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December 21, 2005

Either Take It All The Way Or Walk It Back

Bruce Schneier makes a key point here on the implications of the Bush administration's limitless conception of executive power:

If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

That's exactly right. And it can be taken further, too: the president's own arguments militate against congressional action. Since his primary line of attack against the snoopgate coverage is that it warns the enemy (as they would never imagine that America could possibly be so gauche as to spy on them), why should Congress renew the PATRIOT Act? If Bush can do what he wants anyway, why telegraph to the terrorists that our intelligence services have a freer reign? Fewer walls? Hell, why not take the argument all the way to its strategic conclusion? Propose and pass a bill dramatically limiting executive discretion and sharply constraining the actions of our intelligence services...and then ignore it. To track Bush's reasoning, terrorists would become less careful and we could snatch them with ease.

But Bush doesn't propose that. Americans tend to think their laws should matter, with the actions of the executive roughly comporting to the amount of constitutional and statutory freedom he's been granted. Congress supposedly exercises real oversight and wields tangible legislative authority, they're not hanging around to provide diversionary cover for the president, as played by Harrison Ford. If Bush thinks the country should run differently, he should start that debate by proposing those amendments. But if he doesn't, then he can't just call "Calvinball" on FISA and espionage and berate the critics because they're not hip to the new rules.

December 21, 2005 | Permalink


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That argument makes no sense at all. It is perfectly legitimate to argue that the President has authority in certain areas and Congress cannot abridge them without making the claim that Congress has no authority at all and the President can do anything he wants.

A perfect example, is if Congress passed a law that said the President cannot pardon any prisoner who had made a contribution to the Republican Party. Congress does not have the power to impinge on the Presidential power of pardons. That doesn't mean though that Congress has no power in the entire sphere of law enforcement and cannot pass sentencing guidlines or make certain activities illegal.

Posted by: Dave Justus | Dec 21, 2005 3:02:37 PM

It's as if he thinks he's the protaganist in a Tom Clancy movie.

Posted by: Cathy | Dec 21, 2005 3:27:36 PM

Few facts are out. You don't know the sources of authority Bush is using. No inquiry has even been set.

But *HEY*! Ain't it grand?

At least Ezra has somthing besides his reading list to blog about. I suspect that Bush had legal counsel and reasoning. Lawyers more informed than Ice Weasel, Ezra Klein, Pandy-Poo and others. I will be surprised if you have him "down cold" as you suspect you do.

Every election the left has claimed Bush is stupid, and every time he beats them at their own game.


Posted by: Fred Jones | Dec 21, 2005 3:34:09 PM

"That argument makes no sense at all. It is perfectly legitimate to argue that the President has authority in certain areas and Congress cannot abridge them without making the claim that Congress has no authority at all and the President can do anything he wants."

Dave, how is wiretapping on domestic citizens-- and defining who to wiretap -- exclusively defined by the Executive Branch? And, even if you think it is, how is this logic *not* applicable to the Patriot Act -- what's to stop the Executive from saying the Patriot Act is still applicable while the Legislative Branch allows it to lapse?

Second, you are talking about powers exclusively enumerated within the Constitution, such as pardons. Even you wouldn't argue that the definition of who can be searched, and when, is the exclusive province of the Executive Branch (particularly when you read the 4th Amendment, which requires judicial approval).

Posted by: Chris R | Dec 21, 2005 3:53:00 PM

Dave, please don't respond with "two sides have a view" jive.

I'd like a clear answer on whether searches are defined as the exclusive dominion of the Executive Branch. Please try to cite how the 4th Amendment may contradict with this point of view.

Posted by: Chris R | Dec 21, 2005 3:55:34 PM

Why bother even engage these idiots. There's no serious thought process going on here. They're just doing what they can to derail things. It's called pissing in the pool.

Anyway, Ezra, great point and so obvious, once it's stated, that I feel stupid for not thinking of it myself. This whole situation is so blatantly wrong that it's odd to find any American actually defending bush.

Well, maybe they're not Americans. Maybe, maybe they're al-kayda! terrists!

