Winning in November, Defending the Constitution – A Debate

Cross-posted to TPMCafe

My post Winning in November, Defending the Constitution generated a lot of comments…about the events of 9/11. Buried in those off-topic comments was a very good debate between myself and Gettysburg on the validity of my post’s core assertion: that Bush is acting outside the law and has overstepped the Constitutional bounds of the Presidency. What follows is an edited version of that debate. I have made some organizational adjustments, but I have not added any new material. The primary purpose of the edits is simply to keep this post from being overly long (please see the original discussion thread if you want to see the debate in its entirety). Gettysburg has given me permission to quote him in this post. I’d also like to sincerely thank him for taking the time to thoughtfully debate me. Having a variety of viewpoints here at TPMCafe is one of the main things that makes the Discussion Tables worthwhile. I hope this post generates further input from other readers as well.

Discussions of complex issues can become a bit of a mess, so I’ve reorganized the comments into general topics. I’ve put Gettysburg comments in italics, and mine are in plain text.

You’ve got your sources, and I’ve got mine

I’m sorry but your entire post is little other than sensationalism. If you HONESTLY believe the Bush administration has steered our nation away from Democracy toward a dictatorship, then perhaps you should consider taking a vacation and getting away for a while. Believe it or not there has been no trampling of the Constitution. Have laws been broken and lies promulgated? Sure, but not any more than any other administration….

In the practical space of a blog post, I could devote only so much space to documenting the flaws in the arguments the executive branch has used to justify its belief that it is above the law. To compensate for that, I included links to other resources on the web where you could get that information.

So let me suggest this: I’ll take a vacation as you recommend, and you do some homework. Here are your assignments:

Yale Law Professor Jack Balkin has a concise but thorough overview of why the executive branch’s theory of its own power is unprecedented and quite dangerous: Reductio Ad Dictatorem

Columbia Law Professor Michael Dorf explains why the “inherent powers” argument recited almost daily by Bush supporters holds no water: What are the “Inherent” Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights

This letter [PDF] from 14 law professors and former high-ranking federal officials to the Congress provides a highly detailed discussion of why Gonzales’ justifications for the Presidents actions have no merit.

…I would not suppose that the arguments of either of these scholars could or even should be dismissed due to their political affiliation. I am merely pointing out that there are several conservative commentators of equal reputation who argue that the Bush administration is inherently justified in pursuing its vigorous national security platform. Charles Krauthammer, for example, has repeatedly backed the administration on a number of platforms including immigration and national security. You can read for yourself here. Also, the likes of Fred Barnes and William Kristol are enormously influential on Capitol Hill, the White House, as well as other GOP circles.

In Krauthammer’s “Impeachment Nonsense” piece, he cites two sources to support his position: Orin Kerr and John Schmidt. His quote from Kerr consists of only two words – I would advise you to be awfully wary of pundits who parse words so narrowly like this. If you read Kerr’s full analysis at the Volokh Conspiracy, he concludes that A. it’s an open question whether the NSA warrantless wiretapping program violates the 4th amendment (I think he’s correct on that one – 4th amendment precedents do not point to a clear conclusion), B. he doesn’t see a valid exception for Bush to get around the FISA statutes, C. he doesn’t think the AUMF extends to cover the NSA program, and D. he says he can’t find any caselaw to support the President’s Article II argument. It’s hardly a ringing endorsement of the President’s position. In regard to Schmidt, Media Matters has a very thorough analyses of the inaccuracies of his statements on this matter. In general, as I’ve studied this, I’ve been finding cohesive and well supported arguments among those who say the President’s actions have been unconstitutional, and I see a lot of partial quotations and misconstruing of Constitutional history on the other. If you can point me to a more substantive source than Krauthammer, I’d be happy to read it.

It may also interest you to know that there are die-hard Republicans who doubt the legitimacy of Bush’s actions. See Republican Speaks Up, Leading Others to Challenge Wiretaps and fierce anti-Clintonite Bob Barr’s comments at the Conservative Political Action Conference.

