Alberto Gonzales Sets the Record Straight on Surveillance

The language is evident, and it is inherent of use. If the passage says that the president has fifteen days in which to perform those actions and then must go back to congress for further approval, not doing so is wrongful.

It is a requirement. I can't believe you don't understand that, or are pretending not to understand that. The steps of what must be done after the 15 days is clearly spelled out. Failure to comply would put one in violation of the law.

It is just like paying taxes. You have until April 15th to do that. Failure to do so would make someone in violation of the law.

 

ROXRAN: "I'm just a simple caveman"

 

Senators pointed out that the Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to regulate national security surveillance, requiring a (secret) warrant from a special court, but also allowing for retroactive issuances of warrant as well as a 15-day grace period after the start of a war. FISA provides for civil and criminal penalties for its violation, and has a provision indicating it is an exclusive source of law on the matter, but that provision has an exception for cases where surveillance is otherwise permitted by another statute.(such as the AUMF - ...RG) The Bush administration has argued that the Authorization for Use of Military Force (AUMF) passed by Congress after the attacks of Sept. 11, 2001, constitutes such a statute to the extent there are implicit authorities granted by authorizations to use military force, analogous to the authority to take enemy combatants captive recognized by outgoing Justice Sandra Day O’Conner’s plurality opinion in Hamdi v. Rumsfeld. The Bush administration argues in the alternative that, even if such authority did not flow from the AUMF, the president has the authority under the Constitution inherent in his status as commander in chief.

Alito forecast correctly that litigation could arise over the matter, with civil suits launched shortly after the conclusion of the question-and-answer portion of confirmation hearings.

Alito indicated that no one was above the law, not the president, not Congress, and not the Supreme Court, and that all must comply with a statute that is in conformity with the Constitution, while the Constitution would “trump” a statute that was in conflict with it. - (such as the conflict in question with FISA -...RG)

He indicated that the first stage in his inquiry in such a matter would be to analyze the relevant statutory language, starting with the FISA provision about the extent to which FISA occupies this area of law. He also indicated, repeatedly on questions regarding executive power, that Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer would be the framework to look to when balancing presidential and congressional power in the area of national security.

In fact, Alito, Chief Justice John Roberts, and senators who chose to speak on the subject either endorsed, or created the impression they viewed positively, the Jackson framework, although there appears to be the potential for at least some confusion. Under that framework, the president’s power is deemed to be at its highest where Congress has acted by statute and the president acts in accord with Congress. If Congress has not acted, the president is potentially in a zone of twilight as to the extent of his powers. If Congress has acted, and the president acts in conflict with the congressional action, the president’s power is at its lowest ebb. But it is not non-existent. Part of the crux of the analysis, whether stated or implied, is that separate from such an analysis both the president and the Congress have, or do not have, power under the Constitution to act in certain areas. The more precise rendering of the third part of the Jackson framework is that, where the president and the Congress are in conflict, the president possesses all the power the Constitution grants the president to act in the area in question minus the power the Constitution gives to Congress, to the extent Congress has exerted its power. (which enhances Bush's broad allowance to do what is necessary to protect the nation derived from the Constitution - ...RG)

Another key point to remember is that the Supreme Court seeks to avoid constitutional confrontations. If a matter can be resolved by statutory interpretation, and the statute is constitutional, that potentially can resolve the matter and avoid a constitutional “showdown.” (will the neo-demos let go of their crazy notion? -...RG) For that matter, within the framework of statutory interpretation, if the plain text of the statute can resolve the matter, there typically is no need even to delve into legislative history either, whether the legislative history is solely congressional or includes the potentially novel approach of considering presidential signing statements.

The President is justified in his actions. He is in keeping with principled law, and how the Supreme Court views procedural actions with regards is clearly evident of this thought process as outlined and of high consequence. The bottom line is the neo-demos will do what they do best to no satisfactory recourse...Sour cheese, and stale whine gets old indeed.

http://www.cdi.org/news/law/alito-nsa-fisa.cfm

 

But again the AUMF, does not give the president the power to wire tap. In fact it expressly forbids him from wiretapping.

 

You know fish, I realize you feel you are a svelte-looking lawyer, but posting your pic is unnecessary...

 

But again, the Supreme cout has already explained the favor of where they would go in statutes which conflict with the Constituion as argued by Bush...

 

We don't know that in regards to FISA until it goes before the court.

 

We know we have explanation on the thought process as I posted/linked...Favorable for Bush. Unfavorable for whine and cheese delegation.

