Skip to main content

View Diary: Once again, nobody for Attorney General. (180 comments)

Comment Preferences

  •  As noted, the core Constitutional breakdown (4+ / 0-)

    From this piece, as noted:

    The Constitution, under the same Article II that [is cited]as possible authority for the idea that [FISA or any other law] can somehow be "trumped" at the Executive’s unilateral discretion,  anoints our Executive as commander in chief of the armed forces, "when called into the actual Service of the United States." Nothing more. Article II, Section 2.  

    The idea that the Executive, whose powers are expressly limited by the Constitution, can nevertheless do whatever it deems appropriate in the name of national security, other provisions of the Constitution or legislation notwithstanding, and propounded by such right wing radicals as John Yoo of Berkeley, and Christopher Yoo (no relation) of UPenn, and adhered to by an extremely small group of far right zealots yet adopted by the current administration, has nevertheless been promulgated by much of the rest of the media as if simply "one of two equal sides" of some seemingly reasonable debate.

    But the idea is tautological, and is one that, in essence, simply does not support our Constitution’s most basic premise, but is too twisted to simply acknowledge this outright. There is no cohesive and logical rationale as to how this theory can apply to "some" types of Executive behavior or decision making, and not to others:

    It depends upon the assumption that the Executive‘s discretion is absolute -- since it is the Executive which under this theory has the sole authority to make that decision as to what is appropriate in the name of "national security." If it is not absolute (i.e, "well, the President ‘only‘ has this power when something ‘clearly’ relates to National Security, and is ‘clearly‘ reasonable), there is no way to fashion a "check" upon it, other than the check that, lo and behold, already, and specifically, exists in the Constitution itself, under Article I, Section 1;  which is, namely, that "All legislative Powers herein granted shall be vested in a Congress of the United States." Article I, Section I.  

    That is, if the Executive decides what is national security related, and can unilaterally circumvent the will of Congress, then Article I and Article II’s separation of powers -- the main reason for the Constitution’s creation in the first place -- is essentially rendered meaningless at the Executive’s discretion.

    In fact, the President’s express duties, are laid out in that very same Article II, Section II, and include, far from breaking them, the "duty to see that the laws be faithfully executed."

    [This might also be a good time to re-consider the very first of Article II’s four Sections. "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." How does an Executive branch defend the Constitution when it is under attack by that very same Executive branch?]

    Similarly, the argument that this "legislative powers issue" does not apply because the President has "determined" that he is taking action as commander in chief of our armed forces, yields the same result.

    The idea that this applies in war time is similarly flawed. As Republican Rep. Heather Wilson, in a press release,  put it,  "Our Constitution with divided powers operates in war and in peace." There is nothing in the Constitution to suggest that its most basic purpose is suspended in war time, let alone a "war time" -- unless one is taking a page right out of Orwell’s "1984" -- that, similar to the so called "war on terror," is likely to exist in perpetuity.  

    The commander of our navy listens to his commander: who tells him when the battle is over, when the battle begins, and what the rules are. The commander in chief’s commander, are the people of the United States.  They are actually the decider, in a democracy.

    As Rep. Wilson put it "When the Congress authorizes the President to used force against an enemy, we are not relinquishing our powers under the Constitution, we are exercising them." (Yet not so ironically, this is the President who apparently only half jokingly stated, just before taking office, "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator.")

    The current Executive’s radical argument, and trumpeted as "reasonable" by ignorant or head in the sand, media figures, turns this upside down on its head, even with respect to ideas that don’t even directly relate to specifically commandeering our actual armed forces when called into service. That there are a few radical right wing scholars who nevertheless make this argument, and who clearly do not have the same view of our Constitution as our founding fathers did, or even of the idea of a limited government of checks and balances upon which our system of democracy relies, does not change the logic.

    This point is being missed because it seems obvious that counterintelligence is related to national security. But there is no reason for the President, rather than the people of the United States, to be making that determination as to what powers are ascribable to government in the name of national security thereof.  Moreover, if the President decided that all citizens of Arabic origins were a threat, and put them all in jail, or even if all people who were born on Tuesdays and Thursdays were a threat, and put them in jail, this cockamamie theory being propounded as legitimate, put into practice by our current far right wing government, and danced around by a compliant and half asleep national media, would apply just as equally as it does to the seemingly more reasonable idea that "spying" is a legitimate intelligence pursuit and that it is the Executive, rather than the people‘s prerogative of what actions, and how to take them, be put into place; preexisting law, Congressional mandate, or the Bill of Rights be damned.

    How can one get democrats to focus on fixing the engine, or the foundation, instead of always arguing about the roof?

    by Ivan Carter on Mon Oct 29, 2007 at 11:59:23 AM PDT

    [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site