Separation of Powers and the limits of Presidential power

…Should we be surprised that a president has attempted to rule based on ‘inherent authority?’ It would seem as if any ruler would naturally try to preserve as many rights as is humanly possible.

It sounds like you need to read the Dorf piece more carefully. Bush is not attempting to rule based on “inherent authority.” He (or more precisely, the Justice Dept) has created a new and radical theory of Constitutional interpretation that recasts traditional understandings of “inherent authority” into claims of “exclusive authority.” This is not preserving rights, this is claiming entirely new rights. There are lots of ways to dig into this, but let’s go with a simple, straightforward example that Dorf mentions:

…The Constitution expressly grants to Congress the power to “make Rules concerning Captures on Land and Water.” A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President’s claim [in his signing statement for the McCain anti-torture legislation] to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.

Bush and his Justice Dept believe the Presidency is vested with unlimited authority in the area of national security – authority that cannot be challenged or reviewed by the other branches of government (this theory was first put forth in 2001 by John Yoo – see here). When you take this theory and hold it up against the text of the Constitution, as in Dorf’s example, the absurdity – and the dangerousness – of this theory become plain.

So it seems as if Congress, who has the authority to check these violations on the part of the president, should be the body in question. In short, you blame Bush when you should probably be blaming Congress for not implementing their Constitutional authority to check the powers of the executive. The Supreme Court, for that matter, should also come into the picture.

You are absolutely correct about Congress abdicating its oversight responsibility. Also, as I argued in my post, the Democrats should be ashamed of themselves for ignoring this issue. The role of the Supreme Court is a bit different. It can’t do anything without having a case brought before it, and the Bush administration has worked hard to make sure that doesn’t happen, as it did in the Padilla case.

From my standpoint, if the oldest child in a family steals extra cookies out of the cookie jar because he/she is the only child tall enough to reach it, it is up to the parents to ensure that it does not happen again. When the parents fail to punish or otherwise rectify the wrong, the child can hardly be called into question unless on a purely moral basis. And we all know how far moral arguments get these days.

Bush is not a child, he is an adult who has sworn an oath to defend the Constitution. It is my belief that the unprecedented and extreme theories of Presidential power he has both adopted and acted upon are deliberate moves that constitute violations of that oath. The fact that Congress isn’t doing its job does not absolve him of his responsibility to respect the role of the President as outlined in the Constitution. In the rare cases when previous Presidents overstepped their bounds – such as when Lincoln suspended habeas corpus and Truman attempted to seize the steel mills – both ultimately acknowledged their overreaching and submitted to Congressional and judicial authority. In contrast, Bush has taken every opportunity to evade judicial review and ignore Congressional authority.

I’m not implying that I believe Bush has NOT attempted to skirt certain portions of the Constitution. I believe he has utilized loopholes in that document as well as the FISA measures. …if Bush indeed has trampled the Constitution, he has done so to make the country more secure.

There are two serious problems with this argument. One is that you, me, and every other US citizen has to simply trust and hope that your assertion is true. By deliberately evading judicial review of his actions (such as in the Padilla case) and violating duly enacted Congressional laws such as FISA, we are left to merely hope that Bush is being honest and fair in his actions. Our system of checks and balances was designed to ensure that we, as citizens, would never have to be in this position – in my opinion, that system has now broken down. The second problem with your argument flows from the first: the Bush administration’s public record of decision making, from Iraq to Katrina, does not demonstrate particularly high levels of competence. Why should we assume the actions the Bush administration takes in secret are executed with any greater competence than its public actions? Furthermore, in regard to FISA, Bush has dealt with the Congress (and therefore the public) dishonestly. In the Patriot Act, Bush asked for a number of changes to FISA and other laws to allow the executive branch freer reign in the War on Terror. Congress gladly enacted these changes, and the Bush administration heaped praise on Congress for doing so. Then, in secret, they went ahead and broke the new laws anyway (remember, the warrantless wiretapping became public only because of a leak). With this kind of track record, why should I blindly assume that Bush is competently using his secret powers to keep the country safe, and why should I blindly assume he is not abusing that power?

