Balkinization  

Friday, May 18, 2007

Shame on Conservatives Who Hide Behind the Indeterminacy of Law

Brian Tamanaha

Although I may disagree with their politics, I admire principled conservatives, and I often read their work to obtain insights. That’s why it is especially disappointing for me to read a key argument put forth by Douglas Kmiec, who I respect, in his op-ed (taken apart by Marty below) dismissal of Comey’s testimony, for it smacks of a misleading duck behind the indeterminacy curtain.

Here is the offending line: “The FISA-presidential power spat invites reasonable minds to disagree, as Comey and Attorney General Alberto Gonzales do.”

Reasonable minds can indeed disagree about the law, and often do on many issues. But that begs the question of whether this is one of those situations.

To get to the heart of what matters here, an important distinction must be made between an arguable position, and a viable or reasonable position.

With sufficient imagination and motivation, a skilled lawyer can come up with an argument on just about every legal issue. When I worked as a public defender, after staring long enough at a hopeless position, I could usually work up some argument for why the evidence should be suppressed or the charges dismissed. But most of these arguments, I knew, were stretches, legally arguable but obviously weak, losers out of the box. Sometimes the arguments I came up with were reasonable, through the outcome was hard to predict. And sometimes the arguments were strong (which still did not insure that the judge would rule in my favor). Recognizing the qualitative difference between these arguments is an aspect of the judgment required to be a lawyer.

Ordinary legal indeterminacy of this sort, a fact of the law, does not mean that every legal position one comes up with, while arguable, is viable or persuasive, or that every disagreement on a legal issue is reasonable. Kmiec, Comey, and Gonzales know this, as does every lawyer (1.1 million and counting).

Ashcroft and Comey have shown every indication that they strongly support the Bush Administration, and were completely on board in doing whatever it takes to fight terrorism—up to the utmost limit of the outer stretches of the law. There is little doubt that, under the circumstances surrounding that now infamous evening, Comey would have accepted any minimally plausible legal interpretation that would have allowed the Bush Administration to continue its desired activities.

The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility.

Given this reality, painting the situation as a legal disagreement between “reasonable minds” is a distortion. Kmiec knows better.

Comments:

Professor Tamanaha writes, "Ashcroft and Comey have shown every indication that they strongly support the Bush Administration, and were completely on board in doing whatever it takes to fight terrorism — up to the utmost limit of the outer stretches of the law."

This comment gives members of the Bush administration the benefit of the doubt in assuming that their motivation is to fight terrorism. In light of the fact that the Bush administration seems relatively unconcerned about fighting terrorism, and itself engages in terrorism, one might instead assume that its motivation is to usurp power. I do not, however, claim to know its motivation.
 

Thank you for not claiming to know its motivation, since it could be that Gonzales’s legal justification is NOT extraordinarily weak, beyond the pale of plausibility.
 

And if it takes the best legal minds at DOJ and the Whitehouse MONTHS to come up with "innovative" legal logic that justifies the current NSA program (as they have claimed), how thin and tortuous is that logic? And why does that logic have to be hidden from citizens? The terrorists know we are looking for and at them (supposedly, that's why the NYT have been branded as traitors), so the methods may have some reason to remain secret, but the logic in approving such methods should be readily available.

Or is there something to hide?
 

With all due respect, Professor Tamanaha, your argument seems to be this: "Lawyers, in the process of zealously defending their clients, will often stretch the truth as far as they can (within the limits set by their profession). While lawyers do this every day, and while they know that some arguments are bogus, they should be able -- when they're not operating in their professional capacity -- to recognize a bogus argument. Gonzales' argument is clearly bogus, and Kmiec should recognize this. He shouldn't try to pull the wool over Americans' eyes about the legitimacy of Gonzales' argument."

But why can't we say that Kmiec is just acting toward the American public the way that lawyers act in court? The media is the courtroom for the American public.

If unbounded, both lawyers and politicians would lie as much as they could. The only reason they don't is the structure of the institution in which they operate. Lawyers don't lie as much as they'd like because their profession defines rules for them. Politicians probably lie more than lawyers because there are more checks on their doing so. If we want politicians to lie less, or we want people to mislead us less in the media, we'll change our institutions appropriately.

In essence, you're attacking a non-lawyer for zealously defending his client. That's humorous, to say the least.
 

stevelaniel writes: But why can't we say that Kmiec is just acting toward the American public the way that lawyers act in court?

We can't say that because Douglas Kmiec identifies himself in the Op Ed as a professor of constitutional law and former Reagan Administration official. He does not identify himself as an attorney advocating on behalf of the Bush Administration. Kmiec is purporting to offer his own views on the topic, not zealously advocating for a client like a lawyer does in court.
 

Professor Kmiec is an attorney, and just to be clear about something else, IF the Supreme Court eventually agrees with Gonzales’s legal justification, can we all agree then that it was not "extraordinarily weak, beyond the pale of plausibility"?
 

Charles,

Let the citizens see the logic, and let them decide.
 

IF the Supreme Court eventually agrees with Gonzales’s legal justification, can we all agree then that it was not "extraordinarily weak, beyond the pale of plausibility"?


This smacks of another hypothetical which will never come to pass. What's the point in even discussing it?
 

Professor Tamanaha:

I agree with you that this question is not really close.

In sum, the law is clear that Article II provides the President with the power to direct intelligence gathering against foreign enemies, Article I does not provide Congress with a concurrent power to do so, Youngstown only applies to cases where Congress has a concurrent power, and the 4th Amendment does not require warrants for electronic surveillance of agents of foreign groups for the purposes of intelligence gathering.

In response to this established law, proponents of FISA can only provide congressional power arguments which stretch the Necessary and Proper Clause, the military regulation clause and even the Commerce Clause beyond all recognition and precedent.

The legal justification of FISA proponents, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility."

Kmiec is being generous.
 

QuiteAlarmed: I don't think you're quite seeing what I mean. My point is that lawyers offer non-bogus arguments because that's what the institution forces them to do. They don't steer clear of bogus arguments out of the goodness of their hearts. If we want to change the way arguments happen in the public sphere, we should change the institution that allows bogus arguments to propagate there in the first place. Cf., for instance, arguments within scientific journals versus those in newspapers.
 

But why can't we say that Kmiec is just acting toward the American public the way that lawyers act in court?

QuiteAlarmed disposes of this quite nicely. I'll just add that there are hundreds of publicly-visible lawyers ('legal experts') who have assumed the same dishonest role as Kmiec: de facto advocates for the Bush administration who pose as independent analysts of the law. What this means is that whatever the administration does, no matter how blatantly criminal its acts, no matter how ludicrous its legal interpretations, its 'public defenders' (from Victoria Toensing to Glenn Reynolds) will pop up and argue for it. They count on the probability that most people won't be able to judge the distinction between the reasonable and the merely arguable.
 

Fraud Guy:

Unfortunately for us citizens, some things are better left "classified" than revealed to the enemy during wartime ; )

Tom Hilton:

IF the Supreme Court eventually agrees with Gonzales’s legal justification, will you agree it was reasonable?
 

IF the Supreme Court eventually agrees with Gonzales’s legal justification, will you agree it was reasonable?

What a silly hypothetical. Why would you even ask something so ridiculous?

But I will give you a partial answer: if the Supreme Court decides 5-4 in favor of Gonzales, with Scalia/Alito/Thomas/Roberts/Kennedy on one side and Stevens/Ginsburg/Breyer/Souter on the other, the decision will be additional vindication of my contempt for Gonzales' reasoning.
 

I didn't think it was either "silly" or "ridiculous" but I'll accept your post as a very revealing answer nonetheless. Do you think every 5-4 Supreme Court decision is unreasonable?
 