Posted by: ice weasel | Dec 21, 2005 4:21:27 PM

Chris R,

I probably cannot do that effectively. I do not in fact believe that searches are defined as the exclusive domonion of the Executive Branch. It is clear that for any prosecution, for example, a warrent is required. It certainly seems to me that the Legislature also has some authority in this area, at the least the existance of FISA is an assertion by the legistlature that it does have authority.

Of course any invocation of the Fourth Ammendment as precluding this activity automatically is an assertion that all three branches of Government lack the authority to authorize such a program. If the Executive can't do it because of the fourth ammendment, neither can the Legilature.

The President does have some war time powers and privilages, and many Presidents have asserted that in the realm of national security they are not bound by FISA. I remain unconvinced, but am not willing to be entirely dismissive of this claim either. Certainly the case law that I have seen seems to give the Executive at least some deference in this arena. Whether they deserve as much deference as is being asserted is doubtful to me, but pretending that the Bush Administration is unique in this regard is simply not factual.

I will also note, that my above comment was about the nature of the arguement in Ezra's post, not the substantive question of whether or not the president has this particular power. It is not logical to say that because a President has one perogative in one arena then he has all perogatives in all arenas.

The Patriot Act includes methods for prosecution, rather than merely information gathering, prosecution would of course require a warrent. That is one quick example of why the Patriot Act might still be needed even if the President does have the authority to authorize wiretaps of that nature we are discussing.

I do assert that the President has the authority to conduct surveillance of entirely foreign targets (2 guys talking on a phone in Pakistan for example.) By the arguement above, that would also make the Patriot Act unneeded and unnecessary. That is, frankly, a stupid argument and one that I do not accept.

I hope I haven't dissappointed you with 'two sides have a view' jive. I am trying to gather as much information and as many points of view as possible while making up my mind on this. It is troubling and deserves serious thought in my opinion.

Posted by: Dave Justus | Dec 21, 2005 4:34:12 PM

The President does have some war time powers and privilages, and many Presidents have asserted that in the realm of national security they are not bound by FISA.

"Many" presidents? FISA became law in 1978.
Anyway, that little Drudge lie has already been put to bed.


Posted by: sprocket | Dec 21, 2005 4:45:08 PM

Call me paranoid, but my spidersense started tingling when the shrub pulled the USA out of the ICC. It is quite clear in retrospect that the current administration had every intention of committing the sorts of criminal acts that the international court was created to prosecute.

"The United States of America is the only state that is actively opposed to the new International Criminal Court. US opposition to the Court can be traced back to the adoption of the Rome Statute of the International Criminal Court (Rome Statute) in 1998, where the USA was one of only 7 states to vote against adoption of the Statute. Reportedly a major reason for not supporting adoption of the Statute stems from the refusal of the international community to grant the United Nations Security Council (of which the USA is a veto holding permanent member) control over which cases the Court considered, instead favouring an independent Prosecutor who - subject to safeguards and fair trial guarantees - would make such decisions.

On 31 December 2000, however, President Clinton signed the Rome Statute, which was a positive step in favour of the Court. However, the US position has changed dramatically since the new administration under President Bush took office in 2001. On 6 May 2002, the US government took the unprecedented step of repudiating its signature of the Rome Statute and began a worldwide campaign to weaken the Court and to obtain impunity for all US nationals from the jurisdiction of the Court."

I guess they sort of tipped their hands on that whole utter contempt for the rule of law thing a while ago.

Who needs international law when you got the those pesky brown people living on top of Uncle Sam's suv-juice?

Posted by: Naked Ape | Dec 21, 2005 4:49:11 PM

"Of course any invocation of the Fourth Ammendment as precluding this activity automatically is an assertion that all three branches of Government lack the authority to authorize such a program. If the Executive can't do it because of the fourth ammendment, neither can the Legilature."

Again, not what we're talking about. FISA, enacted by the legislature, mandated judicial review, such as it was. The Executive in this specific case decided to circumvent both FISA (the wishes of the legislature) and the judiciary.

In what cases, specifically, can the Executive Branch compile information concerning potential terrorists that are US Citizens (presumably to, I dunno, arrest and prosecute them, although that might be a quaint view at this time) in which they don't have to have a warrant, again?

