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Author Topic: The Democrats Are Cowards
Godot
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When Russ Feingold proposed censure for President Bush over the NSA spying thing and Frist told the Democrats he was ready to vote on it by the end of the day, the Dem leadership scurried for cover. Reid claimed they didn't want to limit debate, but I don't know. Maybe, I'm just too cynical, always prepared to automatically believe the worst about politicians.

I found it very instructive when Arlen Specter said, "The president may be wrong, but he has acted in good faith." I want to believe that Bush DID act in good faith, but when he lies repeatedly about the issue, I smell something bad. And I really don't care if his heart is pure. He broke the law. Nuff said.

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DaveS
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I agree. BTW, if Bush acted in good faith, then clearly Clinton was passionate about what he did. Same standard of accountability should apply.
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TomDavidson
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quote:
When Russ Feingold proposed censure for President Bush over the NSA spying thing and Frist told the Democrats he was ready to vote on it by the end of the day, the Dem leadership scurried for cover.
That's not QUITE accurate. In reality, both parties are trying to time this one to their best advantage.
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Kent
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No new tale to tell, no new tale to tell, no new tale to tell aaaahhhhhhhhhhhhhhhh . . .
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DaveS
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Bush did a bad thing here, but it pales in relation to the unbelievably bad thing of getting us into the war. Every Dem, GOPer or agnostic who went along with it is tainted.

The only "timing" that works for the Dems is after a successful mid-term election, and even then because of the taint, I don't think they'll push it. The GOPers would look like cannibals if they acted on it (but that's too much to hope for).

I sound partisan, but I have only slightly higher expectations of the Dems at the moment. The reason is that by taking an opposing position from Bush on each issue of importance, like the loyal opposition that they are, they would almost always be doing a better thing.

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Godot
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DaveS,

I agree that the war lies are worse, but we cannot unwind that particular thread, although an investigation of the lead-up is certainly warranted.

What the Dems COULD do is stand united with Feingold to try and draw renewed attention to Bush's law-breaking in hopes of forcing the Reps to open an investigation.

It seems doubtful that the Dems will gain enough seats in 2006 to be able to force an investigation.

In any case, Bush will probably get away with all of it unless some Reps of conscience come forward and do the right thing (what are the odds?)

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DaveS
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I buy lottery tickets from time to time, so I'm a hopelessly foolish optimist. Maybe a quorum will do the right thing, after all.

BTW, if you're not busy, there's an unopposed GOPer running for the House in Grand Rapids, MI. You wouldn't have to move there unless you won the election [Smile] . On the other hand, that may be why nobody has signed up [Frown] .

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Godot
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Joining the House (or Senate for that matter) and watching the Republicans stymie responsibility, accountability, transparency, and justice would not be my idea of fun.
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flydye45
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You know, that kind of slurring of the motives of group of 300 odd persons of different temper, culture, and upbringing is probably one of the main reasons that partisanship has gotten so poisonous.
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Pete at Home
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quote:
Originally posted by Godot:
I want to believe that Bush DID act in good faith, but when he lies repeatedly about the issue, I smell something bad.

I must have missed this. At what point has it been shown that Bush lied repeatedly about what issue? If Reid actually had proof of what you speak of, in hand, you think he'd have wanted to delay? Is it really cowardice to refuse to accuse a political opponent of a crime, based on uncertain or incomplete evidence?


quote:
And I really don't care if his heart is pure. He broke the law. Nuff said.
Even if he broke the law, Constitution has more to say. Article I Section 3.
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Pete at Home
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We've been successfully invaded. Enemies on US soil have killed Americans, and more of them, already on US soil, are likely to kill again.

http://news.bbc.co.uk/2/hi/americas/4534488.stm

quote:
Some officials said the [spy] programme had helped to uncover several terror plots, including one by an Ohio lorry driver who was jailed in 2003 for supporting al-Qaeda and targeting a New York bridge for sabotage.
Sounds like national defense to me. We're talking about a few hundred people spied on. This is illegal in the US, but there are exceptions for the illegality. "Necessity," "self-defense," and "defense of others" are justifications for all crimes, unless Congress specifically writes into the law that such justifications are not available. Since there's an arguable justification, the only way that Congress could honestly impeach or censure Bush for "illegal" spying, would be for Congress to assert that saving the lives of dozens of people is not worth spying on a few hundred people.