Tom Hilton: no matter how ludicrous its legal interpretations, its 'public defenders' (from Victoria Toensing to Glenn Reynolds)

You forgot John Yoo (now that he's out of OLC and doing interviews for PBS) Bart DePalma and Charles Profile-not-available, attorneys all, all of whom credit as plausible the "war" theory for fighting terror, which is roughly as apt as putting a plaster cast on someone's leg to treat their smallpox. As I've said before and will no doubt say many times more, address this premise and the rest is moot. Fail to address this premise and expect to run in the same circle ad infinitum, one stomach turning scandal after another, be it Iraq, Iran, abuse of "National Security Letters" under H.R. 3162 (the so-called "patriot" act), the end of habeas under the MCA, the Attorney scandal, warrantless domestic spying...you get the point.
 

What a silly hypothetical. Why would you even ask something so ridiculous?

But I will give you a partial answer:


I think you're far better off ignoring or mocking his asinine hypotheticals than actually responding to them.
 

Charles: Do you think every 5-4 Supreme Court decision is unreasonable?

I see you got your copy of "Trolling for Dummies" too, that's great. It blew my mind when I read about red herring questions and their power to side-step when about to be backed into a corner...as you are now:

Do you, Charles, disagree with the premise that there is a difference between an "arguable" position and a "reasonable" or "viable" position? Do you disagree with Professor Tamanaha's statement that the question has been begged, the question being whether or not what Kmiec, in true apologist form, tries to minimize as a "spat" is something about which reasonable minds can disagree, rather than dealing with a fundamentally flawed, non-viable, unreasonable argument? Do you claim Kmiec dealt with the question Tamanaha says is begged? Can you answer substantive questions? Or only pose non-starter hypos?
 

Charles,

I am not getting into the war argument. I am just asking the administration to present its legal basis for these programs. How can you argue that a legal theory would reveal the detail necessary to compromise any investigation? Especially since:

We know they can tap the internet, and have programs located offshore to do so.

We know that they can infect cel phones to use as remote mikes for eavesdropping.

We know that they have splitters on the main long distance communications lines to tap calls and route traffic for analysis.

We know that they have access to all international financial transaction information through SWIFT.

We know that they have personal data on inbound US travellers for perusal at leisure.

We know that they have captured and tortured for information a large (but unknown) number of individuals.

Why are these legal (when many are not legal on the face of them)? Because they said so. Why? They can't tell us. Why? Because. Why? (with apologies to Pink Floyd)

Hush now baby, baby don't you cry,
Bushie's going to make all of your nightmares come true,
Bushie's going to put all of his fears into you,
Bushie's going to keep you right here under his wing.
He won't let you fly but he might let you sing.
Bushie's gonna keep you cozy and warm.

...

Bushie's gonna check out of your phone calls for you,
Bushie's won't let anything Muslim get through,
Bushie's gonna break in while your not in,
Bushie will always find out where you've been,
Bushie's gonna keep baby under his heel....

 

Robert:

Yes, yes, yes, yes, and no.

See how easy it is to answer questions?
 

Fraud Guy:

Mainly because no one has standing and ANY details (heck, just making the legal argument in open court) confirms the existence of said program(s).
 

charles writes: Professor Kmiec is an attorney, and just to be clear about something else, IF the Supreme Court eventually agrees with Gonzales’s legal justification, can we all agree then that it was not "extraordinarily weak, beyond the pale of plausibility"?

I think you know that it will depend on the reasoning of the opinion. A ruling favorable to the White House based on justiciability or national security privilege will tell us nothing about the plausibility of the Article II argument.

If the Supreme Court adopts the White House's justification, though, then obviously that will make the argument plausible. I take solice in my firm belief that this hypothetical is most unlikely; it would effectively replace the President in our Constitutional system with a Roman consul.
 

Bart: ...4th Amendment does not require warrants for electronic surveillance of agents of foreign groups for the purposes of intelligence gathering.

Bart, do you ever get tired of being an ass? Or parroting what you heard Newt say on Bill's last show? Last I heard the text of the 4th Amendment doesn't say lots of things. But what 4th Amendment Law has concretely developed is that citizens are to be free from unreasonable intrusion by the government. Funny thing is, I thought you self-described libertarians were the ones all up in arms about an overbearing federal government and protecting individual rights? You sure do sound more like one of the crowd clapping for torture in South Carolina than anything else I would care to name.

Foreign groups? Intelligence gathering? Don't you wish that were the issue. The issue is how much spying on innocent citizens without so much a reasonable suspicion is going to be allowed. You would-be libertarian, why is it you favor a standard suitable for a drunk-stop in a matter of secret spying on citizens? Is it because you are a lying, cowardly cheat? Or are you just still that busy pleading with Newt to find you the text of the MCA I've been asking for all these months?
 

Charles: Yes, yes, yes, yes, and no.

You're further along in "Trolling for Dummies" than I gave you credit for; good example of trying to get off a hot spot as quickly as possible, making your opponent do the work to really hold you accountable. Here goes. The sum of my questions and your answers are:

You believe there is no difference between an "arguable" position and a "viable" or "reasonable" position.

You believe Kmiec has not begged the question of whether what Kmiec tries to downplay as a "spat" (ahem) could be characterized as other than something about which reasonable minds could disagree.

You claim Kmiec has dealt with the question above.

You can answer substantive questions.

You can do more than pose hypothetical non-starters.

Robert: Do you, Charles, disagree with the premise that there is a difference between an "arguable" position and a "reasonable" or "viable" position? Do you disagree with Professor Tamanaha's statement that the question has been begged, the question being whether or not what Kmiec, in true apologist form, tries to minimize as a "spat" is something about which reasonable minds can disagree, rather than dealing with a fundamentally flawed, non-viable, unreasonable argument? Do you claim Kmiec dealt with the question Tamanaha says is begged? Can you answer substantive questions? Or only pose non-starter hypos?
 

stevelaniel writes: I don't think you're quite seeing what I mean. My point is that lawyers offer non-bogus arguments because that's what the institution forces them to do.

When attorneys appear in court, especially criminal attorneys, everyone knows that they are fulfilling their ethical obligation to make the best argument they can on behalf of their clients, regardless of their own personal beliefs.

On the other hand, law professors writing Op Eds purport to offer the opinion that they personally believe to be true.

For me, this is the crucial distinction. If your point draws a cogent parallel to overcome this distinction, then you are correct that I don't quite see it.
 

You didn't answer my question, though, Robert.
 

Charles,

We are already aware of the existence of at least one program, based on testimony by Gonzales and other administration statements.

So that means that they have revealed state secrets. Oops.

My song still stands, and the condescencion of this administration and its apologists is so obtuse that their ostrich heads not only are not under the ground, but they are eyes open staring at us. Toto has pulled back the curtain, and you're screaming like Oz.

It's time for some open and honest discussion in the body politic.
 

@Charles: Please do provide a selection of text in which Kmiec presents an argument supporting a claim that the subject matter of what he so quaintly downplays as a "spat" could not possibly be other than a matter about which reasonable minds can disagree. My quick read of Professor Tamanah's post leaves me thinking you have the burden of proof to contradict the Professor's conclusion that this question was begged, and until such a time as you substantiate your claim I'm sure you will understand if I consider you unable to do so.
 

@Charles: Do you really contend there is no difference between the domain of "arguable" positions and "viable" or "reasonable" positions? If so, could you please explain? Every defense attorney has to make arguable positions, even in those cases where she knows her client is guilty and that the State has a compelling case. If you really believe as you say, then again, it seems the burden of explication is on you, for you make a claim that flies in the face of the experience of many here.
 

Charles: You didn't answer my question, though, Robert.

Yes, this asynchronous medium can allow for misunderstandings of that sort, can't it? I applaud your choice to answer even the snarky rhetorical questions I asked, although it seems to support an argument that you have a deficient capacity to sort the rhetorical from the substantive, don't you think? Shall we watch how you do with that hint and these sentences to practice on?

In answer to your question, then, yes.
 

Fraud Guy:

I'm all for open and honest, up to the point where American lives are placed in jeopardy.

Robert:

Well, if Gonzeles is disqualified, I take it Kmiec's legal mind qualify as a reasonable?
 

