When the leader of a country is the only one who can decide what’s legal for him to do, isn’t that the definition of a dictator?
It’s only illegal when the president agrees it’s illegal
It took a day, but the newspapers finally caught up to the bloggers this morning in recognizing the real shocker in former Deputy Attorney General James Comey’s dramatic congressional testimony Tuesday. It’s not just the Grim Reaper tale of Alberto Gonzales and Andy Card double-teaming a critically ill John Ashcroft in his hospital bed. The real issue, as Orin Kerr, Glenn Greenwald, Marty Lederman, The Anonymous Liberal, and Paul Kiel started explaining Wednesday, is much bigger: The story isn’t who picked on a sick guy or even who did or didn’t break laws. The story is who gets to decide what’s legal. And the president’s now-familiar claim, a la Richard Nixon, is that it’s never illegal when he does it.
We now know that in 2004 Gonzales and Andy Card raced to the hospital to try to get a very sick John Ashcroft to certify the legality of the president’s secret NSA surveillance program—going over the head of Comey, the acting attorney general while Ashcroft was ill. When Ashcroft refused to override Comey, the White House reauthorized the program without DoJ certification. The question now is whether in so doing, the White House did something illegal, improper, neither, or both.
The psychodrama in Ashcroft’s hospital room boils down to a rift between the people at Justice (Ashcroft, Comey, and Goldsmith) who believed even the president can cross a line into lawless behavior and those who simply don’t. Glenn Greenwald contends that “the President consciously and deliberately violated the law and committed multiple felonies by eavesdropping on Americans.” The Wall Street Journal insists that no law was broken because the surveillance program put the president above the law. Greenwald believes in an immutable legal architecture that binds even the president. The White House contends the president answers to nobody. There is no midpoint between these two arguments. The president is either above the law or he isn’t.
Realize that it takes a couple of mutant thugs like Bush and Gonzales to make an incompetent like Ashcroft look good!
1,
My thoughts exactly. When Ashcroft becomes a hero for freedom you know the administration is f*cked up.
IMNSHO, what makes America great is that it
iswas a nation of laws that all must abide by, leaders, citizens, soldiers, and police. No American is above the law, and the president is no exception.The president is either above the law or he isn’t.
He isn’t, unless you think being president gives you dictatorial powers. He is a president not a king.
So let me get this straight, the entire nation has completely forgotten about separation of powers and checks and balances, right?
“The White House contends the president answers to nobody.” Now, I know the current administration has no use for the Constitution, but I’m fairly certain it says the Judicial branch of the federal government is setup to do precisely that.
Since Bush and his Administration have been in office, our country has become a Dictatorship.
All parts of our government have failed to do anything to prevent this from happening.
Peace
America. The home of the free and enslaved.
It was the President’s executive order that set up the Justice Department’s review in the first place. So of course the President can override their opinion. Plus it is the Justice Department answers to the President, not the other way around. I think Comey’s a good guy, but he’s missing the big picture. The President and Gonzales had gotten to that point maybe 20 certifications with no problems, then Ashcroft goes to the hospital and the acting AG says no certification. In that situation most reasonable people would think this new assistant is trying to stage a coup.
Yeah, that’s what I don’t understand.
I don’t get how Gonzales can say that the nothing the president does can be considered illegal, and not notice that he’s essentially describing the powers of a dictator.
#8 way to show your take on the Latino ‘mindset.’
I’m not even going to dignify that with a response.
For the record, the Judicial system (which ‘declared’ Bush president) BELONGS to the Republican party, which in turn belongs to the corporate megamachine.
Race/national heritage is not an issue here, only the fact that no one seems to want to remind the administration that they answer to US. (pun intended)
@6
you haven’t been reading closely
The FBI, Ashcroft, and Comey all agreed that they were not going to sign off on the legality of the program, and that was known. What Gonzales and Card were trying to do was to take advantage of Ashcrofts current condition.
And it was completely inappropriate for them to go to Ashcroft in the hospital because he didn’t even have any authority at that point because his powers had been transfered to the acting attorney general.
Whatever happened to the Oath of Office where Bush swore to uphold the laws and Constitution of the United States of America?
12. In the past i.e. Nixon, Clinton, it didnt take much to bring a corrupt president down. Missing minutes on a tape, etc. This stuff is coming at us so fast, almost on a day to day basis, it seems we are being conditioned to accept it. What the hell is it gonna take for this country to wake up?