 

When did they do that?

Whatever article you just cited has an absolutely dreadful interpretation of the Jackson Presidential Power framework. Here are Jackson's words specifically, "when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." How the hell could that be interpreted to justify Bush's decision to abandon FISA.

Not to mention that the current court has already ruled against the Bush administration in one of the enemy combatant cases and more of those will still funnel through the court.

 

The interpretation is not ostrasized wording, it actually is directly from actual wording...Please re-read and comprehend the following from the previous post I had: The more precise rendering of the third part of the Jackson framework is that, where the president and the Congress are in conflict, the president possesses all the power the Constitution grants the president to act in the area in question minus the power the Constitution gives to Congress, to the extent Congress has exerted its power. (which enhances Bush's broad allowance to do what is necessary to protect the nation derived from the Constitution - ...RG)

 

But congress has actually asserted its power to NOT ALLOW warrantless wiretaps. This case would seem to show Bush over reaching in his power yet again.

 

Not if the question of who is right goes to the Supreme court, as it is implied. The wording is clear from my post.

 

Except you omit the next two sentences of the opinion.

"Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
.

 

No Checks, Many Imbalances

By George F. Will
Thursday, February 16, 2006; A27

The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 -- the Authorization for Use of Military Force (AUMF) -- the resulting legislation might be longer than Proust's "Remembrance of Things Past." Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.

But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes -- going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.

Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance -- and that if the administration had asked, Congress would have refused to authorize it. The first assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it. Did the administration, until the program became known two months ago? Or was the AUMF then seized upon as a justification? Equally implausible is the idea that in the months after Sept. 11, Congress would have refused to revise the 1978 law in ways that would authorize, with some supervision, NSA surveillance that, even in today's more contentious climate, most serious people consider conducive to national security.

Anyway, the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution's text and do not strictly construe the language of statutes.

The administration's argument about the legality of the NSA program also has been discordant with its argument about the urgency of extending the USA Patriot Act. Many provisions of that act are superfluous if a president's wartime powers are as far-reaching as today's president says they are.

And if, as some administration supporters say, amending the 1978 act to meet today's exigencies would have given America's enemies dangerous information about our capabilities and intentions, surely FISA and the Patriot Act were both informative. Intelligence professionals reportedly say that the behavior of suspected terrorists has changed since Dec. 15, when the New York Times revealed the NSA surveillance. But surely America's enemies have assumed that our technologically sophisticated nation has been trying, in ways known and unknown, to eavesdrop on them.

Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."

The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration. This faux toughness is folly, given that the Supreme Court, when rejecting President Harry S Truman's claim that his inherent powers as commander in chief allowed him to seize steel mills during the Korean War, held that presidential authority is weakest when it clashes with Congress.

Immediately after Sept. 11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the Sept. 11 terrorists made.

But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.

georgewill@washpost.com
© 2006 The Washington Post Company

post

 

Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11
By JOHN W. DEAN

http://writ.news.findlaw.com/dean/20060210.html
----
Friday, Feb. 10, 2006

Vice President Dick Cheney has stirred up an old fight in Washington. He sent a rookie, however, to make his case publicly. It did not work.

Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon's Justice Department invoked the views of King George III.

King George III's take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government's lawyers that warrantless searches were among the very reasons the colonies fought for their independence.

As for the reaction to the Gonzales testimony, a New York Times editorial described it as "a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling." The Times also noted committee chairman Arlen Specter's analysis of the Attorney General's legal position: It "just defies logic."

The Illogic Of the Bush Administration's Position on Congress' Law and Views

Chairman Specter is correct. Gonzales' position is that the President can make his own rules, notwithstanding the existence of a federal statute - the Foreign Intelligence Surveillance Act (FISA) - that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies "the equilibrium of our constitutional system" to use Chairman Specter's words - treating Congress' clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law.

Equally illogical is Vice President Dick Cheney's position -- and if anyone does not believe that Cheney is not behind this ruckus, they do not know Cheney or his history. Let me start by describing his give-no-quarter stance.

After the Attorney General's testimony concluded, and given the doubts expressed about it by both Republicans and Democrats on the Senate Judiciary Committee, PBS newsman Jim Lehrer asked Cheney if President Bush would cooperate with Congress to "settle some of the legal disputes about the NSA surveillance program?" Cheney responded with a polite, hell no. (Incidentally, this was Cheney's first interview with other than a conservative news person.) "We believe, Jim, that we have all the legal authority we need," Cheney said. "[The President] indicated the other day he's willing to listen to ideas from the Congress, and certainly they have the right and the responsibility to suggest whatever they want to suggest."