If it's justified, it's *legal.*

Can you show a way that they could have feasibly stopped those terrorist attacks in question, without the espionage?

Supreme Court has held that when we're at war and enemies are on US soil, that the president is BOUND by his constitutional oath to take necessary action without waiting for Congressional approval. And that ruling has stood for 200 years. As I understand, that's is the law of our land. If tapping phones were the only way to stop an attack on US soil, then the law requires the president to tap the phones. Now if tapping the phones were not necessary to protect the country, then the act would be illegal.

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TomDavidson
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Out of interest, Pete, what would NOT be justified by that logic, provided one does not give one's political opponents the opportunity to argue that one's actions were NOT necessary?
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Adam Masterman
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quote:
We've been successfully invaded. Enemies on US soil have killed Americans, and more of them, already on US soil, are likely to kill again.
Sorry, but this is false. We have by no means been successfully invaded, and we are waging "war" in the United States only in a rhetorical sense. By your rationale, these powers were free for the taking for any president since we launched the "war on drugs". After all, congress authorized the use of force in Panama, in the context of the larger war on drugs, right? And since that war is still being fought today, here in the United States, the president can do anything and everything he deems necessary to presecute that war.

Forgive me for saying that this particular rationale strikes me as Putin-esque.

Adam

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Storm Saxon
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I totally agree with Adam.

Also, there is no proof that the programme has done what the administration has said it has done.

[ March 15, 2006, 11:07 AM: Message edited by: Storm Saxon ]

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Godot
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quote:
Originally posted by flydye45:
You know, that kind of slurring of the motives of group of 300 odd persons of different temper, culture, and upbringing is probably one of the main reasons that partisanship has gotten so poisonous.

"Partisanship" being the favoring of one group or opinion over another? True. I'm an independent, but I almost always vote Rep in local (CA)elections because the Dems in my state are largely wrong on most issues and I want more competition in the state.

At the federal level, I believed that the Dems and Reps were equally reprehensible and culpable in setting up and maintaining the C.U.S. (Corporatocracy of the United States) and being allied with moneyed interests against the best interests of the citizenry. I used to disagree with the Dems as much as I did with the Reps, but that has changed. President Bush and the current Rep leadership have disabused that view. The depth of illegality and unethical behavior by the administration and some of its toadying Senate/House members have driven me to acknowledge that the Dems are preferable.

You're right to call me out on my generic reference to "Republicans", but then not all Republicans are responsible for stymying the accountability, etc. which is who I referred to.

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Godot
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quote:
Originally posted by Pete at Home:
I must have missed this. At what point has it been shown that Bush lied repeatedly about what issue?

He repeatedly said that wiretaps require warrants and that nothing changed under his administration - lie. He said that FISA was not responsive enough so they could act quickly to catch bad people - lie.

quote:
Even if he broke the law, Constitution has more to say. Article I Section 3.
Even IF he broke the law? You won't even acknowledge that he broke the law. I think we're done here.
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Pete at Home
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quote:
Sorry, but this is false. We have by no means been successfully invaded, and we are waging "war" in the United States only in a rhetorical sense.
I don't recall where the constitution give Adam Masterman the exclusive power to declare war. My understanding is that declaring war was an act reserved to Congress, and Congress has exercised that right.


quote:
Originally posted by Godot:
[QB]
quote:
Originally posted by Pete at Home:
I must have missed this. At what point has it been shown that Bush lied repeatedly about what issue?

He repeatedly said that wiretaps require warrants and that nothing changed under his administration - lie. He said that FISA was not responsive enough so they could act quickly to catch bad people - lie.
I've been swamped in law school and in life, and my question wasn't rhetorical. Thanks for giving me tiny bits of identifying information to help me search and catch up on this.

quote:
Even if he broke the law, Constitution has more to say. Article I Section 3.
------
Even IF he broke the law? You won't even acknowledge that he broke the law.