P.S. Yes, no (I am simply trying to be complete), and by all means, be my guest.
 

Charles,

So lying about the reasons for the war, endangering American lives by stopping the hunt for Al-Qaeda and giving them a foothold in a country where they never had one should be bad in your book?

And, since this is supposed to be a war for American freedoms, taking actions which subvert our freedoms but save lives (puportedly, without substantiation) is good?
 

Charles, I will answer your question about the impact of a Supreme Court decision upholding the prior program, and whether that would mean that the Administration's position was reasonable: No, not necessarily. As a lawyer, I am sure you can find examples of unreasonable Supreme Court decisions. Plessy vs. Ferguson, for example. I cite this not just because of the PC nature of decrying segregation today, but because that decision was patently contrary to the intent of the 14th Amendment, and virtually every legal scholar today agrees it was unreasonable. There are many less controversial decisions that I have read and thought were quite plainly wrong, and I am sure you have had the same experience.

So, whether a decision is reasonable to me, at least, depends upon the the decision's factual and legal support. I would want to review the Supreme Court and other lower court decisions, the statutes, and legislative history (sorry Scalia, but I find it useful sometimes) and come to my own conclusion, which I would hope you would do too.
 

Charles: (I am simply trying to be complete)

Ostensibly that's in reply to my post of 2:22. Which earns you honorable mention in the cowardly cheat category, although I've yet to catch you in an ourtight lie...yet. And that's after charitably allowing the above itself isn't a lie; after all, if you were being complete you would have explained how certain domains of position are the same and provided text from Kmiec showing where he furthered an argument rather than proffering an unearned conclusion. Hell, I'm feeling charitable.
 

The legal justification of FISA proponents, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." - Bart

So legislation, passed by Congress, creating a legal mechanism through which our government could spy, legally, suffers from a legal justification that is "extraordinarily weak" and "beyond the pale of plausability?

In fact, FISA was prompted by Excutive Branch abuses of power.

According to Bart, no longer is Bush the Chief Executive, bound by laws passed by congress, he is the Commander and Chief and bound by no law when it comes to protecting Amurikkka.
 

Charles: Well, if Gonzeles is disqualified, I take it Kmiec's legal mind qualify as a reasonable?

Sonny, is it that you never actually took a logic class? Or think none of us have? Or is false bifurcation the only trick you know well enough to use without the book at your elbow? Stop squirming and either pony up with how the domains of position are the same and with text showing where Kmiec argues rather than presupposes, or stand down.
 

Bart, Charles,

Question: Under your view of the consitution President Bush cannot be constrained by the law pursuant to his duty to protect America.

Is this correct?
 

Charles : 12:22 PM: IF the Supreme Court eventually agrees with Gonzales’s legal justification, will you agree it was reasonable?

First, DOJ lawyers would actually have to make those arguments in court. But they are quite afraid to argue the merits. In fact, the entire strategy of the adminstration for the past 18 months has been to avoid judicial review of those arguments.
 

Fraud Guy / garth:

I do think that lying about the reasons for the war and/or endangering American lives is impeachable -- now you just have to prove it in Congress -- also, I thought the war was for IRAQI freedom? American freedom is not at stake here. Does that answer your question(s)?

Robert:

I apologize. I was running out and should have typed "if Gonzeles is disqualified, I take it Kmiec's legal mind DOESN'T qualify as a reasonable either?" as my request for clarification. If you refuse to answer my request for clarification, then my answer to your question will only be along the lines of what QuiteAlarmed already posted: "law professors writing Op Eds purport to offer the opinion that they personally believe to be true."

Lastly, I think I did take logic in high school, but I can't remember specifically. As such, I know I can't answer whether all of you did. Just as I don't know if you all graduated from law school either. "False bifurcations" are neither what I am doing, nor the only trick I know well enough to use without the book at my elbow. That being said, you won't catch me lying, I can assure you, since I am not lying.

jao:

There are other possibile explanations besides "DoJ lawyers are quite afraid to argue the merits." For instance, arguing the merits will CONFIRM the existence of classified program(s).
 

Charles: There are other possibile explanations besides "DoJ lawyers are quite afraid to argue the merits." For instance, arguing the merits will CONFIRM the existence of classified program(s).

The existence of the warrantless surveillance program has already been confirmed. Bush and Gonzales announced it, bragged about it, described it at press conferences and photo ops, and even gave it a name -- the "Terrorist Surveillance Program." (They stopped short of creating a logo and a public web site.)

In fact, based entirely on those public descriptions on summary judgment, a federal court has held the program to be unlawful and unconstitutional.

Even in appealing that decision, the administration refuses to brief the merits of the "legal justification" Bush's minions proclaim outside of court. Instead, DOJ hides behind technical questions of standing and privilege.

Mister President, tell it to the judge.
 

Charles:

Nonsense. By your logic, arguing standing, state secrets, etc. they are admitting the existence of a given program. Moreover, the admin has already admitted that some of the programs exist. All it takes is for them to get courts to sign off on the Art. II argument on ONE of these KNOWN programs, and the admin would have its justification for any other programs that haven't been discovered.

The fact is JaO is right. If they were so confident in the argument, the admin would've argued at their first opportunity, because a victory on that issue alleviates ALL of their problems.
 

robert:

Is it correct that you claim to be a law student? In that case, you better start hitting the books on how to do basic research on legal questions. While you may not mind making a fool of yourself in the anonymity of a legal blog, it will not take long before your reputation is shot if you pull this nonsense in front of judges and attorneys.

Here is your class on the 4th Amendment for today. Pay attention.

Federal courts have unanimously held that the Constitution grants the President, as commander in chief and sole representative of the United States in foreign affairs, the implied power of directing and conducting intelligence gathering against foreign groups and their agents in the United States. The 4th Amendment does not require the President to obtain warrants for such intelligence gathering. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).

There is no evidence that the TSP is targeting "innocent citizens" as you claim. Rather, all of the reporting states that the TSP is surveilling telephone numbers captured from al Qaeda. Therefore, the aforementioned case law applies.

Class dismissed.
 

Charles: ...you won't catch me lying, I can assure you, since I am not lying.

I've already charitably stipulated that your "just to be complete" wasn't itself a lie, but could revisit that if you like. I'll even credit you that your rationalizations preclude you recognizing the cheating cowardice of your having answered the rhetorical questions while still working so hard to squirm out of admitting a) that Kmiec doesn't argue the position that the "spat" (ahem) could not be characterized as other than something about which reasonable minds can disagree, b) that the domain of "reasonable" or "valid" positions is not identical to the domain of "arguable" positions.

And if you really just want to play the dozens as a way to avoid answering the substantive issues in a) and b) above, then, yes, I'm a 2l in a 4 year correspondence law program. It's strictly "byor" at my school, "Bring Your Own Rigor". Thank God for folks like our hosts who help quite a bit on that score. But, well, that really doesn't affect the soundness of those arguments you can't seem to make, now does it?

The typo/omission you refer to really isn't germane, and no one here could in good faith bust your chops over it, certainly not when you leave so many more tempting openings.

Charles: If you refuse to answer my request for clarification, then my answer to your question will only be...

Back to the book, eh. Yes, that maneuver where you claim to answer a question which was in fact never asked is good, if you've got the nerve to stonewall like Bart does. But, well, I don't know what the heck question I might have asked to which your purported answer would be responsive. I will repeat, however, since it seems the only way you are likely to address the substantive issues, a) with what selection of Kmiec's text can you support your claim that he argues a position rather than begging it, b) how do you explain your view that the domain of "viable" or "rational" positions is the same as that of "arguable" positions? Two clear questions, repeated a few times now. It's as if you've learned nothing from Bart's ignomy. Or don't mind standing next to him in the hall of shame.
 

Charles, to answer your reply to JaO, there have been enough leaks of information to show that the programs exist. Therefore it IS time to argue the merits.