The President will listen to ideas and suggestions from the Congress, but he will not follow a law it has written (and a prior President has signed into law) on the subject? This is not exactly a logical stance.

Congresswoman Wilson's Call For Details: Initially Resisted, Finally Addressed

Nor is the on-again/off-again stance the administration has taken regarding whether it will even share with Congress the details of the NSA surveillance program.

The off-again stance was simply absurd. With every indication suggesting that the President directed the NSA to violate federal law, the Administration seemed to maintain that Congress somehow lacked even the authority to investigate the most basic facts relating to the illegality: Who, what, when, where and how.

At first, the Administration refused even to brief the House intelligence subcommittee that oversees the NSA. Laudably, the Committee's Chair, Heather Wilson, R-N.M., subsequently broke with the Administration and called for a full review of the NSA's program. Initially, the White House once again resisted. But finally, it instructed the NSA to brief the House subcommittee.

It wasn't logic that made the Administration capitulate, of course. It was a tactical, political decision: an effort to not let too much steam build among Congressional Republicans on this issue. What I have called illogical, former Georgia Congressman Bob Barr appropriately described as a kabuki dance with Congress in his recent column for this site.

Cheney Wants To Swing the Pendulum Back on the Executive Power Issue

Actually, all this is something of a periodic Washington ritual. And no one enjoys beating this drum to keep the executive power issue alive more than Dick Cheney. It may, in fact, be the reason he selected himself to be George Bush's Vice President.

"In the aftermath of Vietnam and Watergate," Cheney recently told the Wall Street Journal, "there was a concerted effort to place limits and restrictions on presidential authority." There were "a series of decisions," he explained, "that were aimed at the time at trying to avoid a repeat of things like Vietnam or ... Watergate."

"I thought they were misguided then," he continued, and "given the world that we live in [today] that the president needs to have unimpaired executive authority." Cheney said the only restraint on the president should be "the Constitution." He did not say, however, as he has on other occasions, that it is the president who says what the Constitution means, as far as his own duties and responsibilities.

But that point of view is implicit in Cheney's comment that "the pendulum from time to time throughout history has swung from side to side--Congress was pre-eminent, or the executive was pre-eminent--and as I say, I believe in this day and age, it's important that we have a strong presidency."

This View Long Predated 9/11: Startling Statements in Iran-Contra Minority Views

Do not, however, mistake Cheney's reference to "this day and age" as having anything to do with terrorism. Long before 9/11, Cheney was pushing this cause.

To understand Cheney's position, he suggests that others "go back and look at the minority views that were filed with the Iran-Contra report, [and] you'll see a strong statement about the president's prerogatives and responsibilities in the foreign policy/national security area in particular."

If one does as Cheney says, as I have, what will be found is rather startling, to say the least.

The so-called Iran Contra report to which Cheney is referring emerged as part of a five-hundred page final report of a Congressional investigation which lasted eleven months. The investigation was undertaken by a joint committee of both House and Senate, of which then-Representative Dick Cheney was Vice-Chair.

At issue was whether the Reagan Administration had ignored the Boland Amendment, a 1984 law that restricted the CIA's use of appropriated funds to support the Nicaragua Contra movement - and, relatedly, whether Congress had been properly informed about the Administration's actions.

The majority report asserted that the entire affair "was characterized by pervasive dishonesty and inordinate secrecy." But Cheney authored a minority report - joined by several other Republicans, though not all.

Cheney's report took a very different view: He called the failures of the Reagan White House to comply with the laws "mistakes," insisting they "were just that -- mistakes in judgment and nothing more."

These so-called mistakes were actually serious criminal offenses according to Independent Counsel Lawrence Walsh, who successfully prosecuted some eight Reagan officials for their mistakes. All eight, however, either had their verdicts reversed on technicalities, or were pardoned by President George H.W. Bush. The George W. administration hired many of these people, and has made the records of George H.W. Bush disappear.

Somewhat astoundingly, Cheney's minority report not only defended the White House's lawbreaking but also scolded Congress for passing the relevant laws in the first place. Congress, he argued, was "abusing its power" when it adopted laws restricting the president's spending of money to aide the Nicaraguan Contras. "Congress must recognize that effective foreign policy requires, and the Constitution mandates, the President to be the country's foreign policy leader," Cheney's report declared, ignoring the fact the Constitution gives Congress exclusive power over the purse.