Posted by: Chris R | Dec 21, 2005 5:21:39 PM

I believe that their are a number of ways in which information that can be compiled against U.S. citizens for prosecution without a warrent. Information from foreign sources, eyewitness accounts of activities, being caught red-handed with a bomb all could be used for prosecution and don't require warrents.

If you meant, when can the government wiretap or electronically gain information on a U.S. citizen without was warrent and complile and use that information for a prosecution I am pretty sure the answer is never.

However, prosecution isn't the only reason to gather intelligence. Threat detection and prevention is also a valid reason. One could also surmise that indentification for a later warrent could also be a reason to compile information. In conventional war, signals intelligence is conducted all of the time without any plans to use the gained information for a prosecution.

It is of course the last category that we are talking about here. It seems clear to me that such activities are not prohibited by the fourth ammendment, or at the very least that is how judges seem to have ruled on it. The question at hand seems to be whether the specific practices occuring are prohited by FISA, and whether the legislature has the authority to prohit them via FISA in the first place.

The first half of that seems to hang on technical issues that we do not know and that the Bush administration does not want to reveal. If they are correct about the authority issue, then they would not have to reveal them. As to the second question, that seems to legitimately be in dispute among Constitutional scholars and lawyers and there does not seem to be a whole lot of Court precident on the matter.

I would say with a fair amount of confidence, that Judge Roberts and Alito (if he is confirmed) would side with the Bush administration on this issue, which is most likely their primary qualification for the job from Bush's point of view. Their support of executive power is something I have noted before, and admit to being concerned about. As for the other Court members, that is more difficult to say. This doesn't seem to be a case that would divide the court in a liberal/conservative manner.

Posted by: Dave Justus | Dec 21, 2005 5:49:59 PM

I see where you're coming from, Dave, but consider this:

you seem to think that compiling information on US citizens to prevent terrorists is fine and dandy, but using it to detain or convict the citizens would not be constitutionally.

here, I'm confused: 1) isn't the entire point of preventing terrorism to eventually arrest and prosecute them? 2) if we attempt to use this information in a Ct. of law and it is unconstitutional to jail or prosecute a terrorists, isn't circumventing FISA, well, idiotic and self-defeating?

To me, compilation of information vs. using it in court is a distinction without a difference. Let's say we have a suspected terrorist who says via e-mail "hey, let's bomb Brooklyn" and we find this out through this program -- but we can't use it to prosecute the writer or even jail him under the 4th A. Then, what's the freaking point?

And I fear you are correct on the last point. But it doesn't mean anything that 2 -- or, I fear 4, would agree -- it matters whether a majority will. And don't think that this issue seriously complicates Alito's nomination.

PS, a joke:

Cheney presided over the Senate casted a tie-breaking vote.

By doing so, he made his first action as a VP actually envisioned within the Constitution.

Posted by: Chris R | Dec 21, 2005 6:08:38 PM

"The President does have some war time powers and privilages, and many Presidents have asserted that in the realm of national security they are not bound by FISA."

What other realms does FISA operate in, exactly?

Posted by: Ginger Yellow | Dec 22, 2005 6:39:23 AM


In your example, if the brooklyn bomber, we could then get a warrent, monitor further communication, and quite likely prevent an attack. It is hugely unlikely that anyone we have identified as a terrorist, whether the identification was from a legal warrent or an illegal wiretap would be able to successfully pull off an attack. Later wiretaps with warrents might enable prosecution as a terrorist, but I am much more interested in preventing the attack in the first place than in prosecution. Prosecution is a nice cherry on top, but not the main goal.

If we had identified the 9/11 hijackers during the summer of 2001, we would have been able to take plenty of actions and prevented 3000 deaths. Even if we were never able to prosecute them for terrorism, neutralizing them as an effective attack cell would have certainly been worth it in my opinion.


Presidents have asserted that FISA merely adds too, but cannot take away from, their inherent authority. It also has provisions that allow for wiretapping that would be admissable as evidence for prosecutions. In particular, Presidents have asserted that as the Commander in Cheif, they have unique and inherent authority to conduct war time operations, which includes signals intelligence.

