Balkinization: Shorter Attorney General Gonzales

Comments:

Well-said. So much for upholding the dignity of the Presidency by this adminstration.

# posted by

Craig : 10:32 AM

I think everybody (on both sides of the partisan line) can agree with Prof. Balkin's analysis. Now it's up to the Representatives to determine whether the People have to continue taking this Administration's BS. I'd bet on them thinking there's still space left for some more.

# posted by

randomopinion : 10:40 AM

The exposure here of the Administration's Catch 22 on hypotheticals is especially beautiful.

# posted by

fafield : 11:00 AM

Linked to this here.

Good summary.

# posted by

Gary Farber : 12:18 PM

Cute and witty repartee sometimes provides keen analytic analysis. But, Jack, not this time. There either is, or is not, inherent constitutional authority of the President to conduct war. If the President concludes that he has such powers, and Congress disagrees, Congress can exercise the power of the purse, and Congress can impeach. Whining about interpretations that might be subject to criticism is a waste of time, especially when none of the readily available remedies are actually being pursued by presidential opponents in Congress.

What the AG did yesterday was skillfully, and yet with patience and humility, explain the legal grounds upon which a program of signals intelligence gathering could be justified under Constitution and statutes.

# posted by

Jim : 1:12 PM

Jim is correct here on a key point that it would be nice to see the Balkinization posters address:

If the Congress could authorize what the President is doing without running afoul of the Constitution, and a significant part of this argument is about whether it did do so with the AUMF, then why shouldn't the Congress pass a law clarifying that issue? Why not demand that Senators Durbina and Kennedy vote to deny the President this authority if they think Congress really does not want him to have it?

If that were to happen (though I doubt many members of Congress actually oppose what the President is doing here), then that would result either in the President stopping what he is doing or squarely putting the issue in terms of his inherent powers to act even in the teeth of an unambiguous effort of Congress to constrain him.

It's still not obvious whether that would be justiciable in the ordinary sense or only something that would be worked out as a political question (with impeachment being the Congressional remedy), but it would significantly clarify whether the program under discussion is a threat to the liberty of Americans as Congress understands it or whether we're really just witnessing political sound and fury signifying nothing.

# posted by

T. More : 3:15 PM

For some strange reason, all these blog commentors are running around today challenging the Democrats to "put their money where their mouth is" by seeking to clarify the AUMF. I don't know where all these people are coming from, although it might have something to do with the fact that Powerline confronted Dick Durbin with the argument yesterday and acted like it was some sort of "zinger."

In any event, Sens. Leahy and Kennedy introduced just such a clarifying resolution weeks ago, something the folks at Powerline didn't mention. It reads:

"Resolved, That Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force (Public Law 107-40) does not authorize warrantless domestic surveillance of United States citizens."

The full text is available here (pdf link)

# posted by

Steve : 4:20 PM

Steve,

I think the legal point here is non-neglible. If Congress does not act in the face of this Presidential action, then that tends to support the argument about its interpretation of the AUMF (a non-neglible though by no means uncontroversial interpretation). This because, I think, of the Midwest Oil doctrine (inter alia) which takes account of Congressional acquiescence as part of the interpretation of statutes when the executive is arguably acting ultra vires.

There are all kinds of problems with "congressional silence" as a factor in interpretation, but it is part of our tradition nonetheles. So it's not just the Democrats whose votes are of interest here, of course. I'm a "conservative" commentator who is not impressed by the "inherent powers argument" but if in fact this program does and would meet with Congressional approval, then I would not be worried about its ongoing existence.

Does this not seem a fair reason to you to think that people who support and oppose this program should at least together ask Congress to clarify its will here? I do not make the point to be polemical.

# posted by

T. More : 4:33 PM

Brilliant work. Gonzales represents a serious threat to foundations of our democracy. His memo on torture began our downward slide.

# posted by

greg wirth : 4:38 PM

Assuming for the sake of argument that the Administration's position regarding the AUMF is not frivolous, demanding that Congress clarify now begs the question why the Administration didn't ask for such clarification at the outset. They are the ones responsible for obeying the law.

Suppose, though, that Congress did pass such a resolution. What would that accomplish? The Administration would undoubtedly use the resolution itself as evidence that the AUMF was ambiguous such that its conduct up to now was excusable. Nor would "clarification" solve the Article II issue, whether going forward or looking back.