I do try to avoid acknowledging that which I do not know. I know a little about the constitution and the law; I don't know many of the facts of this case. I read about 5 BBC articles last night trying to catch up, and none of the articles contained the incidents you mentioned.

In my understanding of separation of Powers, if the President lied to Congress about issues such as you described, that would make it much harder for him to make a credible necessity defense. That's one answer to Tom's question: Lying to Congress. As I understand, the necessity defense only applies to government agents infringing on private rights. I can't recall of "necessity" ever justifying one branch usurping on another branch's lawful powers. While the President has sweeping discretion as to how to protect the country in a crisis, Congress has absolute power to review the president's actions, and if necessary, to curb Presidential power. Three examples

1. Most dramatically Congress can impeach, at any time.

2. Congress also has exclusive power of the purse. A second answer to Tom's question: if the President so much as conducted a bake sale to fund a war, without Congressional approval, that would be an unconstitutional encroachment on the Constitutional power of the purse, and no necessity defense would apply.

3. Congress actually has power to make war WITHOUT involving the President, although the power to use letters of Marque and Reprisal haven't been used since the war of 1812.

In this light, for the president to lie to Congress about how he's conducting a war, would seriously encroach on Congress' constitutional war powers, and IMO could not be legally justified.

I realize that's not a satisfactory answer to Tom's question, but Tom seems to have structured his multi-part question in a way that prevents any sort of intelligent answering. In Tom's hypothetical nightmare scenario, the president manages prevent his opponents from arguing that his actions weren't necessary. That's like arguing that the jury system must not exist, since if you kidnap their family members, they'll tend to rule in your favor. You can create a hypo that would paralyze any system. But fact is that the Constitution gives Congress the exclusive right to impeach. If the President stymies Congress, then there is no lawful remedy for presidential abuses.

If this was a cop on trial for shooting a suspect, then a court would decide whether the normally unlawful action was justified under the circumstance. But we're talking about the President here, and the Constitution gives Congress the exclusive power to decide whether necessity under the circumstances justified the president's actions are justified.

[ March 15, 2006, 12:22 PM: Message edited by: Pete at Home ]

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Everard
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"My understanding is that declaring war was an act reserved to Congress, and Congress has exercised that right."

I'm sorry, can you point me to the congressional act declaring war? I can only seem to find an act authorizing the use of force, which is a different kettle of beans.

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Godot
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quote:
Originally posted by Pete at Home:
Supreme Court has held that when we're at war and enemies are on US soil, that the president is BOUND by his constitutional oath to take necessary action without waiting for Congressional approval. And that ruling has stood for 200 years.

Is that why Bush did nothing to prevent 9-11 even after ex-President Clinton told him that the biggest national security threat was Bin and Al Qaeda and Richard Clarke told Condi Rice the same thing.

And after the PDB to Bush on August 6th titled "Bin Laden Determined to Strike in the US" that noted, "patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks" what did he do? Did he immediately mobilize all the intelligence services to focus on this group and this issue the way his predecessor did when confronted with terrorism-related PDBs? No, he didn't. He did nothing.

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javelin
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Wow, Godot - I get the feeling you haven't read a single thread on these topics that have been posted ad neauseum on this board.
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Daruma28
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quote:
And after the PDB to Bush on August 6th titled "Bin Laden Determined to Strike in the US" that noted, "patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks" what did he do? Did he immediately mobilize all the intelligence services to focus on this group and this issue the way his predecessor did when confronted with terrorism-related PDBs?
No, I get the feeling Godot has been immersed in DailyKos and DemocraticUnderground.

The way his predecessor did?

Good god man, Clinton did JACK about terrorists. After every attack on US forces under his administration, he got up on the podium, emoted and bit his lip and told us how he felt our pain, and that the perpetrators would be hunted down and brought to justice. And that's ALL he did. All talk, no walk.

And now Bush is "doing something" which is basically authorizing surveillance of communications between the middle east and contacts here in the US, and yet here you are Godot, swallowing this tripe about "domestic" spying.

