Representative Harman, yes or no
Would you or would you not vote for legislation offered that would allow the President to spy domestically without seeking a warrant from the FISA court? Would you vote for loosening any current restrictions that would make it easier for the President to spy on Americans domestically?
Representative Harman answered:
My response (none / 0)
No and no.
But I think treatment should follow the diagnosis. It's premature to consider legislative proposals until the Congressional Intelligence Committees are "fully and currently" briefed on all operational details of the President's NSA program, as required by the National Security Act of 1947.
The Intelligence Committees should then hold hearings to determine whether the program can comply with present law. I believe it can, and it must. If we determine that it cannot, Congress has only two options: (1) Change FISA, including adding IT and other resources to the Department of Justice to speed warrant applications; or (2) Change the program. To be Constitutional, any framework must meet the Fourth Amendment requirement of probable cause.
Representative Harman's answer, like the question, is good but incomplete. My response to Representative Harman explains:
Representative Harman (none / 0)
Thank you for participating here at daily kos.
However, I do have a problem with your last answer.
Specifically it does not address the fact that the Bush Administration is asserting an Article II power that makes its actions on these questions beyond Congressional and judicial control.
The diagnosis Representative, is that the President is determined to violate the Constitutional design of checks and balances, ignore the Congress' Article I power and the Judiciary's Article III power.
Representative Harman, you have a Constitutional crisis on your hands already.
It is clear that Republicans are prepared to accept this outrageous assertion of unfettered Presidential power.
I hope that Democrats are not.
More on the flip.
[In] The Most Dangerous Branch . . . I argued:
The . . . infamous Bybee Memo, is not an anomaly in the thinking of the Bush Administration. It is their doctrine:
In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, "because the circumstances which may affect the public safety" are "not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy."
. . . [The Constitution's] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President's obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.
In short, when acting as Commander-in-Chief, the President is above the law says the Bush Administration. And so have they argued on everything. Torture. Enemy combatants. And now warrantless surveillance of American citizens.
The Bybee memo, and by extension, the Bush Administration and Republicans, argue that it is the Constitution that grants the President these powers.
. . [T]he Bybee memo, and likely the Yoo memo, that provided the legal justification for the warrantless surveillance, also rely on dishonesty about the Constitution and about Alexander Hamilton and the Federalist Papers.
For example, the Bybee memo states that:
The President's constitutional power to protect the security of the United States and the lives and saftey of its people must be understood in the light of the Founders' intention to create a federal government "cloathed with all the powers requisite to the complete execution of this trust." The Federalist No. 23.
But what does Federalist 23 actually say?
THE necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.
This inquiry will naturally divide itself into three branches the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head.
The lie of Bybee and Yoo is obvious. Federalist 23 is not speaking of Presidential power. It is speaking of the power granted the federal government. To cite Federalist 23 as support for a claim of Presidential power over the Congress and the Courts is to flat out lie.
The Bybee memo continues its dishonesty:
The text, structure and history of the Constitution entrusted the President with the primary responsibility, and thus the Power, to ensure the security of the United States in situations of grave and unforeseen emergencies. . . . U.S. Const., Art. 2, [Sections 1 and 2].
What do Article 2, Sections 1 and 2 of the Constitution say?
The executive Power shall be vested in a President of the United States of America. . . . The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
It appears that Yoo and Bybee are not strict textualists on this issue. What Article do they ignore? How about Article 1, Section 8? The powers of the Congress include:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . .
So how can this possibly lead to the Yoo/Bybee assertion of Presidential plenary power? By lying about it. It is that simple.
. . . Yesterday, Senator Russ Feingold said:
The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.
The question for all Democrats is simply this - will they accept the assertion of Kingly powers by President Bush? Republicans have said they will.
Representative Harman, what will Democrats say?