In short, demanding "clarification" is a diversion. It puts the onus on Congress when it should have been on the Administration, it creates potential confusion regarding past misconduct, and it sidesteps the critical Article II issue.

# posted by

Mark Field : 5:22 PM

I think, yes, when the President acts in such a way as to defy Congress, or claims that he is acting in accordance with the "real," unexpressed intent of Congress, it is pretty much incumbent on Congress to correct the record.

In a perfect world, this wouldn't be necessary, but in the real world of constitutional give-and-take, I do agree that neither side gets to sleep on their rights.

I do think there's a signficant issue in that the makeup of Congress has changed since the AUMF was passed. But while that might be an issue if, say, the Leahy-Kennedy resolution failed 51-49, we're not there yet. And if the majority of the Democrats don't even stand up at some point and say "hey, your interpretation of our statute is wrong," then no one can really complain if the President feels implicitly authorized to go forward.

My point was simply that the very thing people feel is missing, an attempt by Congress to correct the record, is in fact making its way through the system as we speak.

# posted by

Steve : 5:25 PM

Steve: it seems we are pretty much in agreement.

Mark: I have no position on who is more to blame for the mess in our politics. I have no brief for the way the administration has acted on this or myriad other issues where it seems determined not to seek compromise. At the same time, witnessing today's deplorable behavior by Democrats at the King funeral, I really don't think it's productive to have a game of "who started it."

Congress's failures to assert its proper Constitutional role predate this problem and this Congress. We don't declare wars any more--we vote to authorize the use of force. Then afterward Congressmen get to say "I did not vote for this war, I voted to give the President a bargaining chip!" Please.

The poisonous politics of our time have spilled over into this debate in a way that is not clarifying or edifying. If you are convinced that the President is responsible for that more than the Republicans, I have no reason to disagree. How does that change things? What is the legal force of the "onus" argument you propound?

I am aware of no "childishness" doctrine that lets Congress of the hook here if it has been less childish, or only more recently childish, than the White House. Unless your point is that this is a diversion from the criminality issue. OK--but clearly if there was criminality here that goes to the President--and it seems that the remedy is impeachment. Do you think if Congress cannot muster the will to clarify its position on AUMF that it will impeach and convict the President?

# posted by

T. More : 5:39 PM

Heh! It doesn't take much to lose one's credibility does it? Even for a pro-Bush hardcore "national security comes first" conservative like me, the "major organ malfunction" was way too much. The A.G. may be a very fine lawyer and patriotic American but I know longer trust his view or plan for America.

# posted by

nk : 6:37 PM

P.S. Can you please change the "know" into "no"? I am not illiterate, only old and nearsighted.

# posted by

nk : 6:40 PM

Steve:

I don't understand what you mean by "sleep on their rights". The Administration concealed the surveillance for 4 years. In that time it could have (a) asked Congress to amend FISA to cover what it wanted to do; or (b) asked Congress to confirm that the AUMF authorized what it was doing. It did neither. A defrauded party hasn't "slept on its rights".

There's no doubt that Congress could proceed this way. The issue is why it should. Asking Congress to "clarify" a resolution surely qualifies as unusual. Pretty much every thing Congress does is ambiguous in someone's mind, but going back to Congress and asking for clarification is not how we resolve those issues. There is plenty of ground already to reject the AUMF argument; what benefit do you see from Congress issuing one?

Both you and T. More ask, in essence, how can Congress fail to do such a little thing on the way to doing something bigger (halting the program in the future or impeaching the President)? Implicit in these suggestions, I think, is that the AUMF argument has some merit. I don't think it has any at all. That's why I ask for a reason why Congress should dignify it by a new resolution.

In the absence of any good reason for Congress to act, it looks like a way of complaining that Congress failed to do x before it did y, even though there was no reason to do x first. It's a distraction from the real issue, which is the scope of Article II power.

# posted by

Mark Field : 7:55 PM

What good will it do for Congress to pass a new statute when Bush can issue a signing statement saying that he'll ignore it? Impeachment is the only answer, and, as long as Congress refrains, it shares responsibility for Bush's crimes. Bush should have been impeached several years ago --the first time that he held someone in prison without filing charges beyond the few days legally permitted.