When Ali Bin Mohammed Akbar calls from his Satellite phone from the hills of Pakistan to a Zacharias Moussaoui or Jose Padilla here in New York, I hope to GOD our intelligence agencies are listening in to that call. You can call that "domestic spying" all you want, but you are simply a Micheal Moore kool aid drinker ("There is no terrorist threat") if you think the Governmnet is "domestic spying" to "take away our rights and grab power."

When Bush has intelligence agencies using the power to "spy" on an American from Detroit calling an American in Texas for whatever reason, than hey, I'm right there with all the rest of you naysayers screaming about proper warrant procedures and ensuring American constitutional rights are upheld. But right now, it just looks like all the Bush-obsessed haters are bent out of shape with communications between the US and suspect countries. How in the hell does anyone but a partisan hack or a biased media report call that "domestic spying" is beyond me.

How about you try and make a phone call to Kabul from the US, and when the phone bill comes, you call up the phone company and tell them that since you were in the US, it's a "domestic" call so they must not charge you the international call rate?

Yeah, right.

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Adam Masterman
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quote:
I don't recall where the constitution give Adam Masterman the exclusive power to declare war.
Nor do I, for that matter.

quote:
My understanding is that declaring war was an act reserved to Congress,
True.

quote:
and Congress has exercised that right.
And here is where you are wrong. Congress has not declared war on terrorism. There has, in fact, been no declaration of war at all. What did happen is that Congress authorized the use of military force, first for Afghanistan, then for Iraq. In each case, it named specific reasons for doing so. Here, read the Iraq resolution:

www.c-span.org/resources/pdf/hjres114.pdf

However, even the President isn't claiming that this eavesdropping is part of those specific campaigns. Instead, he calls it part of the war on terror, which, I will say again, without a legal declaration, its only a war in the rhetorical sense. Just like the war on drugs.

So it seems that it is Pete at Home who is pre-empting Congress's power to declare war. Someone call [homeland] security. [Big Grin]

Adam

p.s.
anticipating the argument that authorization of force is the same as a declaration or war; here is the original war powers resoultion of 1973:

http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml

read section 2c and you will see that the two are clearly different things.

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Pete at Home
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Apologies for adding substantially to my post above. I started to edit, and then forgot I was editing and went at it like I was writing a new post.


quote:
Originally posted by Adam Masterman:
quote:
I don't recall where the constitution give Adam Masterman the exclusive power to declare war.
Nor do I, for that matter.

quote:
My understanding is that declaring war was an act reserved to Congress,
True.

quote:
and Congress has exercised that right.
And here is where you are wrong. Congress has not declared war on terrorism. There has, in fact, been no declaration of war at all. What did happen is that Congress authorized the use of military force, first for Afghanistan, then for Iraq.

The constitution does not give Congress power to "authorize military force," except as a declaration of war. The president (and a good number in Congress) have reasonably interpreted the authorization of force as a declaration of war. These issues have in the past come before the Supreme Court, and the Court has correctly declined to involve itself, since the Constitution allocates war powers carefully between the president and Congress, leaving no role for the courts.


quote:
In each case, it named specific reasons for doing so. Here, read the Iraq resolution:

[URL=http://www.c-span.org/resources/pdf/hjres114.pdf]www.c-span.org/resources/pdf/hjres114.pdf

However, even the President isn't claiming that this eavesdropping is part of those specific campaigns.

Obviously not, since he doesn't have to. Again, the Supreme Court established in the Prize cases that the President is not only authorized but BOUND to respond with necessary means when the US is invaded, WITHOUT WAITING FOR CONGRESSIONAL AUTHORIZATION. The words invade and war were also problematic in that case, since it was the civil war, and the feds were pretending for political reasons that it wasn't a war, not wanting to give the confederacy legitimacy, but wanting war powers nonetheless.


quote:
Instead, he calls it part of the war on terror, which, I will say again, without a legal declaration, its only a war in the rhetorical sense. Just like the war on drugs.
You can say that all you want, but until you show me where Congress says that


quote:
So it seems that it is Pete at Home who is pre-empting Congress's power to declare war. Someone call [homeland] security. [Big Grin]
No. If you think that I and the President have misunderstood Congress' statements about this conflict, then call your Congress representative and senator. They have plenty of time to clarify what they meant. Let them tell the American people that what happened on 9-11 wasn't a real war.

