somewhere and these sentences suggest that no line should ever be drawn. Taken at face value, these sentences could be used to justify torture, random incarcerations, and other forms of tyranny.

Another pair of sentences can be read in a manner completely antithetical to your intent:

"Presidents have used “War Powers” and “Special Powers” to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bush’s program falls well within the traditional scope of appropriate presidential power during times of national crisis."

With these sentences, you equate Mr. Bush's actions with false imprisonment. Perhaps you have no problem with the idea of false imprisonment. I think that most citizens do have a problem with that notion, and would rather not see that kind of behavior from our President.

Here's another sentence I'd like to jump all over:

"The judge’s argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution."

First, let's consider that nasty little word 'ideological'. If the judge's analysis is ideological, then is not your own analysis equally ideological? I suggest that your insertion of this adjective is pejorative.

Next, you ding the judge for a failure to address the Presidential powers granted in the Constitution. This criticism strikes me as ironic, because you too failed to address any such powers. Again, your citations are all from case law, not the Constitution.

I note a further irony in your discussion of the change in the nature of Presidential power. Your argument is a bit unclear to me, but let me remind you that Presidential power has expanded enormously in the last 70 years. Most Constitutional scholars agree that the Founding Fathers would be shocked to discover how much Presidential power has grown. Limiting the power of the Presidency was a major goal of their efforts, and I'm sure they would be much disappointed to see how their work has been subverted in the last 70 years.

Another ding about logical procedure: you quote a Clinton Administration defending Presidential power. This suggests to me that you see this issue in partisan terms. "See? Even the Democrats support me!" The problem here is that this clearly paints you as a partisan. I don't care what the Democrats say, or the Republicans say; they're ALL partisans who will try to twist things in their own direction whenever possible. Let's ignore their prating and concentrate on the law, shall we?

Lastly, I'll ding you for your final sentence, in which you suggest that the TSP should remain innocent until proven guilty. While your statement is obviously metaphorical, it errs in its suggestion that a political program has rights. Only people have rights. You can't indict a program, and you can't find it innocent or guilty. You instead indict people for their actions. Although the case in question was not a criminal case, its implications are clear: Mr. Bush's actions have been found to be in violation of the law. As such, the determination of guilt or innocence has already been made. Using your metaphor in reverse, Mr. Bush has already been determined to be guilty. (And in fact if the verdict is upheld then impeachment becomes a logical necessity in the mind of any non-partisan observer.) We are now in the appeals phase; perhaps the verdict of the court will be reversed. But it is now too late to speak metaphorically of presumption of innocence.

Bob

Era,

I couldn't have said it better. Thanks.

Frederick Hamilton

ACLU v NSA. Enough already. Both sides are well reasoned. Both sides as Professor Stone noted 9 months ago have legal merit.

Judge Taylor's decision will be reviewed. Her decision may or may not be upheld. I side with the view that she is in error.

All the pontificating won't mean much from any of us. Sometimes the constitutional scholars get it right, other times they miss the mark (FAIR v Rumsfeld). I suspect the case will make its way to the Supremes, and then we will all know which argument was successful in the end. Until then, just a lot of blather. So many articles and views on both sides to fill a textbook.

Same with the recent post on military tribunals. Hamdan forced Congress' hand. Congress must act to allow for military tribunals per the Supremes. It appears they will bite the bullet and pass a military tribunals bill. At that point we'll see what kind of handiwork Congress comes up with. Bush claims if the bill doesn't protect CIA, NSA, DOD professionals from frivolous lawsuits and International War Crimes tribunals by specifically articulating the bounds by which they are to be judged (McCain terrorist detention law for instance), then he will opt for no program rather than put our professionals working to protect us in jeopardy. Again, we'll see won't we.

Bob

y'know fred, today the conservative are in power. tomorrow, who knows? i'd think that while the smart guys are in power though, they'd pass some amendments further limiting what all 3 branches of our government can do. That way, when the liberals get their turn (and they will...) they will be tied up in knots and unable to pass any of their crappy laws.

of course, if a liberal was president right now, i'd be saying the same thing, but, y'know, in reverse...pass amendments now to keep the conservatives from passing crappy laws when they get back inpower.

curtisstrong

C´mon Frederick,

Are you honestly asking people to stop talking about this stuff? This is what people do, and it´s a pretty damn good excercise in democracy and how far people are willing to let the government go. Never stop talking people. Never.

Second, "Bush...will opt for no program rather than put our *professionals* working to protect us in danger." If that´s true, then every ounce of respect I have for President Bush as a person will be gone. If President Bush is willing to place the security of a few interrogators (who, by the way, will NEVER, EVER be prosecuted by any international court...acknowledged by Bush himself in his latest interviews) above the security of the American people, then he can go to hell.

It really shouldn´t be that hard for a President of the United States, with two houses of Congress and numerous unbelievably vast amounts of lawyers and other staff at his disposal to READ what international courts have held regarding the Geneva Conventions. Instead, he´s going to act like a little child (contrary to everything he´s ever said about "protecting America"), declare interpretation of an international document impossible, and shift the blame to someone else. Unbelievable.

Erasmussimo

There are two hypotheses to explain Mr. Bush's real intentions with this bill. The ostensible reason, cited by Mr. Hamilton, is that Mr. Bush merely desires legal clarity. If this were the real reason, then Mr. Bush would not need a special bill. He would try the detainees in normal courts, using standard legal procedures. Such an approach would be beyond all criticism.

By refusing to take this route, Mr. Bush demonstrates that legal clarity is not his real objective -- he wants to imprison people, regardless of the legalities. His bill seeks not legal clarity (it opens up all sorts of new Constitutional questions), but legal cover for actions that clearly violate the Constitution and the Geneva Conventions.

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