# posted by

Henry : 8:56 PM

Not to put too fine a point on it, Mr. Gonzales is a damned liar and a criminal just like Mr. Bush and Cheney.

And frankly, I think at this point anyone who thinks there is any serious question about that is (at best) a fool.

Let's consider the expression "necessary and appropriate use of force [UF]". That language clearly implies the existence of four categories of UF:

1) UF which is both unnecessary and inappropriate.

2) UF which is necessary but inappropriate.

3) UF which is apropriate but unecessary.

4) UF which is both appropriate and necessary.

Seems to me that strictly speaking, the expression is literal nonsense: that which is necessary requitres no authoriztion, and that which is appropriate is necessarily a matter of deliberation and approval.

The real question here is did the AUMF actually authorize anything at all, and whatever it did authorize it is utterly ludicrous to suggest that the Congress has any authority to authorize the President to nullify the laws by fiat.

Would it be necessary and appropriate to use nerve gas and biological weapons if the President says so?

Would be necessary and appropriate to exterminate 6 milllion jews or 60 million muslims if the President says so?

Would be necessary and approriate for the President to suspend the federal elections if the President says so?

The answer to all of those questions is NO, and the answer to the problem we are facing here is to see to it the Mr. Bush, Mr. Cheney, Mr. Rumsfeld, Mr. Gonzales, and all the rest of these neo-fascist criminals aretried and convicted for their crimes.

And their guilt is obvious from their public confessions, unless you'd care to pretend that there are no laws at all, in which case there is no United States at all, becasue the nation itself ie eniterly a creation of law.

So it seems to me at any rate.

Charly

# posted by

Charles Gittings : 9:08 PM

Absolutely agree, and am appalled by the administration's conduct and it's defense of it. Isn't the Bush Administration really saying that Marbury v. Madison was wrong? President can be the final arbiter of the Constitution, not SCOTUS. Can Balkinization speak to that?

# posted by

rkt : 10:06 PM

To be clear, the President doesn't have to sign a resolution, nor does he get the opportunity to issue a signing statement in connection with it.

When I say Congress shouldn't "sleep on its rights," I fully acknowledge that the AUMF argument is legally frivolous. But in a political war between the two branches, if the Executive is really, really determined to claim that Congress said black is white, then I think it would be prudent of Congress to assert that black is, in fact, not white, lest the public get the impression Congress doesn't really care.

This is particularly so in the present case, where knowledgable observers may get that the argument is frivolous, but the public at large has no way to make that judgment, and they may easily become misled by administration apologists who assert with a straight face that this is a total slam-dunk argument.

Anyway, it's a completely moot point, as Congress IS doing something!

# posted by

Steve : 10:46 PM

Even if a resolution would pass, what difference would it make? Once the bill is signed, the opinion of future Congresses is every bit as irrelevant to its interpretation as the "signing statement" that Bush makes. Congress doesn't have the power to interpret the law, the Courts do. The Court should pay attention to the debates that surround the bill's passage, but after the bill leaves Congress future resolutions and signing statements are no more relevant to a law's meaning than the New York Times editorial page.

You folks are correct that Congress should use the power of the purse to put a fast and hard stop to all this "unitary executive" nonsense--judicial activism of the highest order, inserting into Article II what is absent from the text, clearly revealing the dishonesty of many so-called "strict constructionists". They should also add a statement to every bill saying that the president's "signing statement" has no bearing on the meaning of the bill whatsoever--if the president doesn't like Congress's interpretation as revealed in Congressional debates, he shouldn't sign it. Congress should definitely do all of that--and I plan to vote for Democrats because they are far more likely to do it. But Congress's failure to do that by no means gives the president the right to break the law or invent new Constitutional powers.

This whole line of argument seems like a ego defense mechanism for government skeptics who voted for Bush to avoid facing up to their tragic mistake.

Not even I think that Bush is using this surveillance to spy on his political enemies like it's the 60s or 70s all over again, but if Bush gets away with this it will be very easy for future presidents of either party to do so. Anyone who doesn't want that would be wise to start screaming as loud as possible that Bush has gone too far.