Just as the President is accountable to Congress, Congress is accountable to the people. Congress can't eat its cake and have it too -- give the president limited authorization to act, while pretending to the people that they are giving the President full power to act.

If Congress wants to micromanage this war with AQ, then they should use the constitutional means they have to do make war without the President: letters of marque and capture rules.

quote:
anticipating the argument that authorization of force is the same as a declaration or war; here is the original war powers resoultion of 1973:
http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml

read section 2c and you will see that the two are clearly different things.

Thank you for the link, but I am familliar with the war powers resolution of 1973. Here's a link to the US Constitution. http://www.law.cornell.edu/constitution/constitution.articlei.html

Every President since 1973, including Clinton and Carter, has taken the position that the resolution was unconstitutional. Congress takes the position that it's constitutional. The Supreme Court takes the position that it's none of the Supreme Court's business if the War Powers Resolution is constitutional.

My opinion is that *ultimately* it's Congress' responsibility to determine if its' act is constitutional, but that it can only make such a determination by impeaching or refusing to impeach a president that doesn't comply with the resolution.

Since action to censure a president isn't set out in the Constitution (Censure was only used on one President, Andrew Jackson), I'd say that censure would merely convey Congress' opinion about the legality or justification of an action.

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Adam Masterman
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quote:
The constitution does not give Congress power to "authorize military force," except as a declaration of war. The president (and a good number in Congress) have reasonably interpreted the authorization of force as a declaration of war.

This reasoning doesn't satisfy the concern here for two reasons. I'll start with the legalistic one:

The reference to the War Powers Res. is IN the Iraq resolution. Specifically, in section 3c1, it says:

quote:
1) SPECIFICSTATUTORYAUTHORIZATION.—Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
As you can see, the congress was using the apparatus of the War Powers res. to authorize force in Iraq. If the president held your position; that the WPR was unconstitutional (though I should point out that his opinion on somethings constitutionality means bubkus), then he would be concluding that he was never properly authorized to use force in Iraq. Indeed, in operating under the Iraq resolution, he was in fact exercising force under the auspices of the War Powers Res. To then turn around and say that it doesn't apply (for whatever reason) is contradictory.

But anyway, lets say for arguments sake that I were to concede that rationale. The issue of legality would still exist, because whether congress authorized or declared war, they did so against the Taliban and the Iraqi regime, not against global terrorism. The war on terror remains one that has never been established by congress in any way, interpretable or otherwise. When you say:

quote:
Instead, he calls it part of the war on terror, which, I will say again, without a legal declaration, its only a war in the rhetorical sense. Just like the war on drugs.
------------------------------------------------------------------------
You can say that all you want, but until you show me where Congress says that

I'm left scratching my head. Congress has to say that it didn't declare war? Doesn't that usually work the other way? Or are you saying that, in authorizing the use of force in Iraq or Afghanistan (or both), congress declared war on terrorism? And if that is the case, how did they not also declare war on drugs by authorizing force in Panama?

Adam

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Godot
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quote:
Originally posted by javelin:
Wow, Godot - I get the feeling you haven't read a single thread on these topics that have been posted ad neauseum on this board.

Jav,

You are quite right.

I have two jobs, two kids, a wife and a house with more needs than any four of my mistresses put together [Smile] and I rarely have the time or desire to keep up everything that goes on here.

I can't even keep track of the posts I START much less the general hoo-rah. For that, I apologize.

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Dagonee
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It's interesting that you jump to the conclusion that failure of the Democrats to support Feingold's resolution is motivated by cowardice, not disagreement with him.

Do you have any evidence that this is the case?

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javelin
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quote:
Originally posted by Godot:
quote:
Originally posted by javelin:
Wow, Godot - I get the feeling you haven't read a single thread on these topics that have been posted ad neauseum on this board.

Jav,

You are quite right.

I have two jobs, two kids, a wife and a house with more needs than any four of my mistresses put together [Smile] and I rarely have the time or desire to keep up everything that goes on here.

I can't even keep track of the posts I START much less the general hoo-rah. For that, I apologize.