As to the war on American freedoms, that is still in administration talking points, so their claim is that our freedoms (reduced as they are) are worth the lives of well over 3000 American servicemen and women. So the lies have cost American lives.
 

Bart: There is no evidence that the TSP is targeting "innocent citizens" as you claim.

Well, aside from, say the NSA room at AT&T. I guess that's not much evidence at all, really.

Nice try, however. I'm particularly amused at your pretension of "schooling" me when in reality you completely failed to reach my central claim about 4th Amendment Law standing for the principle of precluding unreasonable governmental intrusion into the private affairs of innocent citizens. Is that the general status of 4th Amendment Law? Of course it is. Then, still claiming to "educate" you try to get away with, as usual, flatly positing that which is to be proved, to wit, that there has been no warrantless spying on innocent citizens. You even make the incredibly jug-headed claim, fatuous even for someone like you, that there is no evidence of such spying.

Still cheating (begging questions left and right) but at least this shows a slightly reduced level of pusillanimity for the moment. Congrats. Of course I'm still waiting on that MCA thing...
 

Charles, you did not answer the question. yes or no.

Bart, I am still waiting.
 

Garth said...
Bart, Charles,

Question: Under your view of the consitution President Bush cannot be constrained by the law pursuant to his duty to protect America.

Is this correct?

3:19 PM
 

Jao and Mike (and now Fraud Guy joining in):

Whether SOME details of the classified program(s) have been revealed or not is irrelevant to the decision of whether ALL applicable details should be. As I said, there are other possible explanations too -- here's another one (and note that I could keep speculating all day long -- in the end, none of us know, so I have to trust the President of the United States is making the right decision -- if you cannot trust him, then I suggest you try to impeach him): classified information exists that the judge has been compromised by al Qaeda.

Robert:

If you will concede that Kmiec has a REASONABLE LEGAL MIND, then the very fact he wrote the Op Ed (assuming QuiteAlarmed is correct) is proof that reasonable minds differ. I thought that is what you were asking?! Does THAT help explain why I asked for clarification? As for the "dozens" I have no idea what you are referring to, but I've learned my lesson and will NOT ask for clarification again.

Garth:

No, the President is always subject to impeachment and (at the very least) is contrained by the law in that regard.
 

Bart: There is no evidence that the TSP is targeting "innocent citizens" as you claim. Rather, all of the reporting states that the TSP is surveilling telephone numbers captured from al Qaeda.

I should stop, but it's like fish in a barrel. So, Bart, are you saying if an al Qaeda capture happened to have been to your office to get out of that DUI she picked up then the government would have the right to spy on you?

Your answer, of course, will be a knee jerk, "Yes." But you will thereby assent to the government spying on an innocent citizen. Or are you guilty simply because an al Qaeda operative, without disclosing herself as such to you, sought your brilliant legal mind to get her off for killing a kid when she rolled a stop sign while driving drunk?

See, Bart, there are problems with this wide-net of guilt by association. Kind of like there are problems with any program that allows convictions by coerced testimony, that fails to allow the accused to face their accuser, &c.

Still waiting for some relevant text from the MCA...
 

constrained
 

So the President cannot be constrained by the law?

He can only be impeached?

That's your final answer.

The president is need not obey laws passed by Congress and if they don't like it they can impeach him.

That sounds like an interesting theory for a nation supposedly devoted to the rule of law.

I suppose that notion is quaint too.
 

I'm waiting Bart.

Do you believe the President has no obligation to follow the laws passed by congress and our only recourse is to impeachment if he we don't like his actions?

Your BFF, Charles, thinks so.
 

Garth -- here's my final answer:

"Question: Under your view of the consitution [sic] President Bush cannot be constrained by the law pursuant to his duty to protect America. Is this correct?"

No.
 

Only because he can be impeached or is he required to faithfully execute the laws of congress?
 

that's what this answer seems to suggest.

Garth:

No, the President is always subject to impeachment and (at the very least) is contrained by the law in that regard.
 

Go ask Doug Kmiec. Here's the one paid to teach law.
 

to anticipate your answer,

"But not FISA"
 

Charles: If you will concede that Kmiec has a REASONABLE LEGAL MIND, then the very fact he wrote the Op Ed (assuming QuiteAlarmed is correct) is proof that reasonable minds differ. I thought that is what you were asking?! Does THAT help explain why I asked for clarification? As for the "dozens" I have no idea what you are referring to, but I've learned my lesson and will NOT ask for clarification again.

Let me extend an offer, and you can look to the dude posting as "Someone," previously posting as "Humble Law Student", for verification: send me a private email. HLS/Someone took me up on it, and while we still disagree, strongly, and even try to spank each other when the other leaves an opening, there is a measure of respect accorded each to the other. Bart, by contrast, has never showed the moxie to risk it. You can get me at beau ( a t ) oblios-cap ( d o t ) com.

Failing that I can only see this last salvo from you as, at best, non-responsive. I'd sincerely love to be proven wrong. I'm a big believer in dialectic, and you're a tough customer, from whom we could learn a lot if the goal is actually clear cogent thought. As a token of good faith I will refrain from further pot-shots at you here for 24 hours (it's 13:17 Friday, my time).

Peace.
 

at least your logically consistent if we consider your non-response indicative of inability to square your answer with conventional constitutional theory that holds the President has indeed sworn an oath of office to faithfully execute the laws.

good bye rule of law, we hardly knew ye.
 

I have to trust the President of the United States is making the right decision

Makes me nostalgic for the days when "trust but verify" was the mantra.
 

Charles: If you will concede that Kmiec has a REASONABLE LEGAL MIND, then the very fact he wrote the Op Ed (assuming QuiteAlarmed is correct) is proof that reasonable minds differ. I thought that is what you were asking?!

Endeavoring to be responsive, and respectful and even kindly, the issue isn't whether or not reasonable minds can disagree on the subject matter of the conflict between the White House and the AG/OLC, over which many were willing to resign, and which Kmiec has tried to trivialize by labeling a "spat". The question was whether Kmeic soundly argues that such a disagreement between reasonable minds is in fact the only apt description of the confict, or if instead of arguing thusly Kmiec has only posited without sound argumentation his preferred spin on "the spat".

I hope this helps.
 

Charles: Whether SOME details of the classified program(s) have been revealed or not is irrelevant to the decision of whether ALL applicable details should be.

As I noted above (and as you ignore) a federal court already has found that sufficient facts about the program in question already have been revealed to justify a summary judgment against the administration.

Gonzales' "legal justification" you defend was based on a two-pronged legal theory, outlined in public forums. Bush's DOJ even issued a 42-page press release (called a "white paper") arguing that legal theory. But it will not stand and defend that theory forthrightly in a court.

I would like nothing better than a test of that theory in court. But DOJ lawyers don't show up to play on the merits.

Remember, you were the one above who suggested that the administration's "legal justification" would be vindicated in the Supreme Court. That is the last place that Gonzales and company want to take it.

Mister President, tell it to the judge.
 

Charles:

More hogwash. Please explain why it would be necessary to reveal every detail of a program when a general description would be sufficient, to wit:

Your honor we are surveilling people in this country, some of which are citizens, in an effort to obtain actionable intelligence in the ongoing war against terrorism. We do not have a warrant nor do we need one because the President's Art. II authority offers him plenary power to direct intelligence gathering during a time of a war. This has been upheld by....

So again, it's utter nonsense that they would have to give away the farm in order to present their legal theory...
 

Garth said...

Bart, Charles: Question: Under your view of the consitution President Bush cannot be constrained by the law pursuant to his duty to protect America. Is this correct?

The Constitution does not grant the President the power to do anything he or she wants to protect America.

No President including Mr. Bush has claimed that it does.

This is simply a Dem talking point.
 

I never suggested that the Administration's "legal justification" would be vindicated in any court -- we tried that once before, let classified information slip, and the bin Laden stopped using the phone we were tracing him with -- if I were President and wanted to keep something classified, I'd resign or let you impeach me before I revealed it.
 