Regarding the authorization to invade Iraq as a "bargaining chip", that's precisely how Bush sold it to Congress prior to getting any UN authorization, so you can hardly blame Congress for that. The final decision to end inspections and invade was completely Bush's, and that so many of his defenders (I'm not sure t. more is one of them) attempt to pass the buck for what is undoubtedly the biggest decision of his term is absolutely incredible to me.

# posted by

Don Crimbchin : 11:19 PM

Taking JkB's tack as if the attorney general himself speaking:
We thought the AUMF was justification for the program, though we only know generally what the program is and the president and I are protected in our executive right to order the program to operate the way it is unless congress cancels funding for the AUMF and cancels funding for the program.
We think we have the votes in the judiciary to keep the program running even if congress votes to cancel that program's funds.
We expect congress intelligence committees to hear more than we can tell the judiciary committee.
Congress needs to improve FISA, maybe make it a software program that issues reports to congress, or abandon it entirely as it is probably unconstitutional and we have the votes on SCOTUS to assure that it is declared so, or that it is vitiated enough to force congress to try some other approach like impeachment.
We know this is an impeachment weary congress having nearly completed three such procedings in the past 35 years.

# posted by

John Lopresti : 11:30 PM

after the bill leaves Congress future resolutions and signing statements are no more relevant to a law's meaning than the New York Times editorial page.

Future resolutions aren't dispositive, of course, but surely this is an overstatement.

# posted by

Steve : 2:23 AM

While a sense-of-the Senate resolution would be interesting and perhaps useful, a real "clarification" should have the force of law.

It is obvious that Democrats are too afraid of being branded "soft on 9/11" to challenge the "Terrorist Surveillance Program" directly on their own. The best hope is for some political compromise sponsored by Republicans (Graham, DeWine, Brownback). That proposal, which effectively codifies authority for the de facto program described by the administration, could be combined with language affirming that the AUMF itself provides no surveillance authority.

The administration has already brushed off the Republican senators' compromise, just as it brushed off Specter's plea to let the courts decide if the current program is lawful.

Several key senators -- Frist, Pat Roberts, Cornyn, Hatch, Sessions -- are obviously singing the White House tune.

Some senators -- notably McCain, whose anti-torture amendment is threatened by the same sweeping claim of "inherent" executive war power -- have not yet taken sides.

Ultimately of course, the President claims the authority to do whatever he wants no matter what Congress does. I don't think anything short of a Supreme Court order would dent his hubris. The problem is getting a case in the courthouse door in the first place.

I am surprised that no one has shown interest in backing Specters' proposal to have the matter adjudicated in the FISA courts. I have never even seen an explanation of what form such a test case could take, or whether it would require some legislative tweaking of the FISA courts' jurisdiction.

# posted by

JaO : 11:42 AM

JaO:

The most likely source for a judicial ruling would be a motion to dismiss by a criminal defendant who was identified by warrantless surveillance. Such a motion has already been made in at least one case. http://timesunion.com/AspStories/storyprint.asp?StoryID=442855

A judicial determination of illegality would raise the political cost for the Administration. However, any ruling by the SCOTUS in such a case seems likely to be years down the road.

Congress has the ability to resolve the Constitutional question -- impeachment and conviction would be at least as definitive as any court decision. Whether Congress has the will to do that is another matter entirely.

# posted by

Mark Field : 1:19 PM

Mark Field,

In today's polarized atmosphere of one-party control, there is no realistic prospect that this matter will culminate in impeachment and conviction.

Bush's position has hardened this week, taking us closer to a true constitutional crisis. I am interested in reasonable solutions that lie somewhere between impeachment and total capitulation to the President's power grab. If you insist on the former, you will probably end up with the latter.

# posted by

JaO : 2:42 PM

JaO: You just don't get it: we're already there - the nation is in the hands of criminals, supported by a political party which largely beleives the crimes are just a good idea.

# posted by

Charles Gittings : 2:50 PM

Congress has the ability to resolve the Constitutional question -- impeachment and conviction would be at least as definitive as any court decision

Well, yes, except even in that far-out scenario, Dick Cheney becomes President, and then you have to impeach him in turn.

# posted by

Jack Keefe : 3:07 PM

Jack Keefe,

The fantasy is that the impeachment of both Bush and Cheney occurs in 2007, after Democrats capture the House. Then Pelosi becomes president.

