America... Spying on Americans

No, Miss Girl, he apparently can't figure that out on his own . . .

Then by your definition,it isnt possible for there to be a neutral party.
The intelligence committee is controled by whatever party controls congress,so that counts them out.
The judges are appointed by the president,so that counts them out.

But now we know that waler is a anti semite

I dont want a painter overseeing the plumbers working on my house. I dont want a carpenter telling the electricians how to do their job. And I dont want a politician telling anybody how to do their job,unless its another politician.

And I dont want a politician telling anybody how to do their job,unless its another politician.

We have seen what happens when politicians tell the military how to fight wars,and I have to ask...do we really want that same kind of snafu when it comes to matters of national intelligence?

I dont!!

mysteryman wrote:

I dont want a painter overseeing the plumbers working on my house. I dont want a carpenter telling the electricians how to do their job. And I dont want a politician telling anybody how to do their job,unless its another politician.

But George W. Bush, who authorized the domestic spying, is a politician, so why would your objection apply to this case?

He authorized that it was done,but did he tell the NSA HOW to do the job?
That is the difference.
Tell them what you want done then get out of the way and let them do it.

The Supreme Court rejected this assertion of unlimited Executive power, just as it did in Hamdi.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579

Justice Black, opinion of the court:

Quote:

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.

Justice Jackson in concurring opinion on Youngstown:

Quote:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. 5 [343 U.S. 579, 639]

Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; 6 another, condemnation of facilities, including temporary use under the power of eminent domain. 7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. 8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. [343 U.S. 579, 640]

This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.

The only defense the President has, Jackson says, is that Congress has no constitutional authority over the subject. In the Steel Seizure Case, that argument was unavailable and so too in this one Congress clearly had authority to regulate electronic surveillance and did with both the Patriot Act and its revisions in FISA.

The key point of Youngstown is that if Congress, acting within its constitutional authority, had prohibited the Executive from seizing the steel mills, he would not have power to disobey them even when acting under his powers as Commander-in-Chief.

Even the three dissenters did not dispute this. They disagreed with the majority about whether Congress had prohibited seizures of property.
None indicated disagreement with the basic principle that the President's powers are circumscribed when he acts directly contrary to constitutionally authorized Congressional command.

Your attempt to dismiss the FISCR's opinion notwithstanding, that opinion clearly says if the President has that inherent authority the "FISA could not encroach on the president's constitutional power." The President has always had this authority, and Congress cannot take it away by statute.

see above. the President does not have authority to make or break the law.

LEAHY: You said -- your answer is that you were just talking about the question of veterans' benefits and all that after this. I would note that the memo you wrote wasn't entitled "Veterans' Benefits." It was entitled "War Powers Problem." I don't think I overstate it.

Now let me as you another question. We spoke about this again this morning, and I had told you when we met -- in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you.

The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote, "complete authority over the conduct of war," close quote. And, quote, "The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war," close quote.

And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture.

LEAHY: In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it.

And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's tone of the reasons why many had voted against his confirmation.

So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority.

The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.

LEAHY: The Supreme Court held that unconstitutional.

ROBERTS: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories.

If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee, memo where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb.

It consists solely of his authority under the constitution, less whatever authority Congress has.

ROBERTS: And then, of course, there's the vast little area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames & Moore case, for example, is a good example of that.

SPECTER: Would you consider -- go ahead.

ROBERTS: I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.

LEAHY: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific.

[Note: FISA specifically addresses the electronic surveillance of UNITED STATES persons--and specifically forbids surveillance in the absence of FISA court approval.]

But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?

ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.

LEAHY: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.

ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers...

LEAHY: You've also said he was one of the justices you admire the most.

ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views.

ROBERTS: I think it's very important...

LEAHY: Are you sending us a message?

ROBERTS: Well, I'm just saying...

(LAUGHTER)

One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized, when he became a member of the Supreme Court, that his job had changed and he was not the president's lawyer, he was not the chief lawyer in the executive branch. He was a justice sitting in review of some of the decisions of the executive.

And he took a different perspective. And that's, again, one reason many admire him, including myself.

LEAHY: The reason I ask -- I mean, I thought the memo was outrageous, and once it became public -- not until it became public, but after it became public, the president disavowed it and said he is opposed to torture, and I commend him for that.

Many wish the administration had taken that position prior to the press finding out about it.

But in the Jackson opinion -- and I just pulled it out here -- he says, "The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled forces. By which it may, to some unknown extent, impinge upon even command functions."

Do you agree that Congress can make rules that may impinge upon the president's command functions?

ROBERTS: Certainly, Senator. And the point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches.

The president is the commander in chief, and that meant something to the founders.

ROBERTS: On the other hand, as you just quoted, Congress has the authority to issue regulations governing the armed forces: another express provision in the Constitution.

Those two can conflict if by making regulations for the armed forces Congress does something that interferes with, in the president's view, his command authority. And in some cases those disputes will be resolved in court, as they were in the Youngstown case.

LEAHY: In his book, "All the Laws But One," Chief Justice Rehnquist, the late chief justice, concluded with this sentence, "The laws will not be silent in time of war but they'll speak with a somewhat different voice."

He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race.

Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history.

Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.

LEAHY: We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11.

I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions.

Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group -- you would hold that to be unconstitutional?

ROBERTS: The internment of a group solely on the basis of their...

LEAHY: Nationality or ethnic or religious group?

ROBERTS: I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.

LEAHY: Let me ask you this: Do you feel that you would be able to interpret the Bill of Rights the same whether we're at wartime or not?

ROBERTS: I do, Senator.

I read the chief's book that you quoted from. And for someone who sits on the court that I sit on now, we famously look back to one of the first cases decided in the D.C. Circuit. It was the Aaron Burr trial. And if anything's a model...

LEAHY: I thought you might mention that.

ROBERTS: Well, it's, sort of, a motto of our court, an opinion that was written out of that, in which the judge explained that it was our obligation to calmly poise the scales of justice in dangerous times as well as calm times -- that's a paraphrase.

But the phrase, "calmly poise the scales of justice" is, if anything, the motto of the court on which I now sit.

And that would be the guiding principle for me, whether I'm back on that court or different one, because some factors may be different, the issues may be different, the demands may be different, but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change.

LEAHY: I hope you feel that way. I know people have spoken of the First Amendment as not there to protect popular speech; that's easy. It's unpopular speech.

Our new Chief Justice of the Supreme Court agrees with kuvasz and disagrees with Ticomaya.

Debra, Thank you for your last post. It should clarify the limits of the president and congress. The last sentence in bold said it best, "... but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change."