Defending dictatorial powers
David Colehas an interesting article about the NSA scandal.
Among other things, he points out that in the 42 page memo the Justice Dept. relies upon to defend their actions, it stipulates
“that Congress may not in any way impede the president's executive authority to choose the "means and methods of engaging the enemy."
That theory knows few if any limits. The Justice Department argues that since electronic surveillance is a "means and method of engaging the enemy," Congress cannot restrict it, even when it comes to spying on Americans without judicial approval, and even though Congress made such conduct a crime in the Foreign Intelligence Surveillance Act (FISA).
He also bring up an issue I’m unfamiliar with “constitutional avoidance.”
Every time Gonzales was challenged on the implausibility of his reading of the authorization to use military force, however, he retreated, characteristically enough, to the doctrine of "constitutional avoidance." He said that as long as the administration's interpretation of the statute was fairly possible, it must be adopted to avoid the serious constitutional question that would be raised if one read the statutes' "plain English" as prohibiting the president's action. But that claim ultimately returns Gonzales to the question he repeatedly sought to duck: namely, does the president have the authority to violate a criminal statute barring him from conducting warrantless electronic surveillance on Americans within the United States?
This sounds pretty bogus to me, but I’ll have to check into it.
His conclusion is right on the money, though.
What the NSA spying debate is ultimately about is this: Do we want to live in a country where the president, like the rest of us, is bound by law, or do we want to live in a country where the president, by invoking the magic words "commander in chief," can order that criminal laws be violated in secret? One thing is certain: The Bush administration will never want a hearing on that question.
Unfortunately, this is going to be about if we are going to hang up on Osama or not. Sheesh.
Among other things, he points out that in the 42 page memo the Justice Dept. relies upon to defend their actions, it stipulates
“that Congress may not in any way impede the president's executive authority to choose the "means and methods of engaging the enemy."
That theory knows few if any limits. The Justice Department argues that since electronic surveillance is a "means and method of engaging the enemy," Congress cannot restrict it, even when it comes to spying on Americans without judicial approval, and even though Congress made such conduct a crime in the Foreign Intelligence Surveillance Act (FISA).
He also bring up an issue I’m unfamiliar with “constitutional avoidance.”
Every time Gonzales was challenged on the implausibility of his reading of the authorization to use military force, however, he retreated, characteristically enough, to the doctrine of "constitutional avoidance." He said that as long as the administration's interpretation of the statute was fairly possible, it must be adopted to avoid the serious constitutional question that would be raised if one read the statutes' "plain English" as prohibiting the president's action. But that claim ultimately returns Gonzales to the question he repeatedly sought to duck: namely, does the president have the authority to violate a criminal statute barring him from conducting warrantless electronic surveillance on Americans within the United States?
This sounds pretty bogus to me, but I’ll have to check into it.
His conclusion is right on the money, though.
What the NSA spying debate is ultimately about is this: Do we want to live in a country where the president, like the rest of us, is bound by law, or do we want to live in a country where the president, by invoking the magic words "commander in chief," can order that criminal laws be violated in secret? One thing is certain: The Bush administration will never want a hearing on that question.
Unfortunately, this is going to be about if we are going to hang up on Osama or not. Sheesh.
posted by Zack at 6:17 AM
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