Basis for Spying in U.S. Is Doubted
By ERIC LICHTBLAU and SCOTT SHANE
Published: January 7, 2006
WASHINGTON, Jan. 6 - President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.
The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?
The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale "does not seem to be as well grounded" as the administration's lawyers have argued.
The administration quickly disputed several conclusions in the report.
The report was particularly critical of a central administration justification for the program, that Congress had effectively approved such eavesdropping soon after the Sept. 11, 2001, attacks by authorizing "all necessary and appropriate force" against the terrorist groups responsible. Congress "does not appear to have authorized or acquiesced in such surveillance," the report said, adding that the administration reading of some provisions of federal wiretap law could render them "meaningless."
From the standpoint of those of us who don't much like governance by low IQ emperors
Third, by moving away from the issues like Roe that have been used to polarize and to motivate the rightwing base to behave predictably, this issue seems certain to do damage to conservative consensus (privacy and civil rights consequences) and to help alert the broader public (swing voters) to the extremism of the Bush crowd.
By Charles Babington
Washington Post Staff Writer
Saturday, January 7, 2006; Page A05
Seven current and former federal appellate court judges will testify on behalf of Supreme Court nominee Samuel A. Alito Jr. next week, an extraordinary role for the sitting judges who will be dealing with a colleague who could be positioned to uphold or overturn their rulings.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said yesterday that he agreed to allow the judges -- all current or retired colleagues of Alito's on the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit -- to address the panel because they can speak to some of the most contentious issues surrounding the nominee.
"They will testify about his approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view," Specter said in an interview.
Specter will chair the weeklong confirmation hearing, to start Monday, in which Democrats have vowed to press Alito aggressively about his antiabortion statements, support for a powerful executive branch and other matters. Senators from both parties predict the confirmation battle for Alito to be tougher than that for Chief Justice John G. Roberts Jr., who was approved 78 to 22 by the Republican-controlled Senate in September. The judges are tentatively scheduled to appear on Thursday. The Democratic and Republican sides have chosen 15 witnesses each.
There's also an equation here of "Am I, Republican Senator X, going to be in a better position maintaining solidarity with the folks who run the shop in my party even giving up some powers and leverage or better off if I risk serious electoral losses and party dominance through breaking ranks and looking weak, confused, uncertain?"
Conservatives Plan Pre - Alito Hearing Rally
WASHINGTON (AP) -- Sen. Rick Santorum and Focus on the Family founder James Dobson will headline a rally Sunday for conservatives in Philadelphia one day before the start of confirmation hearings for Supreme Court nominee Samuel Alito.
The Family Research Council, which is backing the event dubbed ''Justice Sunday III,'' said on its Web site that organizers were defending religious liberty and ''raising the alarm over liberal secularists' attempts to expel prayer and people of faith from the public square.''
Samuel Alito v. James Madison
No member of the Senate who takes seriously the oath they have sworn to defend the Constitution will vote to confirm judicial activist Samuel Alito's nomination to serve on the U.S. Supreme Court.
To a greater extent than any nominee for the high court in recent memory, and very possibly in the long history of the country, Alito has placed himself clearly and unequivocally at odds with the original intent of the authors of the Constitution and the incontrovertible language of the document.
Alito is consistently on record as favoring steps by the White House to -- in his words -- ''increase the power of the executive to shape the law." Twenty years ago, as a member of the Reagan administration, Alito was in the forefront of efforts to legitimize executive power grabs designed to allow presidents to take dramatic actions, sometimes in secret, without the advice and consent of Congress...
James Madison, the essential drafter of the Constitution who would go on to serve as the nation's fourth president, expressed the concern of the founders when he wrote: "Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare." full article
The Limits of Power: Questions for Alito
Jeremy Brecher & Brendan Smith
The Supreme Court confirmation hearings for Samuel Alito represent the first major battle in an emerging constitutional war over the authority of the President. Revelations that President Bush authorized the National Security Agency to spy on US citizens without court approval have shifted the focus of the hearings from domestic social issues to what distinguished University of Texas law professor Sanford Levinson describes as "the major issue before the Court, and the nation, both now and in the foreseeable future.... [Namely] the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary."
What laws do not become "meaningless" given this administration's assertion of Presidential power, inherent in the post and/or during 'wartime'?
SO YOU THOUGHT all good things came from Santa's workshop at the North Pole? Give the other pole some credit too. This week, a little good news came from Antarctica, where Sen. John McCain is getting an update on climate change from scientists.
No, sorry, the good news has nothing to do with climate change. The ice cap is still melting, or breaking, or sinking, or whatever it is that it's not supposed to be doing. The good news is that McCain made it clear Wednesday that if President Bush tries to circumvent congressional prohibitions on the inhumane treatment of prisoners, McCain — one of the few American politicians with a functioning backbone — doesn't intend to let him get away with it.
Last year, McCain introduced an amendment to the defense appropriations bill prohibiting U.S. personnel from subjecting prisoners anywhere in the world to cruel, inhumane or degrading treatment, and the Senate approved it, 90 to 9. Bush, who apparently thinks we can't win the war on terror without becoming as inhumane as our enemies, initially threatened to veto any legislation containing McCain's language. But the overwhelming support in Congress for the amendment made it effectively veto-proof, and after a protracted standoff, the president finally agreed to sign the bill in late December.