Robert: The following paragraph from the Op Ed suggests to me that Douglas Kmiec affirmatively agrees with the White House's position that Article II trumps FISA.

Comey's testimonial flourish is actually yet another rehashing of whether the president's responsibility as commander in chief (under Article II) and the broad grant of all "necessary and appropriate" power given in military authorization by Congress trumps the ill-fitting FISA statute, which was drafted in peacetime and whose leisurely espionage structure arguably contemplates exceptions to its warrant regime premised on "other statutes."

Although Kmiec does not expressly state his agreement with the White House, to my mind, he clearly suggests his answer to the question by modifying FISA with the adjective "ill-fitting" and adding the clause about how FISA was drafted in peace time, has a leisurely structure and contemplates exceptions. That is hardly a detached summary of the respective positions.

I would go further than Professor Tamanaha. I don't think that Kwiec merely obscures the distinction between arguable and reasonable. I would say that Kwiec suggests that a position, which I consider barely arguable, is not only reasonable, but correct.
 

Garth said...

Only because he can be impeached or is he required to faithfully execute the laws of congress?

The President is only obligated to faithfully execute constitutional laws of Congress and indeed has the duty to ignore unconstitutional laws of Congress.

To the extent that FISA attempts to direct intelligence gathering against agents of foreign groups, it is unconstitutional.
 

charles writes: ...if I were President and wanted to keep something classified, I'd resign or let you impeach me before I revealed it.

...unless it involved the wife of one of my critics.
 

That's just it Bart. Bush does claim that. That's the whole IDEA behind the UNITARY EXECUTIVE, aka King.
 

QuiteAlarmed: I would go further than Professor Tamanaha. I don't think that Kwiec (sic) merely obscures the distinction between arguable and reasonable. I would say that Kwiec (sic) suggests that a position, which I consider barely arguable, is not only reasonable, but correct.

Yeah, I'm with you, and can't help thinking of the guy as a party hack at this point. But that doesn't preclude Charles having salient answers to the questions I've posed, and as a matter of good faith I need to ease up a bit here. Probably wouldn't have posted but someone needs to tell you your "m" key is upside down. :)
 

Bush claimed that the law requiring warrants from a secret spy court was too restrictive and he violated the letter of the law. He admits it.

You argue that the law was unconstitutional because it is too restrictive of his powers as commander in chief.

So, there is some kind of law out there that Bush has to obey if he doesn't want to? FISA's just not one of them.

I guess we can trust Bush to know an unconstitutional law when he sees one.
 

QuiteAlarmed:

Assuming that was even classified, it's possible that the President or Vice-President wanted that revealed.
 

and then not tell us about it.

geesh.
 

Bart:

Please set forth the Constitutional constraints during a time of war, since Congress, apparently, cannot constrain him. Specifically in the context of say, troop deployment or intelligence gathering.

Please show me in the Constitution where the President has the power to ignore duly enacted laws that he interprets as unconstitutional.
 

robert writes: Probably wouldn't have posted but someone needs to tell you your "m" key is upside down. :)

Or perhaps my subconscious had linked him to "W".
 

Garth said...

That's just it Bart. Bush does claim that.

Then you will have no trouble providing a quote.

That's the whole IDEA behind the UNITARY EXECUTIVE, aka King.

You apparently have no idea what the unitary executive theory contends, do you?

Article II makes the President sole executive. Thus, the unitary executive theory holds that the Congress may not exercise executive powers such as creating independent counsels nor may one part of the executive sue another part of the executive.

This theory does not claim that the President can do anything he or she wishes. Just that the President is in charge of the executive.

One could use this theory to generally argue that Congress may not exercise executive powers like directing the gathering of foreign intelligence. However, the stronger argument in my opinion is that Article I does not give Congress such a power.
 

Mike ("speaking" to Bart): Please show me in the Constitution...

Heh. Take a number, pal, I'm still waiting on a little bit of text from the MCA...
 

garth writes: That's just it Bart. Bush does claim that. That's the whole IDEA behind the UNITARY EXECUTIVE, aka King.

More a Roman Dictator than a King, no? Unfettered authority, limited only by the term of office. Do the people who take this position really trust that every President will be a Cincinatus?
 

As a reader (and infrequent commenter) I suppose I should be glad to see the blossoming of GOP posts here—it means the contributors are on the right track, or at least that the GOP or its operatives are worried about the coverage. Either way, it’s a welcome development.

That said, I write to echo what I took as the point of this post, though I will put it a bit differently. Lawyers—in court—are expected to make arguments that are implausible to the point of straining credulity. One reason is that if you don’t make an argument—any argument (meaning, roughly, any argument that doesn’t require to you knowingly lie)—your opponent may argue that you have conceded the point. (Lawyers abhor a vacuum but take refuge in indeterminacy.) But this is a tactic for the courtroom, not the court of public opinion.

In this case, attempting to defend the Administration’s conduct (as Comey detailed it) requires an effort similar to defending the notion that the Sun revolves around the Earth. It’s possible to make an argument, in that one can utter the words “the Sun revolves around the Earth.” But uttering (or here, posting) those words doesn’t make it a plausible argument.

For anyone who has scrolled down this far (hello? anyone?) and who thinks the GOP points voiced here sound sensible, I urge you to re-read the main posts. Then consider whether any of the GOP talking points actually address any of the issues raised or whether they avoid the issue(s). I think the answer will be rather apparent.
 

Bart:

Please provide some support for this assertion, beyond citations to Article II:

"To the extent that FISA attempts to direct intelligence gathering against agents of foreign groups, it is unconstitutional."

I looked at this issue somewhat when the TSP was first publicized, and did not find anything to support this proposition, except possibly (this is from memory) some dicta in the In re Sealed Cases decision by the FIS Court.

Congress is expressly granted the power to declare and to make the rules and regulation regarding land and naval forces, and to pass laws necessary and proper to carry out its enumerated powers. If it is a military function, spying on the enemy would seem to fall within Congress' power to regulate the military (by which Congress enacted, e.g., the Uniform Code of Military Justice). So it is hard to see how FISA is unconstitutional because it supposed infringes on an implied power of the President, as Commander in Chief of the military, when FISA is carrying out an express power granted to Congress.
 

And under the Unitary Executive no one can tell the President how to execute the laws whether he obeys the letter of the law or not.

That's what impeachments for right professor?

Teach me more...
 

Mike said...

Bart: Please set forth the Constitutional constraints during a time of war, since Congress, apparently, cannot constrain him. Specifically in the context of say, troop deployment or intelligence gathering.

War does not trigger or nullify any part of the Constitution. Rather, the President takes an inordinate role in wartime affairs because Article II grants him the vast majority of the powers in this area. Even so, the President is limited by the enumerated powers of Article I when Congress decides to exercise them. For example, Article I grants Congress the enumerated power to set rules for Captures, which empowered them to pass the DTA and the MCA.

Please show me in the Constitution where the President has the power to ignore duly enacted laws that he interprets as unconstitutional.

Here is a nice brief written during the Clinton Administration discussing the pertinent case law. Please do not confuse the recommendations of Mr. Mikva that the President should self limit himself in this area with the actual case holdings which require no such thing.
 

sparky:

I will grant you that if neither Douglas Kmiec nor Alberto Gonzales are considered to have "reasonable minds" (or me, anyone else up to and including Chief Justice Roberts and four other Justices, should they ever rule on the issue), then there can be a priori no other logical conclusion except Tamanaha's that painting the situation as a legal disagreement between “reasonable minds” is a distortion. That's rather apparent (and equally as intended) as well.
 

Christopher said...

Bart, Please provide some support for this assertion, beyond citations to Article II: "To the extent that FISA attempts to direct intelligence gathering against agents of foreign groups, it is unconstitutional."

The Courts view the President's Article II powers over foreign affairs and the military as a general authority over the entire subject matter area. However, when Article I provides a specific power over an area of foreign policy or the military, the Congress may enact a statute pursuant to that specific power which takes precedent over the President's general power.