#12 – I don’t know, but Clinton wasn’t corrupt.
Bill Clinton felt is was legal to get head in the oval office but he found out different. I doubt the president has all the power its his enemys that really pull the strings…
14. Sure he was, not 1/1000th of what we have now, but there is no such thing as just a “little” corruption. And I’m not saying he was a terrible president.
14. Well maybe you dont believe he used his power to sexually harrass and possibly molest women, (and I am not talking about Ms Lewinsky), but I do. Thats an abuse of power, and corruption.
I found argument in the article to be entirely empty. The President does not think that anything he does is legal. Bifurcating the argument into “The president is either above the law or he isn’t.” is to use a false dichotomy.
The problem here is that there are conflicting laws. The Constitution says that President has the authority, during wartime, to protect the country. Further, the President already has the power to conduct surveillance on foreigners both in the US and abroad. The President took it one step further by conducting surveillance on “terrorists” in the US regardless of whether they are citizens. It is not at all clear that he does not have this authority. Does Article II imply that he can or does the FISA law trump? Precedence would imply that he does (see Lincoln). The short answer is that the Courts are going to have to decide. Clearly, Bush’s appeal to the DoJ was to make the decision more palatable to the American public.
Thomas,
But we aren’t really “at war”, we’re in a police action, or whatever they’re calling it this week. We never declared war…. and we’re using NATIONAL Guard troops and equipment. It’s not wartime, so the President can’t have those powers, or so it would seem.
I don’t really think Bush does ANYTHING to make things more palatable to the American Public, aside from lie through his teeth
15, 16, 17 – Well, you’ll need some credible evidence and I don’t see it.
Corruption isn’t making a mistake. Corruption is systematic. Like skimming 5% of profits for a year or awarding lucrative Army base franchises to McDonalds in exchange for a lifetime of free Big Macs.
It isn’t making a mistake when the Republican smear machine tirelessly fails to make anything out of Whitewater then suddenly gets a Christmas gift from John Goodman’s twin sister.
Clinton was flawed, but brilliant. The Republican party was, as they usually are, corrupt beyond belief.
20. It doesnt matter really, we agree Clinton was flawed and brilliant at the same time. Comparing him to the Chimperor is like comparing Lincoln to ……… I cant even think of a comparison, there was no president I can name that is beneath this fool. But abuse of power is a form of corruption, and Clinton did lie under oath, and if he lied about Ms, Lewinski well, lets just say the parade of women who came foward are not to be dismissed so easily.
#11 – Whatever happened to the Oath of Office where Bush swore to uphold the laws and Constitution of the United States of America?
The “president” himself put it best:
“Stop throwing the Constitution in my face. It’s just a goddamned piece of paper!”
– Bush at 2005 Oval Office strategy meeting on renewing the unPatriot Act
[reported http://www.capitolhillblue.com/artman/publish/article_7779.shtml, never denied]
#19, great point. If we are “at war”, then Congress needs to declare war ( it has not) and we need to reinstitue a draft. Furthermore, if we are at war, then Congress should pass strict limits on how much in profits a company like Halliburtion can make. All this went on with WW2.
I find it really amazing that the Bushies had the balls to say that the terrorists were jealous of our freedom, and then have taken one civil liberty after another away from us.
I wish I could be surprised by what ruthless bastards the Bushies are, but I am not. Quite frankly, if the whole NSA wiretapping scheme was not a means to further the power of Bush and the Republican Party, I would be stunned.
Nixon got impeached for doing less than this, and the only reason I can see for the Dems. not doing the same with Bush is that it would mean Cheney would be Prez.
#19, #23
On the contrary, Congress *did* declare war. The 2001 AUMF has been deemed a formal declaration of war (see Hamdi v. Rumsfeld). Face it; we’re “legally” at war.
The interesting aspect to the wiretaps is that FISA actually does address restrictions on wiretaps during wartime. What is not clear is whether this provision is Constitutional since it would run contrary to the President’s Article II powers. Although it is likely that the Supreme Court will find that Congress can limit Presidential powers through legislation even during a time of war, it is not obvious from the way the Constitution reads that this is the case. Certainly, Lincoln took tremendous liberties with habeas corpus and domestic surveillance during the Civil War.
I find it really amazing that the Bushies had the balls to say that the terrorists were jealous of our freedom, and then have taken one civil liberty after another away from us.