Posted by: Dave Justus | Dec 22, 2005 9:19:34 AM

Presidents have asserted a lot of things. The Supreme Court says otherwise. As does the constitution and FISA. What is the point of any legislation regarding national security or war conduct if it is by default superceded by the president's wartime authority? Has Congress been passing defunct laws for the last 200 years?

Posted by: Ginger Yellow | Dec 22, 2005 9:32:03 AM

Its seems to me that Ezra is arguing that the President's position is one of omnipotentence in his duties as protector of the nation and Dave is arguing that no the President's position is that in some respects the President's power trumps the law. (Again, not Dave's position, but the President's feeling on the matter.) Thats what I got out of it anyway.

Well, another example of where I personally believe the President overstepped his bounds is in the torture "debate." So clearly the President beleives that there is more than just wiretapping where he can go above the law and havig ng said that, I'm willinto invite Ezra's original definition as the more likely of the two.

Posted by: Adrock | Dec 22, 2005 9:58:14 AM


Congress certainly has some powers. They could, for examle, refuse to fund the NSA which would bring this to a screeching halt. There really are not that many areas where Congress has passed laws relating to conduct of a war that I can think of. It is a fairly limited situation, and in most cases Presidential authority is clear.

Certainly the fact that the 'war on terror' will be both long term and heavily engaged on a domestic front means that there is cause for concern about assertion of war time powers in general over this conflict. There is also the counter that American lives are at stake, and ultimately it is the President's duty to protect them. It probably does require a balance in some ways.


Certainly there are good arguements that the President has overstepped his bounds on the surveillance issue and the torture issue. I don't think it is fair to characterize this as saying the President holds the position that there are no checks on his authority. He may believe this I suppose, but we don't have enough evidence to make that conclusion.

I would also say that while an arguement that is based upon the proposition that Bush is an evil and power hungry man may well please those who already feel that way, it is unlikely to convince anyone who doesn't believe that (a substantial number of voters) and when you make that your first premise, any other more palatable arguements you have are likely to be ignored.

Posted by: Dave Justus | Dec 22, 2005 12:41:46 PM

Geeze, Dave. "Ginger" is a foreigner and really has no dog in this fight. Also, Ginger is from what is now becoming a totalitarian state. No question. All handguns and most all other weapons are illegal to simply possess in one's home. Next, when the weapons are gone, they do this....


Posted by: Fred Jones | Dec 22, 2005 1:10:00 PM


Ginger is a thinking being and thus able to comment on things that are not necessarily directly relevant to one's personal expirience. Whether or not Ginger lives in a totalitarian state is irrellevant.

However, since you feel strongly that those who have no dog in a fight shouldn't comment I expect we will not see any more comments from you about gay marriage until you have announced that you are a homosexual. I for one will welcome the quiet.

Posted by: Dave Justus | Dec 22, 2005 2:06:04 PM

Didn't you get the memo, Dave, that this subject is off limits? According to all the liberals, you must be a latent homo for even mentioning this.

Here's the position, Dave, just so we are clear:

You can be just as much of a fruitcake, Davey, as you please and it wouldn't affect me very much at all. However,it affects everyone when a tiny minority attempts to change the very foundation of our society, and that's the only issue that I really care about.

Other than that, go for it, Susan!!!

Posted by: Fred Jones | Dec 22, 2005 2:56:00 PM

Ginger is an American citizen who happens to be living in Britain. I have plenty of dogs in this fight.

"However,it affects everyone when a tiny minority attempts to change the very foundation of our society, and that's the only issue that I really care about."

Yeah, Cheney and his pals piss me off, too.

Posted by: Ginger Yellow | Dec 23, 2005 6:33:27 AM

Yeah, Cheney and his pals piss me off, too.

Then you understand the feeling. Only the issues are different. I affirm your right to feel this way. It's a free country. I also expect you to uphold my right to feel this way on my issues. You don't have to agree with me. Just understand that I have that right.

Posted by: Fred Jones | Dec 24, 2005 9:07:30 AM

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