As we’ve discussed before, it is the responsibility of Congress to check any unlawful action by the Executive Branch. Since nothing has been done by that body I see no reason to assume that the actions by the president have not been legal.

If I were to break the law and get caught, but I had enough pull in the political system to walk away from it, that doesn’t change the fact that I broke the law. This is essentially what my post was about: we need to get new people in Congress who will stand up and defend the prerogatives of the legislative branch.

…I believe Bush probably has taken liberties with the law, but has not done so with negligence. I feel the arguments being made against him are mostly moral in nature and will survive only as long as his presidency. I’m not convinced that these issues will persist into the next administration.

I think you couldn’t be more wrong here. Prior to the mid-20th century, power had ebbed and flowed between the Congress and the President. But starting with World War II, power has increasingly flowed to the President (with a fairly brief pause after Watergate). I don’t see any reason to assume that this trend of power flowing to the President will not continue. If Bush’s actions are allowed to stand, the next President will almost certainly do the same things, or even try to push the envelope further. If Hilary Clinton is elected in 2008, I’ll be awfully curious to chat with you again then and see if you still have the same complacent attitude towards unchecked Presidential power.

The NSA warrantless wiretapping program

…the domestic surveillance program is limited to storing certain information in databases which can then only be accessed with probable cause. In effect, the program DOES NOT allow for the conversations of Americans to be recorded or even listened to. Rather, if probable cause against an individual is acquired, THEN actual surveillance may take place; but not before.

This is a very misleading statement, as you’ve left out two key points, and you’ve made one factual error: A. decisions about who to wiretap are made solely within the executive branch – there is no judge making a probable cause determination (hence the moniker “warrantless wiretapping”), B. the NSA is not asking a judge for permission when it wants to access any of its own data from this program, and C. General Hayden said the NSA is applying its own standard of “reasonable basis to believe” when deciding whom to wiretap, which is a lower standard than probable cause – see here. I can’t imagine a setup that would be more prone to abuse.

Suspension of habeas corpus

[In a response to another commenter] Those being held without due process are not Americans and are war criminals.

Aside from the logical fallacy of your claim (how can you conclude someone is a war criminal without some form of due process to determine if they committed war crimes?), it may interest you to know that the Bush administration – solely on the President’s authority – locked up two US citizens without charge for several years, without access to lawyers, and with long stretches in solitary confinement. See here. The Padilla case is particularly disturbing since he was a US citizen, apprehended on US soil.

The suspension of Habeas Corpus is far from being unprecedented. I’m sure none of us here have all of the details surrounding the Padilla case. It’s easy to sit by our computers and say, “Bush didn’t honor their rights!” But the possibility certainly exists that such action was warranted.

If, by “far from being unprecedented,” you mean that it’s happened only once before in our entire history, then you’re correct. It was President Lincoln during the Civil War: “He did so in response to riots, local militia actions and the threat that the Southern slave state of Maryland would secede from the Union leaving the nation’s capital, Washington, D.C., in the south. He was also motivated by requests by generals to set up military courts to rein in “Copperheads” or Peace Democrats, and those in the Union who supported the Confederate cause.” The difference between Lincoln and Bush is this: “However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, explicitly recognizing that only they could do so.” Bush has recognized no such Congressional authority.

You are correct that we don’t know all the details surrounding the Padilla case. Neither do any judges or anyone outside the executive branch. But the proof is in the pudding: faced with a pending Supreme Court hearing, which would have given the Bush administration the opportunity to demonstrate why such extreme actions against a US citizen were necessary, they abruptly moved him from military to civilian custody, thus obviating Padilla’s case. I think you can only conclude from this that they knew their evidence about how dangerous he supposedly was simply wouldn’t stand up to outside scrutiny. Glenn Greenwald sums up the situation well:

…the cases of Yaser Hamdi and Jose Padilla — two American citizens whom the administration abducted (in Padilla’s case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming — based solely on George Bush’s secret decree — that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.

But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush’s decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla’s case, the administration — one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla’s 3 1/2 year lawless incarceration — suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla’s claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.

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