Therefore, the question becomes whether Article I provides Congress with a specific power to direct foreign intelligence gathering.

Congress is expressly granted the power to declare and to make the rules and regulation regarding land and naval forces...

These are rules for the good order and discipline of members of the uniformed military such as the UCMJ. Neither this clause nor the case law interpreting says that this provision grants Congress the power to direct military operations, such as deciding who may or may not be the subject of foreign intelligence gathering.

...and to pass laws necessary and proper to carry out its enumerated powers.

The N&P Clause does not provide an independent source of power. Rather, it is an enabling provision granting Congress the authority to enact laws to allow all three branches to exercise their enumerated powers. For example, there would be no NSA for the President to use to exercise his power to direct intelligence gathering unless Congress created it. However, Article I does not grant Congress concurrent authority to direct foreign intelligence gathering, thus the N&P Clause is of no use here.
 

Bart,

Can you cite the text in Article I or II that allows the president to ignore laws that he feels are unconstitutional?

He can veto, otherwise it is law (unless declared unconstitutional

From Section I:

"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law."

From Section II:

"he shall take care that the laws be faithfully executed"

Faithful:(from m-w.com)

"firm in adherence to promises or in observance of duty"

Where does any of that say he can ignore unconstitutional laws, except to veto them (with the chance of being overridden)?
 

Here's a quote for you Bart. Back in the good ol' days of 2000, fresh from his coronation, here's Bush waxing eloquently on the President's role in our democracy,

"If this were a dictatorship, it would be a heck of a lot easier... ( Chuckles ) ( laughter ) ...just so long as I'm the dictator." - Commander Codpiece

Granted, Commandant Booosh seems to acknowledge it's not currently a dictatorship, but it's just a matter of time before Herr Yoo's examination of the quaint notions of our Founding Fathers.
 

Bart:

The cites listed in the brief are nothing more than persuasive given that they all seem to be plurality decisions. The first seems to indicate that because the court did not comment on whether it was appropriate for the President to ignore an allegedly unconstitutional law, it was ok. That's not a particularly ringing endorsement. I also note that you did not provide a reference to the text of the Constitution, which I am sure was just an oversight, given that you are such a textualist when it comes to the President's ability to gather intelligence (and the fact that no mention of such authority is made in Art. I).

Please explain what limitations there are with regards to directing troop deployment or intelligence gathering. Or conversely, the President has no limitations other than anything specifically mentioned in, say Art. I? Is that correct?
 

This comment has been removed by the author.
 

Whether you think Bush is a King or just a Dictator, that kinda off-topic to Tamanaha's allegation, but some more plausible explanations for why Bush said "it would be a heck of a lot easier" to be a dictator would be his lame humor or, just the truth. You guys were probably upset when he said "crusade" after 9/11 too, huh?
 

uh, yeah, I was.

It was a profoundly STUPID thing.

Read as much into it as you want.
 

to say.
 

Robert:

Why don't you think that Professor Tamanaha "presupposes" that this is NOT a legal disagreement between “reasonable minds”? Just because he uses the phrases "The obvious conclusion to be drawn . . ." and "Given this reality . . ."?
 

(no pot shots intended; elipses used in good faith; apologies for the repost, but it needed cleaning)

Charles: I will grant you that if...then there can be a priori no other logical conclusion except Tamanaha's that painting the situation as a legal disagreement between “reasonable minds” is a distortion.

It may be that invective and acrimony are popluar because they are easier. I try to write this while refraining from same.

Charles, you have rotated arguments on two axes. Professor Tamanaha did not argue that Kmeic's description of the conflict was "a priori" a distortion, but rather that Kmeic posited without soundly arguing that no view of the conflict other than his preferred description was possible. To review:

Professor Tamanaha: Here is the offending line: “The FISA-presidential power spat invites reasonable minds to disagree, as Comey and Attorney General Alberto Gonzales do.”

Reasonable minds can indeed disagree about the law, and often do on many issues. But that begs the question of whether this is one of those situations.

To get to the heart of what matters here, an important distinction must be made between an arguable position, and a viable or reasonable position.


The claim is that Kmeic begs a question. The question allegedly begged can be worded as: Can the conflict between the White House and the AG/OLC be aptly described other than as Kmeic has described it? The answer Kmeic reaches without argumentation in support thereof is, "No." That is, Kmeic rules out the possibility that the White House position was unreasonable, that this was anything more than a "spat".

To my eye, part of the difficulty with Professor Tamanaha's claim is that it relies on social or connotative presuppositions tied to Kmeic's use of a diminutive pejorative, "spat". This is a variation on the "It was a DoJ power play" argument Bart tried to foist off on us at first. Kmeic would like his readers to see this as such a "spat" because the alternative is to let the public look at whether perhaps the White House was relying on truly obscene and untenable arguments such as those provided previously by Yoo. Kmeic does not want the credibility of the White House position questioned, nor to give any chance to the AG/OLC side to make an even stronger case than Comey has already made. So he couches his preferred outcome in dismissive language. He does not argue his position, he presupposes it. And to do so he has to posit, axiomatically, that there is no difference between the universe of arguable positions and the universe of valid or reasonable positions. Professor Tamanaha points to the very important difference between these two domains and rightly calls Kmeic to task for being conclusory.

Hope this helps, truly, and hope you'll take me up on email.

Peace.
 

garth:

Did you boycott "Indiana Jones and the Last CRUSADE" too?
 

I liked the movie, but I didn't confuse it for a documentary either.
 

unlike Bush. [rim shot]
 

Charles: Why don't you think that Professor Tamanaha "presupposes" that this is NOT a legal disagreement between “reasonable minds”?

I've offered an olive branch. I've worked to change the tone of my posts. I would be thrilled to get email from you. I would be thrilled to see you attempt to support your claim that the universe of arguable positions is the same as the universe of reasonable positions. I would be thrilled to see you provide text from Kmeic's article substantiating your claim that Kmeic argued a position rather than presupposing that position. But I am not at this time, with so many balls sitting in your court, inclined to answer any of your questions.

Peace.
(ps: I'd start the off-blog dialog, if I had any means of reaching you. But your blogger profile lacks contact information.)
 

@all: The vagaries of my schedule are such that I won't have a lot of time between now and probably Monday morning. I dislike leaving in the heat of things, but meatspace takes priority, especially paying the bills. I'll be checking my email regularly; anyone who feels I owe them a comment is free to reach me at beau ( a t ) oblios-cap ( d o t ) com.

Peace, and have a great weekend!
 

You are under no obligation to answer my questions, Robert. Just as I don't have to e-mail you.
 

Have a great weekend.
 

Charles: ..Just as I don't have to e-mail you.

That is certainly the case. It was an invitation, specifically to achieve some level of rapprochement, offered because your energy and dedication are admirable and it is to everyone's benefit to foster robust discourse. That invitation, for that purpose, stands.

Really out this time, say what you like about me. ;)
 

I have to trust the President of the United States is making the right decision.

If that attitude had only prevailed in 1775, we would have trusted that George III had good reasons for acting as he did. Think of all the trouble saved!
 

Bart: To the extent that FISA attempts to direct intelligence gathering against agents of foreign groups, it is unconstitutional.

Of course, as has been explained to Bart many times, FISA does not direct intelligence gathering. It regulates it.

And of course, the administration cowers from testing Bart's "argument" in court. I would like nothing better.

Mister President, tell it to the judge.
 

Re: the silly FISA arguments, I wonder:

If the President's warmaking power is as absolute as some people (let's call them "Barts") like to say, then what about the following:

- Bush orders everyone between the ages of 12 and 20 conscripted into active duty.

- Congress outlaws the mutilation of prisoners, dead or alive; Bush counters that such mutilation is necessary as a tactic to discourage the enemy, and disregards the law.

