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  1.    #1  
    Policies Only a Dictator's Mother Could Love


    I give you, the reader, first hand, fully informed disclosure of the brutal, indiscriminate trampling of all libertarian values which this great nation has bled for, died for, longer than 230 years.

    .................................................................................................... ............................................

    On 12/07/07, As written and delivered on the floor of the US Senate by Senator Sheldon Whitehouse (D-R.I.):

    President Bush pressed the Protect America Act not only to establish how our government can spy on foreign agents, but how his administration can spy on Americans. Make no mistake, the legislation we passed in August is significantly about spying on Americans – a business this administration should not be allowed to get into except under the closest supervision. We have a plain and tested device for keeping tabs on the government when it’s keeping tabs on Americans. It is our Constitution.

    Our Constitution has as its most elemental provision the separation of governmental powers into three separate branches. When the government feels it necessary to spy on its own citizens, each branch has a role.

    The executive branch executes the laws, and conducts surveillance. The legislative branch sets the boundaries that protect Americans from improper government surveillance. The judicial branch oversees whether the government has followed the Constitution and the laws that protect U.S. citizens from violations of their privacy and their civil rights.

    It sounds basic, but even an elementary understanding of this balance of powers eludes the Bush administration. So now we have to repair this flawed and shoddy “Protect America Act.”


    As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

    To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

    1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

    2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

    3. The Department of Justice is bound by the President’s legal determinations.



    Let’s start with number one. The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

    But what does this administration say about executive orders?

    An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

    “Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”

    So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: Nothing.

    Here’s number two.

    The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

    Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

    Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.

    Remember point three:

    The Department of Justice is bound by the President’s legal determinations.

    We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.” Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.”


    In a nutshell, these three Bush administration legal propositions boil down to this:

    1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”

    2. “I get to determine what my own powers are.”

    3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”
  2. gojeda's Avatar
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    #2  
    Quote Originally Posted by lifes2short View Post

    <snipped drivel>

    In a nutshell, these three Bush administration legal propositions boil down to this:

    1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”

    2. “I get to determine what my own powers are.”

    3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”
    I, for one, would like to thank Shortie for demonstrating to us why Congress is polling lower than the President is. I, too, would get nothing done if I had to be forced to sit through an indoctrination session being passed off as "doing the people's business".

    No need to respond to this drivel except to just cite some inconvenient facts:

    1. The Department of Justice is there to serve at the pleasure of the President - whether it be Bush, Clinton, or....if it comes to that, Hussein Obama. It is a cabinet department under the direct control of the President, and has been so since its inception in 1870.

    2. Unfortunately for the good Senator, and for the misguided poster above, the Marbury v. Madison decision rendered a 4-0 decision that Marbury was entitled to his commission as Justice of the Peace of the District of Columbia, as appointed by the previous President John Adams, but further opined that Marbury's claim was unconstitutional.

    To portray this case as some sort of defeat of Presidential perogative borders on the hilarious.

    Needless to say, Marbury v. Madison had absolutely nothing to do with Article II or surveillance for that matter. Marbury v. Madison was expressly about the boundaries of authority of the Supreme Court. It's allusion is a smokescreen and, therefore, a non-sequitur.

    And last, a few words about executive orders...

    The good Senator is correct in that an executive order cannot limit a president. After all, why would a President propose something that limits his authority? It makes little sense.

    Executive orders are issued, modified, and rescinded purely at the will of the sitting President. The scope of Executive Orders is stictly confined to the operation of the Executive Branch. Many Presidents have issued Executive Orders. The Supreme Court has the power to overturn them. Congress has the power to issue legislation that conflicts, and therefore nullifies, an executive order.

    ....yes yes, the inconvenient mechanisms of "checks and balances" the senator failed to mention.

    The Protect America Act was passed, by a comfortable margin, by this nation's representatives.

    The law requires a court order to conduct surveillance and physical searches on persons located in the United States. The law STILL requires the FISA court to be notified within 72 hours. The law, importantly, frees up our intelligence assets to collect foreign communications outside of the United States.

    Perhaps if the good senator and Shortie could provide examples on how this law has been used to send black helicopters above people's houses in the middle of the night here in the United States, then it would give the reasonable among us pause.

    In the meantime, cries of "help help - see the repression" is best reserved for a funny Monty Python skit.
  3.    #3  
    Quote Originally Posted by gojeda View Post
    //full-blown misrepresentative spewage snipped//
    Thank God for grossly misinformed, multi-login sock-puppets with the courage of their convenient agendas. Now, just imagine how Bush's new rules will play out with your NeoCon sacred-cow causes under the next Democratic President.
  4. gojeda's Avatar
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    #4  
    Quote Originally Posted by lifes2short View Post
    Thank God for grossly misinformed, multi-login sock-puppets with the courage of their convenient agendas. Now, just imagine how Bush's new rules will play out with your NeoCon sacred-cow causes under the next Democratic President.
    ^^
    Quite the vigorous defense there Shortstuff.
  5.    #5  
    Quote Originally Posted by gojeda View Post
    ^^
    Quite the vigorous defense there Shortstuff.
    You offer nothing but a misrepresentative lie disguised as a civics lesson and you question my 'defense'. Only a multi-login sock-puppet would think of that, Chuckles.



    1990 just called. It wants its cartoonish, bottom-dwelling multi-login methods back!
  6. #6  
    Lifes2short - you are again babbling and making absolutely no sense. The statement was far from your description. Is there a reason you have difficulty speaking in a civil manner instead of insults? Your posts show a history of insults.

    Ben
  7.    #7  
    ^
    Yes, this type of attack, where you have nothing intelligent to say on the matter, but a need to provide some 3rd-party character-assassination, is known also, Ben, since what? ... 1990 also? Tragic that your demeanor and intelligence are incapable of being equal-handed. When the truth is concidered 'insulting', it shows much more about you than your intended target, most especially where such a hard-right-turn of centralized Executive power is concerned. I'm not convinced that you and your other fingers wouldn't have a problem if it was President Hillary Clinton having the exclusive, centralized authority, without any oversight, to define the Law to the Justice Dept, at will. If only Nixon had had such authority. Talk about your inside deal!
  8. #8  
    enough of this. closed. Don't make me close more by taking this sniping elsewhere.

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