Post by Dark Phoenix Rising on Jan 16, 2006 15:56:46 GMT
The Security Threat of Unchecked Presidential Power
Last Thursday [15 December 2005], the "New York Times" exposed the most
significant violation of federal surveillance law in the post-Watergate
era. President Bush secretly authorized the National Security Agency to
engage in domestic spying, wiretapping thousands of Americans and
bypassing the legal procedures regulating this activity.
This isn't about the spying, although that's a major issue in itself.
This is about the Fourth Amendment protections against illegal search.
This is about circumventing a teeny tiny check by the judicial branch,
placed there by the legislative branch, placed there 27 years ago -- on
the last occasion that the executive branch abused its power so broadly.
In defending this secret spying on Americans, Bush said that he relied
on his constitutional powers (Article 2) and the joint resolution
passed by Congress after 9/11 that led to the war in Iraq. This
rationale was spelled out in a memo written by John Yoo, a White House
attorney, less than two weeks after the attacks of 9/11. It's a dense
read and a terrifying piece of legal contortionism, but it basically
says that the president has unlimited powers to fight terrorism. He can
spy on anyone, arrest anyone, and kidnap anyone and ship him to another
country ... merely on the suspicion that he might be a terrorist. And
according to the memo, this power lasts until there is no more
terrorism in the world.
Yoo starts by arguing that the Constitution gives the president total
power during wartime. He also notes that Congress has recently been
quiescent when the president takes some military action on his own,
citing President Clinton's 1998 strike against Sudan and Afghanistan.
Yoo then says: "The terrorist incidents of September 11, 2001, were
surely far graver a threat to the national security of the United
States than the 1998 attacks. ... The President's power to respond
militarily to the later attacks must be correspondingly broader."
This is novel reasoning. It's as if the police would have greater
powers when investigating a murder than a burglary.
More to the point, the congressional resolution of Sept. 14, 2001,
specifically refused the White House's initial attempt to seek
authority to preempt any future acts of terrorism, and narrowly gave
Bush permission to go after those responsible for the attacks on the
Pentagon and World Trade Center.
Yoo's memo ignored this. Written 11 days after Congress refused to
grant the president wide-ranging powers, it admitted that "the Joint
Resolution is somewhat narrower than the President's constitutional
authority," but argued "the President's broad constitutional power to
use military force ... would allow the President to ... [take] whatever
actions he deems appropriate ... to pre-empt or respond to terrorist
threats from new quarters."
Even if Congress specifically says no.
The result is that the president's wartime powers, with its armies,
battles, victories, and congressional declarations, now extend to the
rhetorical "War on Terror": a war with no fronts, no boundaries, no
opposing army, and -- most ominously -- no knowable "victory."
Investigations, arrests, and trials are not tools of war. But according
to the Yoo memo, the president can define war however he chooses, and
remain "at war" for as long as he chooses.
This is indefinite dictatorial power. And I don't use that term
lightly; the very definition of a dictatorship is a system that puts a
ruler above the law. In the weeks after 9/11, while America and the
world were grieving, Bush built a legal rationale for a dictatorship.
Then he immediately started using it to avoid the law.
This is, fundamentally, why this issue crossed political lines in
Congress. 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.
This is not a partisan issue between Democrats and Republicans; it's a
president unilaterally overriding the Fourth Amendment, Congress and
the Supreme Court. Unchecked presidential power has nothing to do with
how much you either love or hate George W. Bush. You have to imagine
this power in the hands of the person you most don't want to see as
president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael
Moore or Ann Coulter.
Laws are what give us security against the actions of the majority and
the powerful. If we discard our constitutional protections against
tyranny in an attempt to protect us from terrorism, we're all less safe
as a result.
This essay was published on December 21 as an op-ed in the "Minneapolis
Star Tribune."
<http://www.startribune.com/562/story/138326.html>
Here's the opening paragraph of the Yoo memo. Remember, think of this
power in the hands of your least favorite politician when you read it:
"You have asked for our opinion as to the scope of the President's
authority to take military action in response to the terrorist attacks
on the United States on September 11, 2001. We conclude that the
President has broad constitutional power to use military force.
Congress has acknowledged this inherent executive power in both the War
Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at
50 U.S.C. ยงยง 1541-1548 (the "WPR"), and in the Joint Resolution passed
by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224
(2001). Further, the President has the constitutional power not only to
retaliate against any person, organization, or State suspected of
involvement in terrorist attacks on the United States, but also against
foreign States suspected of harboring or supporting such organizations.
Finally, the President may deploy military force preemptively against
terrorist organizations or the States that harbor or support them,
whether or not they
can be linked to the specific terrorist incidents of September 11."