Why wouldn't Bush be able to do these things as part of his executive warmaking powers?
 

testing
 

"Bart" DePalma, maladministration shill and bootlicker par excellance:

In sum, the law is clear that Article II provides the President with the power to direct intelligence gathering against foreign enemies, Article I does not provide Congress with a concurrent power to do so, Youngstown only applies to cases where Congress has a concurrent power, and the 4th Amendment does not require warrants for electronic surveillance of agents of foreign groups for the purposes of intelligence gathering.

0 for 4, "Bart".

Nonsense. On the contrary, there is:

1). No clear law that claims that the preznit had "Article II" powers to snoop.

2). Article I gives Congress power to write all kinds of law constraining and regulating the "military", including the entirety of Title 10 of the U.S. Code.

3). Youngstown applies, despite "Bart"'s bleating to the contrary.

4). The Fourth Amendment has no such qualifying language. Any hallucinations of "Bart" to the contrary are the result of an insufficient dose of Haldol.

Cheers,
 

Arne:

I agree with your first 3 points. I note that Bart does not cite any cases that hold that the President has plenary authority to regulate how intelligence is gathered and more authority, essentially, than Congress. Frankly, I doubt that the President does, because such intelligence gathering seems to be quintessential military activities that the Constitution grants to Congress, not to the President.

But, regarding the 4th Amendment, the issue is not so clearcut.Some pre-FISA cases held that the 4th Amendment warrant requirement did not apply to certain intercepted foreign communications. See the Wikipedia discussion (http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act#History
Congress passed FISA, in part to fill a gap left by these decisions' holdings. One case, in dicta, suggested, akin to Bart's view, that the President did have inherent authority to conduct such warrantless surveillance (in re Sealed Cases).
 

JaO said...

Bart: To the extent that FISA attempts to direct intelligence gathering against agents of foreign groups, it is unconstitutional.

Of course, as has been explained to Bart many times, FISA does not direct intelligence gathering. It regulates it.


My friend, the terms "direct" and "regulate" are synonyms.

Thank you for Exhibit 1 to support my first post:

The legal justification of FISA proponents, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility."

This pathetic attempt to justify the unconstitutional FISA gives new meaning to the cliche: a distinction without a difference.
 

Christopher said...

Arne: I agree with your first 3 points. I note that Bart does not cite any cases that hold that the President has plenary authority to regulate how intelligence is gathered and more authority, essentially, than Congress.

Depending on arne and wikipedia will get you in trouble every time.

Plenary authority is when one branch exercises a power that the others do not. All the cases I posted recognize the President's power to direct foreign intelligence gathering. There no provision in Article I and no case interpreting Article I (apart from the unsupported opinion of Judge Brown) which claims that Congress has a concurrent power. That is the definition of a plenary power.

Frankly, I doubt that the President does, because such intelligence gathering seems to be quintessential military activities that the Constitution grants to Congress, not to the President.

Feel free to cite the provision of Article I that provides such a power.
 

Bart,

The discussion of the President's authority to "ignore" an unconstitutional law and supporting court cases are all about some sort of open challenge in which the courts have the final say on the constitutionality of the law. You are proposing that the President unilaterally decide a law is unconstitutional and he therefore has authority to secretly break it and never let his lawbreaking reach the courts. There is no check on that power other than the President's own good faith.

As for your Article I and Article II arguments, you have made them numerous times, but two things are missing. First of all, what Article I power gives Congress the authority to create an intelligence gathering service in the first place? I see no mention of such a power anywhere in Congress's enumerated powers. Second, you have repeatedly argued that Congress's authority to regulate the armed forces is limited to "rules for the good order and discipline of members of the uniformed military such as the UCMJ," but I have never seen you cite to any authority on this subject other than a flat assertion. Do you have any?
 

Bart: My friend, the terms "direct" and "regulate" are synonyms.

Horse manure. The executive branch directs intelligence-gathering. But with respect to certain electronic surveillance, it is regulated by statutory rules enacted by Congress, just like we all are.
 

My friend, the terms "direct" and "regulate" are synonyms.

Oh, snap!

Wait a minute, though, the terms "regulate" and "legislate" are ALSO synonyms!

Quite a conundrum!
 

el:

Let me reverse the question to you: On what basis does a President enforce an illegal and unconstitutional law?

The President's first duty is to the Constitution, not to Congress.

As for your Article I and Article II arguments, you have made them numerous times, but two things are missing. First of all, what Article I power gives Congress the authority to create an intelligence gathering service in the first place? I see no mention of such a power anywhere in Congress's enumerated powers.

Intelligence gathering is a well recognized part of foreign policy and military operations. Article II grants the President blanket power over these areas except for the enumerated Congressional powers in Article I. Pursuant to the N&P Clause, Congress may create intelligence agencies to allow the President to exercise his or her powers to gather intelligence

Second, you have repeatedly argued that Congress's authority to regulate the armed forces is limited to "rules for the good order and discipline of members of the uniformed military such as the UCMJ," but I have never seen you cite to any authority on this subject other than a flat assertion. Do you have any?

Every single case which interprets this Clause addresses the good order and discipline of individual members of the uniformed services. I cannot list them all and, if I list a couple cases, some dirt stirrer like arne or anderson will claim that I left out the super double secret cases which recognize Congress' power to direct military operations. However, here are a couple for your review:

KINSELLA v. SINGLETON, 361 U.S. 234 (1960).

TOTH v. QUARLES, 350 U.S. 11 (1955).

REID v. COVERT, 354 U.S. 1 (1957).

Now, if you or anyone else here can give me links to the the super double secret cases which recognize that Congress' authority to regulate the armed forces includes the power to direct military operations, I will gladly revise my reading of this provision.
 

Anyone who believes that FISA is blatantly unconstitutional, that there is simply no reasonable argument to the contrary, is clearly unqualified to opine on the law.

The debate really ends right there, my friends.
 

Um, I understand the temptation, but may I respectfully suggest NOT arguing with Bart et al about FISA, at least in the context of discussing the implications of Comey's testimony. IMO, you are taking the bait the way Kmiec and other GOP operatives want you to: by arguing about FISA you are providing indirect support for the argument that what Comey testified to is a doctrinal "spat." It's an effective gambit, especially when you consider that it's not publicly known if FISA was at issue that evening.
The point of this particular game is to distract you from what actually happened, or to put it differently, make it look like a "reasonable" disagreement.


May I suggest that if you feel the need to engage with GOP operatives or their ilk, ask them whether they think Gonzales acted appropriately at Ashcroft's bedside. So far as I know, there are two GOP talking points out there for that question. Let's see if they have any new ones!
 

Now, if you or anyone else here can give me links to the the super double secret cases which recognize that Congress' authority to regulate the armed forces includes the power to direct military operations, I will gladly revise my reading of this provision.

My friend, the terms "direct" and "regulate" are synonyms...

:)
 

jao:

What conundrum? Legislate and direct are not synonymous. There are two degrees of separation between the terms by your own count.

This is an amusing argument coming from one who is upset that the NSA is allegedly tracking telephone numbers with one or more degrees of separation from captured al Qaeda numbers.

In any case, this is Exhibit 2 in how desperate and far fetched the the justifications advanced by those who claims that Congress has the power to direct intelligence gathering or any other military operation.
 

Bart,

1) I didn't make the "conundrum" comment. (Although it was a good one, PMS_Chicago!)

2) I'm not your "friend."
 

Let me reverse the question to you: On what basis does a President enforce an illegal and unconstitutional law?

If the President truly felt it were constitutional, one would hope that the President would challenge its constitutionality in court. To do otherwise is tantamount to accepting its constitutionality, no matter how many signing statements are written to excuse the cowardice of avoiding a legal debate.

Honestly, if the Supreme Court can be roused up quickly enough to decide an election because it was in the nation's best interest to do so quickly, they should be more than willing to hear the complaints of the President when national security is supposedly on the line.

Of course, you run into the same situation you've been harping on since January in respect to the Congress defunding the war outright--the results of such an action are easily predictable and not politically advantageous.
 

I meant to say "unconstitutional" in that first sentence, obviously.
 

