AMERICAN FUTURE

Careful here…

I don’t think that even the Bush administration argues that they are free to break a relevant law. As I understand it, they argue that because of the President’s inherent Consitutational obligations and the Congressional resolution authorizing force after 9/11, previous laws may not be applicable.

If you argue that it’s OK to break the law for a good cause (protecting us), then where does it stop?

As I’ve argued here before, the increased concentration of power that has happened post 9/11 is a probably permanent problem resulting from an attempt to solve a temporary one (temporary in this case is likely 20 to 40 years).

Perhaps if I believed that our current enemy was capable of actually destroying the US, I’d agree with you. I don’t. As individuals they can kill us, but they can’t destroy us as a whole unless we let them.

I don’t think the illusion of safety is worth the price. YMMV.

Scott K

Marc: Greenwald just is correct as a matter of criminal law. Motive is never an element of any crime.

If I inject my mother with 10X the dose of insulin she is supposed to have and she dies, I might argue it was an accident. If the DA wants to convict me of first degree homicide, s/he might completely ignore my motive, and to prove intent (intenet is often an element of a crime) simply show the jury that I had just checked a book out of the library that discusses what strength of insulin dosage is fatal.

Or s/he might refer to motive to show I really did intend to kill my mother, becauser I’d told all my friends that the longer Mom lived the more the cost of her care was eating my inheritance. Motive can be evidence of intent, but is not required to prove a crime.

Greenwald just is right about that, as he is most of his other legal arguments.

Showing motive—good or bad— is not necessary to prove a crime.

Scott and Mona—In my view, the issue is whether ordinary criminal law should apply to actions taken by the Executive Branch to prevent and/or respond to terrorist attacks (or, in the past, the Civil War, the World Wars, and the Cold War) .

Recall that in the aftermath of 9/11, the Clinton Administration was harshly and widely criticized for treating Al Qaeda’s terrorist acts (e.g, the 1998 Embassy bombings)as crimes, rather than as acts of war.

Admittedly, the question of whether terrorist acts should be viewed as criminal acts or as acts of war isn’t identical to the question of the legality or illegality of the government’s response to those acts. However, if you accept the premise that we are at war, as I do, then it seems to me that criminal law should not be the binding constraint on the government’s actions. As I said in my post, the Constitution isn’t a death warrant.

I’m not arguing that there should be no limits on what the government can do when a state of war exists. We need legislation to define what those limits, which would be less constraining than criminal law, should be. Having lived through the Watergate affair as a young adult, there is no way that I could support unbridled executive power.

More than anything else, my objection to Greenwald is his demonizing of Bush. While he strenuously maintains that intent doesn’t matter, he presumes to comprehend Bush’s intent—to enhance executive power, rather than to protect my life, your life, and his life. This internal contradiction shows his partisanship. I would wager that, if he were not so cocksure of his powers of divine inspiration, his position on the matters I’ve addressed here would be more moderate and less propagandistic.

Thanks for your comments. I’d be happy to continue the conversation

Fundamentally acts of war overseas and acts against US citizens are, in my book, different.

I would argue that within the US, in the absence of a threat to the destruction of the country (which, however dangerous and inconvenent, Al Qaeda is not), the rule of law MUST prevail.

Now if you look at the Attorney General’s testimoney before Congress last week, he was asked if ANY legislation that Congress passed would be binding on the Executive to prevent them from doing something they viewed as necessary to fight the war on terror. It sounded to me like he pretty clearly declined to admit to any Legislative limits them (the McCain “anti-torture” amendment was specifically discussed).

I’m willing to give the Executive a LOT of room to manuver overseas, but not at home. I do not think that putting overseas military action beyond legislative authority is something that is good for the country. Personally, I think the administration is doing what it is doing because they believe it the best for the country, I just disagree.

For those looking for examples of increased centralization of power, just look at the TSA. Now, instead of many private companies managing access to a private resource based on federal and local regulation, we have single federal civil service to do this job.

Marc: Greenwald actually declined to state what Bush’s motives are. As he says, it doesn’t matter, not for purposes of whether Bush broke the law and thereby commited a crime—if I fatally overdosed my mother, it doesn’t matter if I did it to protect my inheritance or because she was in a lot pain. All that matters is whether I intended to take her life. So, for criminal law purposes, that is where is it at.

In terms of Constitutional law, invocation of national security matters, but is insufficient to cause Bush to prevail if this matter were heard by the SCOTUS. Over at Volokh Orin Kerr has declared that—and I am sure he is correct— Bush would lose by prolly as much as 8-1, and I think possibly 9-0.

Greenwald says it is possible that Bush’s actions are driven by a desire for a power grab, and honestly the Yoo theories of Executive power on whihc Bush relies would support that view. Bush has had every opportunity to either obey the law and obtain FISA warrants, or to go to Congress and amend that statute so that his program is legal. Under a country ruled by law and not men, he does not have the option of simply ignoring the law, and certainly not beyond the immediate aftermath of 9/11. Not for the decades that we will be fighting Islamic terror.