There's a similar reasoning in the Braybee memo, which was written in
2002 about torture:
Taken from a security newsletter by Bruce Schneier
Last Thursday [15 December 2005], the "New York Times" exposed the most
significant violation of federal surveillance law in the post-Watergate
era. President Bush secretly authorized the National Security Agency to
engage in domestic spying, wiretapping thousands of Americans and
bypassing the legal procedures regulating this activity.
This isn't about the spying, although that's a major issue in itself.
This is about the Fourth Amendment protections against illegal search.
This is about circumventing a teeny tiny check by the judicial branch,
placed there by the legislative branch, placed there 27 years ago -- on
the last occasion that the executive branch abused its power so broadly.
In defending this secret spying on Americans, Bush said that he relied
on his constitutional powers (Article 2) and the joint resolution
passed by Congress after 9/11 that led to the war in Iraq. This
rationale was spelled out in a memo written by John Yoo, a White House
attorney, less than two weeks after the attacks of 9/11. It's a dense
read and a terrifying piece of legal contortionism, but it basically
says that the president has unlimited powers to fight terrorism. He can
spy on anyone, arrest anyone, and kidnap anyone and ship him to another
country ... merely on the suspicion that he might be a terrorist. And
according to the memo, this power lasts until there is no more
terrorism in the world.
Yoo starts by arguing that the Constitution gives the president total
power during wartime. He also notes that Congress has recently been
quiescent when the president takes some military action on his own,
citing President Clinton's 1998 strike against Sudan and Afghanistan.
Yoo then says: "The terrorist incidents of September 11, 2001, were
surely far graver a threat to the national security of the United
States than the 1998 attacks. ... The President's power to respond
militarily to the later attacks must be correspondingly broader."
This is novel reasoning. It's as if the police would have greater
powers when investigating a murder than a burglary.
More to the point, the congressional resolution of Sept. 14, 2001,
specifically refused the White House's initial attempt to seek
authority to preempt any future acts of terrorism, and narrowly gave
Bush permission to go after those responsible for the attacks on the
Pentagon and World Trade Center.
Yoo's memo ignored this. Written 11 days after Congress refused to
grant the president wide-ranging powers, it admitted that "the Joint
Resolution is somewhat narrower than the President's constitutional
authority," but argued "the President's broad constitutional power to
use military force ... would allow the President to ... [take] whatever
actions he deems appropriate ... to pre-empt or respond to terrorist
threats from new quarters."
Even if Congress specifically says no.
The result is that the president's wartime powers, with its armies,
battles, victories, and congressional declarations, now extend to the
rhetorical "War on Terror": a war with no fronts, no boundaries, no
opposing army, and -- most ominously -- no knowable "victory."
Investigations, arrests, and trials are not tools of war. But according
to the Yoo memo, the president can define war however he chooses, and
remain "at war" for as long as he chooses.
This is indefinite dictatorial power. And I don't use that term
lightly; the very definition of a dictatorship is a system that puts a
ruler above the law. In the weeks after 9/11, while America and the
world were grieving, Bush built a legal rationale for a dictatorship.
Then he immediately started using it to avoid the law.
This is, fundamentally, why this issue crossed political lines in
Congress. 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.
This is not a partisan issue between Democrats and Republicans; it's a
president unilaterally overriding the Fourth Amendment, Congress and
the Supreme Court. Unchecked presidential power has nothing to do with
how much you either love or hate George W. Bush. You have to imagine
this power in the hands of the person you most don't want to see as
president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael
Moore or Ann Coulter.
Laws are what give us security against the actions of the majority and
the powerful. If we discard our constitutional protections against
tyranny in an attempt to protect us from terrorism, we're all less safe
as a result.
This essay was published on December 21 as an op-ed in the "Minneapolis
Star Tribune."
<http://www.startribune.com/562/story/138326.html>
Here's the opening paragraph of the Yoo memo. Remember, think of this
power in the hands of your least favorite politician when you read it:
"You have asked for our opinion as to the scope of the President's
authority to take military action in response to the terrorist attacks
on the United States on September 11, 2001. We conclude that the
President has broad constitutional power to use military force.
Congress has acknowledged this inherent executive power in both the War
Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at
50 U.S.C. ยงยง 1541-1548 (the "WPR"), and in the Joint Resolution passed
by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224
(2001). Further, the President has the constitutional power not only to
retaliate against any person, organization, or State suspected of
involvement in terrorist attacks on the United States, but also against
foreign States suspected of harboring or supporting such organizations.
Finally, the President may deploy military force preemptively against
terrorist organizations or the States that harbor or support them,
whether or not they
can be linked to the specific terrorist incidents of September 11."
There's a similar reasoning in the Braybee memo, which was written in
2002 about torture:
Taken from a security newsletter by Bruce Schneier
.com