I am less interested in pursuing that partisan fantasy than I am in restoring the rule of law now.

# posted by

JaO : 3:45 PM

JaO:

I don't mean to dismiss solutions other than impeachment. I just don't see SCOTUS review as likely to be timely. It's hard to rush cases there, and harder yet to do so on the critical Art. II issue.

I also have serious concerns about how the current Court might rule on the issue. If Congress fails to impeach, that need not affirm the Bush position because the failure can be attributed to politics. If the Court rules in Bush's favor, that's likely to settle it.

I'm all in favor of resolution short of impeachment, at least one which confirms the lack of power under Art. II to dispense with the law. However, the very factors you mentioned in your original post make any such resolution difficult.

# posted by

Mark Field : 3:45 PM

Political compromise in Congress and judicial resolution are mostly distinct scenarios.

The one overlap is in Specter's proposal, which involves a political appeal that Bush cooperate in setting up a test case. I think this is actually the least likely scenario, because the last place Bush's lawyers want to make their "legal" arguments is at 1 First Street NE.

Unlike you, I am fully confident that if Bush's case for exclusive executive power were squarely presented there, he would lose decisively.

# posted by

JaO : 4:36 PM

I wish we could say some criminals had been caught through this warrantless surveillance program! Sadly, I don't think that's the case. I think the motions that have been filed by criminal defendants on this basis are pretty much fishing expeditions that will not go anywhere.

Some kind of review by the FISA court seems to be the most logical, but the administration seems completely uninterested in allowing that to happen, and I'm not sure how the issue would be argued in an adversarial way.

# posted by

Steve : 7:21 PM

Steve,

I am not sure how a case would get started in the FISA courts, but Sen. Specter clearly has an idea for a test case. His scenario apparently would require the administration to cooperate; it might also entail a legislative tweak to the courts' jurisdiction. I wish the press and other interested parties would explore Specter's idea more fully.

There is precedent for an adverserial appeal of a case in the Foreign Intelligence Surveillance Court of Review. In the 2002 In Re Sealed Case, the court solicited the ACLU and similar organizations to argue against the government. A case from that court, I believe, is reviewable by SCOTUS.

# posted by

JaO : 7:33 PM

Good points. One problem may be that although the administration MAY be persuaded to reveal the details of the program to the FISA court or to Congressional leaders, I just don't see them letting the ACLU in on it.

To argue against the program you really need to be informed as to exactly what it does.

# posted by

Steve : 8:19 PM

Steve,

If it worked the way In Re Sealed Case worked, all the factual details would be handled at the lower-court (FISC) level. The questions of law, handled at the higher-court level, are not secret. It is at that point that the external parties are involved.

All of us citizens are allowed to know what the law is. Even the ACLU! That is shocking to some people.

# posted by

JaO : 9:57 PM

Sensenbrenner 50 interrogatories; there are four weeks before Department of Justice reply is due. There is still one court stripping case being heard privately at SCOTUS though the Chief has recused, on February 17; and defense is asking full private hearing proceed as scheduled for March 28. The 17th is the DoJ's motion to dismiss. I don't see a reconstituted military commission declaring FISC disbanded, but the courts are going to tend toward a veritably congressional strength irrascibility if the replies to the 50 interrogs are anything shy of repentant.

# posted by

John Lopresti : 12:18 AM

Meanwhile, NYT reports:

"In another development Wednesday, Senator Arlen Specter, the Pennsylvania Republican who leads the Judiciary Committee, said he had begun drafting legislation that would require the administration to go before the Foreign Intelligence Surveillance Court to seek its ratification for the program."

Apparently Specter is proceding in a different direction, seeking to craft legislation that somehow would force the test case. Details of how this would work are unknown to me.

# posted by

JaO : 3:02 AM

Jack Keefe, in a comment above, said that, if Congress impeaches Bush then Dick Cheney becomes President, and it has to impeach him in turn. I saw Molly Ivins on t.v. report having seen a bumper sticker that read "Impeach Cheney first/"

# posted by

Henry : 2:13 PM

Perfectly said.

I'd add only one thing. If challenged with this characterization, Gonzales would politely disagree, but decline to explain why.

# posted by

Bill : 12:21 PM