Clearly, Cheney's mindset about the Congress vis-à-vis the president has changed little since 1987. His position, however, is far from as solid as he claims.

Presidents Do Not Have Exclusive Authority in National Security

Since the time the Constitution was adopted, there has been an unresolved (if not irresolvable) debate over the allocation of foreign policy powers between Congress and the president. There are highly respected authorities on both sides of the question. No wonder, for as Harvard professor and presidential powers scholar Edwin S. Corwin explained, the Constitution itself "is an invitation to struggle for the privilege of directing American foreign policy."

Corwin added, however, the "verdict of history … is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the President." (Emphasis in original.) If there is a more accurate assessment of these powers, I have never found it.

Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces -- the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches."

Madison believed the meaning of this great charter would "be liquidated and ascertained by a series of particular discussions and adjudications." But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs - each suitable for citation by one side in the ongoing debate.

Cheney, and those who subscribe to his point of view, find solace in the Court's 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling - which recognized President Franklin Roosevelt's preeminence in foreign policy.

Meanwhile, those who believe presidential powers in foreign affairs may be constrained by laws passed by Congress, find support in the Court's 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. There, the Court directly prohibited President Truman from seizing the nation's steel mills for military needs during the Korean War, on the ground that Congress, by law, had prohibited using such means to settle a strike.

Both of these precedents stand. But the Youngtown ruling, particularly the concurrence by Justice Robert Jackson, has long been considered the best statement of the law. Still, with both decisions on the books, the "discussions and adjudications," which have been going on for two centuries now, have never been fully judicially resolved.

I believe they have been politically resolved, however. Moreover, Bush and Cheney's presidency presents a clear-cut case of a violation of that political resolution - for it has pushed the exclusivity of the president in matters of national security further than any predecessor, including the Nixon Administration, did. For that reason, I will return to this subject in a following column.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

 

Regardless, the highlighted part is not diminished and speaks volumes...

 

Yes it is because the next two sentences speak volumes as to what the court's options are. The next sentence is key. "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."

Functionally, the only thing the court can do is overturn FISA which seems virtually impossible. In other words, the Bush administration would have to win that warrantless wiretaps are an inherent part of Article II and that Congress has no authority to restrict that inherent right of the Presidency. So good luck proving that.

There's no middle ground using the derived math equation you cite. You cant quantify presidential power and subtract the powers restricted by Congress and somehow come out with an answer that justifies wiretaps. Not to mention the Constitution does give Congress foreign policy powers as well.

 

C'mon...lol..The court can and will overstate FISA. The thought process has been written, and explained. This is in keeping with Bush's arguments of Constitutional powers inference. The broad scope of Constitutional powers assigned to the President sets the reference when there is confliction...

Right now there is conflict between Congress and the President, wouldn't you say? and when this happens, there is a documented Supreme Court opinion that the President possesses all the power the Constitution grants the President to act in the area in question minus the power the Constitution gives to Congress. This may be difficult for you to understand, but basically where Congress and the President have differences, and it goes further, the Courts' opinion is that the President gets the agreement as long as his argument is based on the broad scope of the Constituion...which it is. No luck is needed, since the wording and justification is clear. Case is shut closed...No matter how you look at it, that is the eventuality.

 

But the constitution is what goes directly against the President. Even Article II of the constitution talks about in a time of war. Congress has not declared war. For a court to declare FISA, as a whole, unconstitutional is absolutely beyond the scope of imagination.

 

Article II of the Constitution
Designates president as commander-in-chief and gives him authority over foreign affairs.
President Bush's argument based on the broad powers of the Constituion states Article II gives the president "all necessary authority" to protect the nation from further attacks.

Bush's argument is that the Constituion is on his side, and when this is made as a sole dirivative of action by the President, then Congressional power is marginalized as it should. We are at a time of if not war, we are clearly at a time of attack. Even Article II states with clarity to "protect the nation from further attacks." Do the neo-demos think we are not in a war against terror? A declaration of war on terror is silly and not quantitative as declarations of war in the traditional sense should be. President Bush realizes the Constitutional inference of keeping the United States safe from attack is clear and based on the sole dirivative of Constituional right.

The opinion as expressed from the Court shows the favor in this instance is with the President. I think we have some highly qualified Supreme Court Justices to make that call...Do you?