Hey, all of you. That's enough already. I don't know whether to laugh at this string of comments or be concerned about compulsive behavior. It's so over the top that I almost regret writing the post (although only a few of you are actually addressing the post anyway).

Dialogue is good, but that ended some time ago.

Take a break. Enjoy your evening and weekend.

Brian
 

Interesting. So, according to DePalma, the fact that the President has the right during wartime to wiretap "foreign agents" means that he he has to right to wiretap absolutely anyone whom he himself declares to be a "foreign agent"? I rather doubt it; the Framers took a very dim view of that kind of executive power during wartime, having seen what kings were fond of doing with it. The task of determining whether there is a significant chance that the people proclaimed by the President to be enemy agents actually are such was, of course, the whole point of FISA -- which, lest we forget, was created precisely in response to Nixon's and J. Edgar Hoover's fondness for using their Cold War wiretapping powers to zap their own political enemies.

Not, I think, that dePalma is actually unaware of this. It's far more plausible that he's a liar than that he's an idiot.
 

Brian... (1.1 million and counting)

Yikes!
 

Sparky is right...debating FISA, Art. I v. Art. II; regulate v. legislate v. direct clearly takes our eyes off the ball. In this case, two DoJ true believers were usurped for the underwhelming "legal" opinion of the real estate attorney/goon (a better exemplar of the Peter Principle I've never seen). Anyway, Lil' Fredo's justifications, if they wouldn't fly with Ashcroft for chrissake, show how blatantly irresponsible, and criminal, this administration is. Hence, promoting Comey to titular AG and bullying the AG in the hospital. This is NOT an issue of reasonable legal opinions at variance with one another. It is the 28%'ers, agent provocateurs all, trying their damnedest to hide the wizard behind the curtain.
 

Brian:

I posted Professor Kmiec's reply to your and Marty's charges other the other thread http://balkin.blogspot.com/2007/05/is-this-best-administrations-surrogates.html

Have a good weekend too.
 

Der Schatten:

You are saying there's not ONE reasonable legal mind within the "28%'ers" (over 84,000,000 of us at last count)?
 

PMS_Chicago said...

Let me reverse the question to you: On what basis does a President enforce an illegal and unconstitutional law?

If the President truly felt it were constitutional, one would hope that the President would challenge its constitutionality in court.


We went through the problems in asking for an advisory opinion from the court in prior posts. We do not need to argue this again jao.

To do otherwise is tantamount to accepting its constitutionality, no matter how many signing statements are written to excuse the cowardice of avoiding a legal debate.

The precedent caused by enforcing the unconstitutional law is another argument for not doing so.

Honestly, if the Supreme Court can be roused up quickly enough to decide an election because it was in the nation's best interest to do so quickly, they should be more than willing to hear the complaints of the President when national security is supposedly on the line.

The President elect had a genuine case or controversy because he was in fact being injured when four Dem members of the Florida Supremes allowed the Dem elections officials in just 4 counties to count votes anyway they pleased for the Dem candidate.

In the case of FISA, the executive has no injury in fact to bring a case.
 

Bruce Moomaw said...

Interesting. So, according to DePalma, the fact that the President has the right during wartime to wiretap "foreign agents"...

The courts have unanimously stated this. I did not write any of these opinions. Read the cases I cited.

...means that he he has to right to wiretap absolutely anyone whom he himself declares to be a "foreign agent"?

I never said that nor does the case law say that. The executive has to identify and make the initial determination

Currently, over 30 members of the congressional intelligence committees, Justice and the NSA lawyers have been supervising the TSP for years now and no one (including the NYT sources) claims that it is targeting innocent citizens who are not foreign agents.

A number of allegedly innocent non foreign agents have brought suit claiming that they may have been wrongfully targeted by the TSP and none of the courts who have reviewed classified evidence in camera have found this to be the case. (The one plaintiff which does have some evidence his organization was targeted was in fact a financier of al Qaeda.)

So far, so good.
 

Bart: We went through the problems in asking for an advisory opinion from the court in prior posts. We do not need to argue this again jao.

It does seem futile at this point in this huge thread to reargue the question.

Suffice it to say that I believe there have been ample opportunities in a variety of venues for a case testing the merits of the adminstration's legal theories -- not an "advisory opinion," but a real case with real facts -- if the administration were willing to faciliate a test in good faith.

And you disagree.
 

Brian Tamanaha writes: Take a break. Enjoy your evening and weekend.

...but...but... This IS how I enjoy my weekend... :(
 

QA... but... This IS how I enjoy my weekend... :(

The "pursuit of happiness" didn't mean you had to hop into the ragtop and cruise for babes...

This is America, and if this is your idea of fun, knock yourself out!
 

But that begs the question of whether this is one of those situations

Oh, really. You're a lawyer and you can't get "begs the question" right? Notice: something either begs the question, or it does not. It does not beg any particular question.
 

"The executive has to identify and make the initial determination Currently, over 30 members of the congressional intelligence committees, Justice and the NSA lawyers have been supervising the TSP for years now and no one (including the NYT sources) claims that it is targeting innocent citizens who are not foreign agents."

Really, Mr. DePalma. Is it wise to be that ridiculously transparent in your arguments? Congress, of course, wasn't allowed to supervise -- or even know of -- this program for 3 years, until the NYT spilled the beans -- 21 months after Gonzales and Card paid that hospital call on Ashcroft. How the hell do we know what they were up to during that period? And what was the Administration proposing to do that so alarmed Ashcroft and Mueller that they threatened to resign in protest?
 

Bart: "The President elect had a genuine case or controversy because he was in fact being injured when four Dem members of the Florida Supremes allowed the Dem elections officials in just 4 counties to count votes anyway they pleased for the Dem candidate."

It's hard to know where to start, as this mischaracterizes what happened in Florida so much. No it wasn't just 4 counties, the Al Gore team asked for four counties, the FSC said it was to be state-wide. Also there's no evidence that the Al Gore team was adverse to a state-wide recount. Bart, you're being too lazy in what you write, a laziness in regards to what the truth is. "Counting votes any way they pleased?" Hardly, they were obligated by state law to use the states as set forth in Florida state law which mandates that votes that show a "clear intent of the voter" be counted appropriately. Yes, this gives much latitude in the recount, but similar laws were on the books in other states, and the USSC, in its effort to control precedent, limited the scope of the applicability of this case. "Four Dem justices?", I recall reading that at least one of these justices voting in the majority was appointed by Jeb Bush (R). Also, pray tell, how do you know their party affiliation? If you're trying to suggest bias, you should at least consider that Scalia and Thomas had close family members working with the incoming Bush Admin. "For the Dem candidate"? What, you think that these "Dem" election officials (how do you know their political affiliation?) stand over the vote counters and say "Count that vote as an Al Gore vote?" If you're going to try to make serious arguments, don't be so lazy with how you phrase things, and don't be so lazy in regards to describing accurately and honestly what the truth is.
 

whoops, I meant to say ". . .obligated by Florida state law which mandates that votes that show a "clear intent of the voter" be counted appropriately."
 

"Bart" DePalma:

"The President elect had a genuine case or controversy because he was in fact being injured when four Dem members of the Florida Supremes allowed the Dem elections officials in just 4 counties to count votes anyway they pleased for the Dem candidate."

No. Certainly not under an "equal protection" claim. He was not a Florida voter. They are the only ones that could have standing to claim a "vote dilution" even if things were as the Dubya campaign was falsely claiming. But ever if Dubya were a Florida voter, he'd have the additional problem in that "equal protection" cases require the showing of invidious intent as well as actual "discrimination"; something they did not allege.

Cheers,
 

Carl:

"Four Dem justices?", I recall reading that at least one of these justices voting in the majority was appointed by Jeb Bush (R).

IIRC, it was 5-2 Republican versus Democratic appointees. "Bart" just makes sh*te up. I think he got the "four" from the fact that four justices didn't agree with Dubya ... which of course is enough for excommunication from the Republican party.

Cheers,
 

Post a Comment

Home