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View Diary: Droning Americans on US Soil: Why Holder's "No" is Not Reassuring (156 comments)

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  •  Well (2+ / 0-)
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    Spit, aliasalias

    First, I'd argue that the AUMF itself is at least partly unconstitutional and in need of review, not just from the executive in the form of (unfortunately secret) OLC legal findings and memos, but by congress and the courts. So even if it does authorize such actions, that doesn't make it constitutional.

    Second, to the extent that the executive is simply following the presumptively constitutional AUMF, there's no way to know that if these findings and memos are kept secret, even from congress and the courts. Otherwise, we're being told to believe that legal justifications that we're not allowed to see pass constitutional muster, based on a law that itself is likely not fully constitutional.

    Third, the reasons given to justify keeping these documents secret, not just from us but also congress and the courts, along with plaintiffs in civil suits by those claiming to have been harmed by actions taken pursuant to them, are themselves quite dubious, constitutionally speaking.

    And finally, if the executive is claiming that the AUMF not only justifies these actions, but requires them, that doesn't even pass the laugh test given the many instances in which it has egregiously and obviously failed to take actions in other areas that existing law if not the constitution requires that it do, such as prosecute financial and war criminals. You can't claim discretion where you want discretion but exclude it where it's convenient to exclude it. That would be laughed out of a first year law or poly sci class.

    Ultimately, I think they're abusing power, because they can, be it because they genuinely believe it's for a good cause and something they have no other way of doing, or because they just like the power and are too lazy to find legitimate ways of obtaining it, or afraid of the political consequences of doing so.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Mar 08, 2013 at 09:03:34 AM PST

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    •  I don't agree with the secrecy jusitifications (0+ / 0-)

      at least relative to the House and Senate Select Intelligence Committees, but i'm not quite sure of the status of their access, as opposed to classifications generally.  

      Obviously, if you take the position that more is unconstitutional, less is authorized.  But, there are different ways an action can be unconstitutional (not authorized by statute and not within inherent powers), and a statute can be unconstitutional (not authorized by article I or authorized by article I but violating a protected liberty interest, and even then, there are distinctions between whether the statute is unconstitutional on its face or as applied).  How any of this is unconstitutional requires greater articulation, because only that can tell you whether and how it's fixable.  If everyone agrees at least some aspects need fixing, the important question is whether those fixes are still unconstitutional.  Whether they make it constitutional for the first time or whether it was never unconstitutional to begin with is ancillary.

      I'm not sure about point 4, either the premise or the conclusion. I could be mistaken, but I don't think the administration has claimed any particular action was "mandated."  What's more different statutes create different levels of discretion, and remedial statutes are inherently highly fact-specific in their application and thus even more discretionary.  

      Difficult, difficult, lemon difficult.

      by Loge on Fri Mar 08, 2013 at 09:30:26 AM PST

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