No need to apologize - I'm hoping (and thinking I failed in this) that my original statement didn't look like an insult. I understand not reading through everything posted on this forum - I don't get how I'm able to keep up, to be honest. I was just shocked because we've discussed these very issues, and I'm SO much more ambivelant and unsure about the various topics you've brought up as slam dunks that I was just, well, surprised that someone reading these forums would assert them as givens.

Anyway, that probably didn't come out right either. Thank you for responding in such a positive manner, instead of taking offense, which probably would have been fair.

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Pete at Home
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quote:
Originally posted by Adam Masterman:
I'm left scratching my head. Congress has to say that it didn't declare war? Doesn't that usually work the other way? [/QB]

It's supposed to. But here, Congress has made an ambiguous declaration. The President's made clear that he believes that Congress has given him a declaration of war. If that's not what Congress meant, you don't think they bear any responsibility to clarify the "misunderstanding?"

So you want Congress to get to do what it did in Viet Nam -- wring its hands and cry about the illegal war that it continued to fund year after year? Give a wink and nod to the president to go ahead, knowing that he'll take the heat for the war if it turns unpopular?

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Pete at Home
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quote:
As you can see, the congress was using the apparatus of the War Powers res. to authorize force in Iraq.
What "apparatus?" Those are words on paper. No court has upheld them. To my knowledge, no constitutional provision makes them legal. There are some neat ideas there; but if they want them to actually serve as law, they will have to amend the constitution, OR, they will have to show through an impeachment controversy that they will enforce it.

Those are the only ways I know that Congress can turn this into anything like law: impeach, or amend.


quote:
As you can see, the congress was using the apparatus of the War Powers res. to authorize force in Iraq. If the president held your position; that the WPR was unconstitutional
Sorry if you missed this: EVERY president since 1973 has taken the position that the war powers act is unconstitutional. You have yet to offer any clause of the constitution to support your assumption that the War Powers act is constitutional. Unless the constitution allows an act of Congress, that act is unconstitutional.


quote:
(though I should point out that his opinion on somethings constitutionality means bubkus)
Rubbish. The president's the only one required by the constitution to swear an oath to enforce the constitution. Doesn't say someone else's interpretation of the constitution.

quote:
then he would be concluding that he was never properly authorized to use force in Iraq.
No. He could conclude that authorize to use force was synonymous with a declaration of war. And since Congress failed to say that's not what it meant, that seems like an increasingly reasonable conclusion.

quote:
Indeed, in operating under the Iraq resolution, he was in fact exercising force under the auspices of the War Powers Res. To then turn around and say that it doesn't apply (for whatever reason) is contradictory.
I defy you to show me any place where any US president has stated that they are operating UNDER the war powers act. Every president has always been extremely careful about how they word documents when they are playing along with the war powers act. If you're honestly interested, I'll dig out my notes from last year and show you a few examples. It's basically lawspeak for "I'm playing along here to keep you happy but I do not and will not acknowledge that this is law."

I'd be curious if Congress has been that consistent in how their various acts and resolutions speak about this war.

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Adam Masterman
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quote:
Those are the only ways I know that Congress can turn this into anything like law: impeach, or amend.
You are correct as far as this goes, but it needn't contradict my point. Legalistically, congress has valid grounds for impeachment here, because it clearly spelled out authorization in terms of the WPR, and Bush has exceeded them, which was my point. Your argument seems to go more to the de facto point that, if congress does not enforce its constitutional perogative, then the president effectively can do whatever he wants, which is true. In any case, its all beside the main point that this, if this is treated as a declaration of war, its still a declaration of war against Iraq, not global terrorism. Therefore, your justification of the eavesdropping program as part of CIC powers does not apply.

Adam

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Pete at Home
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quote:
Originally posted by Adam Masterman:
quote:
Those are the only ways I know that Congress can turn this into anything like law: impeach, or amend.
You are correct as far as this goes, but it needn't contradict my point.
Perhaps, but I saw it as a critically important qualification.

quote:
Legalistically, congress has valid grounds for impeachment here, because it clearly spelled out authorization in terms of the WPR, and Bush has exceeded them, which was my point.
Here I think I do contradict you. Whether or not Congress has valid grounds for impeachment is up to Congress. The Congressional power to impeach is absolute and unchecked.