The media announced this as a victory for McCain, his congressional supporters and the large majority of Americans who tell pollsters that torturing terror suspects is not acceptable. But the president still had a bit of mischief up his sleeve. When he signed the legislation, Bush issued a signing statement saying he planned to construe the McCain amendment's absolute prohibition on cruel, inhumane and degrading treatment "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective … of protecting the American people from further terrorist attacks."
This may seem like so much legalistic gobbledygook, but it's more sinister than that. It refers to the administration's astonishing claim that whenever the president asserts that he's acting in the interests of national security, he's constitutionally permitted to violate any federal laws he finds inconvenient. Translated, Bush's statement says, "I'll sign a law prohibiting cruel, inhumane and degrading treatment, but because I'm president, I can ignore it." As blogger and Georgetown University law professor Marty Lederman notes, Bush's signing statement was "the commander-in-chief version of 'I had my fingers crossed.' "
The legal effect of such presidential signing statements is controversial, but here, where the whole purpose of the statute is to create a loophole-free ban on a practice that the overwhelming majority in Congress finds abhorrent, it's hard to see a court siding with the president.
In the short term, though, only Congress can exercise a meaningful check on presidential power run amok. That's why it was good news when McCain took a break from the glaciers to coordinate with Sen. John Warner on a statement reacting to Bush's "I had my fingers crossed" maneuver: "We believe the president understands Congress' intent in passing by very large majorities legislation governing the treatment of detainees…. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration's implementation of the new law."
It's not ringing oratory. But if we again translate the dry legalism, it's a masterpiece of understated menace: "Don't try it, pal. We're watching you."
And McCain and Warner were promptly joined by another key Republican, Lindsey Graham, who added: "I do not believe that any political figure in the country has the ability to set aside any … law of armed conflict that we have adopted or treaties that we have ratified. If we go down that road, it will cause great problems."
It's odd how the president, whose popularity remains abysmally low, seems determined to alienate the last remaining moderate Republicans. Spitting in the face of crucial Republican Senate leaders seems weirdly selfdestructive.
After all, Congress may not be able to prevent the president from ignoring the McCain amendment, but using the power of the purse and other tools, it can sure make Bush's life miserable for the next three years.
Oh certainly, Debra L A W, and I am sure that the House Judiciary Committee will follow up on that immediately. Rep. Sensebrenner is, as the Chairman of the Judiciary Committee, ready to begin.
. . . What explains Alito’s nomination?
. . . Key to any answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution. Dick Cheney has apparently been obsessed since his own service as Gerald Ford’s Chief of Staff with returning the presidency to the “imperial” status that was, he thought, the victim of Watergate. For him the Bush Administration is about rolling back what are perceived as illegitimate incursions on raw presidential power. . . .
This makes it essential, obviously, that every member of the Senate Judiciary Committee, led by Senator Spector, grills Judge Alito in the hearings. He must be probed on his views of Article II, including the Commander-in-Chief Clause and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President essentially to do whatever he wishes so long as there is a good faith belief that it is “defense” of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the “amputated Constitution” should give us all pause, and we should find out what kind of constitutional doctor Samuel Alito would be on the Supreme Court.
Had Alito been nominated two years ago, many of these questions might have sounded “academic.” In the aftermath of the disclosure of memos written within the Department of Justice justifying the President’s “inherent” right to torture and then, more recently, of Bush’s own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.
Some observers are throwing around the idea of impeaching George W. Bush. For a variety of reasons, that is unlikely to happen. We are almost certainly be stuck with Bush until 2009. But we are not stuck with having to ratify the would-be-king’s choice of his courtiers. Samuel Alito is undoubtedly very bright, and he is probably as pleasant a person as many of the stories make him out to be. But there is also a very high likelihood that he has been chosen to assist in the overall project of executive aggrandizement, and no senator should vote to confirm his nomination unless he or she is absolutely assured that that is not the case. The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.
Debra_Law wrote:It will be interesting to see how Alito responds to questions during his confirmation hearing about executive branch power and the president's use of signing statements.
I agree. I'm just not sure how a senator, can ask those questions effectively. The Roberts hearings weren't very encouraging in this regard. Ask too directly, and he will answer: "I can't comment on cases that may come before me." Ask too broadly, and he will give you a generic "Constitutional Law 101" lecture on the subject, describing what the textbooks say but not his own perspective. That's the optimistic scenario anyway. The pessimistic version is that he pulls a Scalia. C-Span, in parallel to the Roberts hearings, also replayed two hours from the Scalia hearings. At one point Scalia said literally: "Well, maybe I could tell you whether I think Marbury v. Madison was rightly decided. But let's stay off that slippery slope." (This quote is from memory, so probably not strictly literal.)
Joe and Debra, based on your experience in cross-examining witnesses, which questions would you ask Alito to elicit the most meaningful responses you can get?
One of the most important differences between the Alito hearings and the hearings for Chief Justice John Roberts is that many more of Judge Alito's early writings seem to express his own view of the correctness of certain Supreme Court rulings - rather than simply the views of his bosses (as seemed to be the case for many of Chief Justice Roberts' memos early in his career). . . .
Once a nominee's past views are known, the burden should be on him to demonstrate that he no longer holds those past views.