So, don’t you see, if we get rid of all those freedoms, we’ll be safe!
/huh?
J/P=?
You know, Thomas, I want to thank you. You forced me to look into this matter and I now know how utterly fucked up the president’s position is. The AUMF or authority of military force was passed by an overwhelming majority in Congress. It authorized the president to use the military to go after those who were behind the 9-11 atttacks. Not too many people against that, right?
The Hamdan case you site involved a suspected terrorist Salim Hamdan. Bush said the AUMF gave him the authority to try Mr. Hamdan in a military court. In such a situation, Mr. Hamdan would not even be allowed to see the evidence against him. The case was argued before the Supreme Court, and the court voted against Bush. So your point that we are “legally” at war is wrong.
The Bushies used the same law as justification for the NSA wiretapping program. Prior to the AUMF, if the NSA wanted to wiretap someone who was possibly conducting international misdeeds, it would go before a speical FISA court and get approval from a FISA judge. FISA stands for foreign intelligence surveillance act. FISA was passed in 1978 after Watergate. This law made it a crime for the government to spy on someone without judicial approval.
However, FISA only applies to foreign matters. For domestic searchs, the 4th amendment applies. Searchs are only permitted if a judge signs a warrant and there is probable cause for the search.
The fly in the ointment is there is no one in place to check that these warantless searchs only apply to international matters. In fact, the funniest violation occured with regards to Paula Abdul, a pop star. You can read all about it here:
http://swiftreport.blogs.com/news/2005/05/paula_abdul_voi.html
Nixon had to resign because he illegaly wiretapped the DNC headquarters at the Watergate building. If the Bushies are listening in on domestic conversations between Paula Abdul and her alleged lover, is anyone naive enough to think they cannot and will not listen in on phone calls between current Democratic party officials? There is nothing stopping them.
Paula Abdul had her 4th amendment rights violated, and all the Bushies could say was, “Oops, sorry, wrong Abdul”. This incident alone is grounds for impeachment. Didn’t Bush take an oath to uphold the constitution? Guess the AUMF changed that too.
#27
The problem is that it is not necessarily clear from a legal standpoint that Bush *didn’t* uphold the Constitution. That is the core issue. Which power trumps: Article II and wartime or FISA? Many legal scholars claim the later; the President of course claims the former.
The more you read about history the more you realize just how far Lincoln went to keep the Union intact and what an awful precedent it created. He spied on Americans with no reservation and threw “enemy combatants” in jail with no trial or habeas corpus. Remember, according to the North, the South never legally seceded. They were simply Americans in rebellion. Thus, even claiming that they were the soldiers of another country doesn’t work. That was seen at the time (in the North of course) as acceptable.
So, flash forward to today. The President has always had the power to spy on foreigners in this country and abroad without a warrant. Now that we are at war and the enemies in that war are from many nations including our own, does the President have the authority to spy on suspected enemies in the US even if they are citizens? Honestly, I don’t know. I do know that the issue not nearly as cut and dry as many would have us believe.
#28, You make very good points about Lincoln. What happened 150 years ago though can not be an excuse for what is happening today. It is quite probable that many things that Lincoln and his administration did during the course of the war were beyond what the Constitution allowed.
I don’t disagree with you, just adding a thought.
Man oh man was Shakespeare write about shooting the lawyers. I have no beef with you Thomas, You have brilliantly shown the presiden’ts point of view, but if explained to the average American, it ranks up there with I did not have sex with that woman and that depends on what your defintion of is is.
Of course, the war on teror will never be over, so we may as well appoint the president a dictator and get it over with. One wonders if the 4th Amendment is so easily bypassed why not bypass the 22nd amendment and allow Bush to run again? Heck, why bother even having elections? Bush could argue that an election could be a violation of national security and stop it.
We have been down this road before. Nixon used Vietnam as an excuse for Watergate. Here is an excerpt from his article with David Frost:
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there’s no subtle way to say that there was murder of a dissenter in this country because I don’t know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president’s judgment?
NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate.
Of course, Bush no longer has to come up before the electorate. Using this wartime and national security excuse, Nixon felt he had the legal right to commit theft, wiretaps, and even murder. And Bush is using Nixonian logic to justify his wiretaps and tourture, er sorry, enhanced interrogation techniques. This is pretty scary stuff.