We have no legal ground to answer that question with a certainty, either way. I don't just mean legal authority -- I mean this is completely untested law. In this area of war powers, we know as little about what is constitutional and what is not constitutional as we knew before Marbury v. Madison. The Senate has never convicted a sitting president, and no president has even been impeached over the war powers question, and the Supreme Court has no power to rule here. Whether or not the War Powers act is constitutional, ergo whether Bush violated the law, is a matter yet to be determined, even if we assume that all the facts are in.


quote:
Your argument seems to go more to the de facto point that, if congress does not enforce its constitutional perogative, then the president effectively can do whatever he wants, which is true.
That's how this area of law *seemed* to me too, at first, until a very nice judge from the 9th Circuit court explained it to me and pointed out relevant cases and documents. Our initial impressions here are both mistaken. In fact, the president is politically obligated to play along with the War Powers act even if it was unconstitutional, because he needs Congress' support, and for other pragmatic factors that I only begin to understand. Until the previous sentence, I was talking strictly about constitutional law. Not realpolitic.

quote:
In any case, its all beside the main point that this, if this is treated as a declaration of war, its still a declaration of war against Iraq, not global terrorism.
Agreed; a declaration against Iraq would be irrelevant here. I assumed you were referring to the earlier post 9/11 "Authorization."

quote:
Therefore, your justification of the eavesdropping program as part of CIC powers does not apply.
Except the Supreme Court said in the Prize Cases that if the US is invaded, that the president is bound to respond as necessary without waiting for Congressional approval. That may or may not apply here, depending on the timing and case facts.

One way to understand war powers is that the courts have no direct role; the president has powers that are broad, sweeping, but ultimately checked; and Congress has powers that are narrow, specific, and COMPLETELY UNCHECKED, except through periodic elections. After running certain keyword searches on the congressional record, I'm firmly persuaded that Congress has absolutely no clue how much power the constitution gives them with regard to foreign affairs and war powers. The war powers are extremely narrow, but the reach and power is essentially unlimited. Suspend the writ of Habeas Corpus is scary stuff, but you'd poop a brick if you saw some of the laws that the Supreme Court has upheld under the "rules on captures" clause!!!

[ March 15, 2006, 10:31 PM: Message edited by: Pete at Home ]

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flydye45
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I am quite smitten by this discussion. On the one hand Pete raises excellent points. Here are some questions. Has any President signed the WPA? IIRC, such a signature is necessary to create a law. How does one test this "act" for it's legality, short of impeachment, particularly if the Supremes decline?

I believe the Founders made the law that way just because that was just how it was done back then. But in this age of nuclear subs, blitzkreigs, ICBM's et at, does the president have time to invite the President pro temp and Speaker over for tea for consultation? I ask this, not just because I support this and other uses of force, but as a matter of practicality.

However, how does one wage war on "terrorism"? Should we give Bush a blank check to rewrite what is acceptable in our society to defend us. I am willing to give him much more latitude then Adam, for example, but he is dancing very close to the line. I can tolerate (but not accept, See South Park "Death Camp of Tolerance) the NSA thing. That's about as far as I'm going.

Unlike a Iraqi campaign, there is no definable endgame with a war on terrorism. Thus, Congress should be monitoring. This having it both ways by some Democrats is plainly bogus, however.

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Pete at Home
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Nod. My argument that Congress has ultimate responsiblity to enforce, and that Congress is trying to have it both ways by crying foul but not impeaching, is NOT the conservative argument! I'm pulling that from the late John Hart Ely, "War and Responsibility." Anyone familiar with war powers scholarship knows that Ely is the anti-war extreme of the argument. (Yikes -- I still have it -- I need to return that book to my boss).

I also agree with Ely about the seriousness of lying to Congress with regard to war actions, and also that where national security isn't an issue, that the people have a right to know about the war, because voters play a part in the process by making Congress do its duty. Since the constitution gives us power to directly appoint representatives through our vote, I'd infer that the president should report accurately to us as well, so long as issues of national security don't prevent it. Otherwise we cannot fulfil our power to vote. The right to vote is meaningless without accurate information about what our representatives are doing.