Greenwald is verbose and bombastic, but his legal arguments are seldom wrong, and many of his political judgments hold merit. (I read a lot and sometimes comment at QandO, because I’m a libertarian hawk, and they are lovin’ Greenwald over there.) I was pretty p*ssed when he sent hordes of Angry Left emailers flooding Instapundit’s mail box to demand that Reynolds renounce Ann Coulter. It was poor blogging form and rude, and I told him Greenwald so several times, rather forcefully, by email.

But except for rare lapses like that, he is usually right.

Rich, wrt Justice Robert Jackson and the Constitution not being a suicide pact. Interestingly, that same Justice Jackson a few years later would write the Opinion that means Bush would lose if his warrantless surveillance program were heard by the SCOTUS. Justice Jackson’s Opinion in Youngstown Sheet & Tube Co. v. Sawyer, is very clear that even in time of war, absent very rare and exceptional circumstances (such as ongoing armed rebellion), a President may not violate a law pased by Congress(all emphasis mine):

There are indications that the Constitution did not contemplate that the title Commander in Chief of the [p644] Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may, to some unknown extent, impinge upon even command functions.

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.

....

His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch [p646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.

...

In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

....

The essence of our free Government is “leave to live by no man’s leave, underneath the law”—to be governed by those impersonal forces which we call law. Our Government [p655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. ...With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

Mona—Thanks for providing the excerpt from Justice Jackson. The question, then, is whether the war on terror represents a “very rare and exceptional circumstance.” It certainly is rare, in that it has never happened before (for the US). Is it exceptional? I suspect that equally well-meaning people could argue long and hard over that.

What, exactly, does “exceptional” mean? Was 9/11, which took more lives than did Pearl Harbor, exceptional? Is “exceptional” a label that should be applied only to events that have already taken place? Or does it also apply to possible future events instigated by an enemy that has already attacked us and has unambiguously stated its intention to do so again?

Mona—I suspect you would agree that, when a war begins, its duration isn’t forecastable. To set an arbitrary time limit on the duration of a president’s war-time powers is, in my view, not a defensible position.

What distinguishes the war on terror from our previous wars isn’t the inability to forecast its duration. Instead, it is that the war on terror is episodic, while earlier wars were continuous. If you accept this distinction, your argument (“after calm is restored”)implies an on-again, off-again approval of the exercise of presidential war-time powers. Each time a terrorist act occurs, these powers could be exercised for a necessarily arbitrary period of time.

As I see it, there are two problems with this scenario. The first is its practicality: it’s difficult to imagine Congress granting this authority every few years. The second is its probable impact on the duration of the war and the timing of terrorist attacks. If the enemy knows that the level of preparedness will go up and down, it will choose to act when the level is down. By so doing, it will extend the war’s duration and increase its chances of winning.

That’s it for me for today. If you want to continue (I hope you do), I’ll respond to your next comment tomorrow.

Youngstown Sheet and Tube probably can be distinguished as dealing with a domestic property taking (See Footnote 2 of Jackson’s concurrence, below.) Further, the position of the administration is that the surveilance was authorized by the broad terms of the AUMF, a law passed by congress. Especially when this is construed as a response to the POTUS request for authority that preceded passage of the AUMF.

In any event for those who are interested here are selected quotes from the seven opinions filed in Youngstown, a case which arose out of a labor dispute in a domestic steel mill.

Youngstown Sheet and Tube v Sawyer
343 U.S. 579

Opinion of the Court by Black, J. with separate concurring opinions by: Frankfurter, Douglas, Jackson, Burton and Clark. Dissenting opinion by Vinson, C.J. joined by Reed, J. and Minton, J.

Black, @US 587 “The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.”

Frankfurter concurring @ U.S.611 “The only other instances of seizures are those during the periods of the first and second World Wars. 19 In his eleven seizures of industrial facilities, President Wilson [343 U.S. 579, 612] acted, or at least purported to act, 20 under authority granted by Congress. Thus his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute.
Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others [343 U.S. 579, 613] were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.” (emphasis supplied)

Douglas concurring @ U.S. 631 “The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure. 1 But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that [343 U.S. 579, 632] the President has effected. 2 That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances expounded by MR. JUSTICE BLACK in the opinion of the Court in which I join.”

Jackson concurring @ U.S. 635 “We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Jackson then places Truman’s actions in the third category and limits his concurrence to domestic matters stating @ U.S. 645 “We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch [343 U.S. 579, 646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.”

Footnote 2 of Jackson’s concurrence notes the separate treatment given domestic and foreign activities by the POTUS and cites the ratio decidendi of United States v. Curtis-Wright Corp. 299 U.S. 304, “When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President’s action – or, indeed, whether he shall act at all – may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311 , `As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.’ (Italics supplied.)” Id., at 321-322.” (emphasis supplied)

Burton concurring @ U.S. 559 “This brings us to a further crucial question. Does the President, in such a situation, have inherent constitutional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threatened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the current seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war. 7 [343 U.S. 579, 660]
The controlling fact here is that Congress, within its constitutionally delegated power, has prescribed for the President specific procedures, exclusive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President’s order of April 8 invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.”

Clark concurring @ U.S. 663 “I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President’s independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. [343 U.S. 579, 663]”

Vinson, C.J. Reed, J and Minton, J. dissenting @ U.S. 708 “The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontroverted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.”