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Pete at Home
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No president signed the War Powers Resolution. (I think the War Powers ACT is a different monster entirely, although it has morphed into all sorts of different laws since its 1917 drafting, IIRC).

IIRC Nixon vetoed the WPR, but Congress gave him the 2/3 override. The Supreme Court tossed out the legislative veto provisions based on Chadha, but as for other provisions, ruled that it had no power to rule on other provisions.

Every president has taken the position that the WPR is unconstitutional. While presidents have written over 100 requests for authorizations of force, they've carefully used the term "consistent with the War Powers Resolution" instead of "pursuant to the War Powers Resolution," to emphasize the Presidential position that the Resolution is unconstitutional.

Early Constitution drafts originally gave Congress the broad power to "make war." The framers narrowed this to "declare war." The Prize Cases makes clear that the narrow power to declare war does not limit the president's power to make war in national defense. The Supreme Court said that the civil war was a war before Congress declared it, and that the President had duty to take care of it even before Congress "christened it with a name."

Sounds a little reductive for a constitutional power, but that is the word of the Supreme Court on the matter, and the settled law of the land.

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Pete at Home
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One last point, all my own.

One might argue that no president has been convicted (and only two impeached) in history, because it's an incredibly difficult thing to do, politically and practically, and that impeachment is especially infeasible at a time of war where it could even screw up national security, foreign relations, etc.

My reply is, if Congress believes that the President has broken such an important law that it must act in order to affirm the law, there's a fairly painless way to do this at least in terms of national security and foreign relations.

Impeach and convict the president during his last days in office.

Historians would have a good laugh at the VP who becomes president for 35 minutes. But there'd be no danger to the workings of government.

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Brian
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Why did the SC refuse the case?
Everything they sit on is technically something they have no power over, since they are only there to judge constitutionality. I would have thought this was right up there alley.

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Dagonee
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quote:
since they are only there to judge constitutionality.
This isn't really true. SCOTUS does far more statutory interpretation than constitutional interpretation, although the percentage of the latter has risen as their total caseload has dropped.

quote:
if this is treated as a declaration of war, its still a declaration of war against Iraq, not global terrorism.
As Pete pointed out, the post 9/11 resolution, is the one being used to justify the wiretapping. It is NOT limited to any specific country:

http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR:

quote:
Begun and held at the City of Washington on Wednesday,

the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Sure sounds like it was aimed at any global terrorism that intends to attack us to me.
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Pete at Home
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quote:
Originally posted by Brian:
Why did the SC refuse the case?
Everything they sit on is technically something they have no power over, since they are only there to judge constitutionality. I would have thought this was right up there alley.

Agreed with what Dag said about their primary role being interpretation of federal law.

They refused the case because it is "nonjudiciable," meaning that the constitution doesn't give the court the power to interpret it.

Issues that involve war, impeachments, and foreign affairs, or some other area where power is exclusively given to one or both other branches, tend to be nonjusticiable.

For example, the constitution says that the president can be impeached for high crimes and misdemeanors. What are high crimes and misdemeanors? Don't ask the Supreme Court. Since that's a non-statutory power reserved to Congress, the court has no power to interpret it. If Congress has the votes to say that yawning in public is a high crime worthy of impeachment, then so it is.

Similarly, the constitution prohibits applying a religious test of office. But if some congressman sues because he's been passed over for speaker of the house because of his religion, well, the court probably won't rule on that, because that would tred on a power reserved exclusively to Congress.

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Pete at Home
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quote:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
That clearly applies to persons within the US as well as outside the US, since sleeper agents were contemplated. But does anyone know if surveilance is considered a form of "force"?

That's the only real problem I can see in the application here.

I haven't seen anyone argue that (1) the president did this for some reason other than to prevent future acts of international terrorism, or (2) that the president was using surveillance against persons whom he did not believe to be aiding any terrorist or persons.

Have I missed anything here?

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Dagonee
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quote:
But does anyone know if surveilance is considered a form of "force"?
Gathering intel is an absolutely essential part of use of military force.
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