On Sun, 09 Nov 2008 04:33:16 -0500, Ed Huntress wrote:
"John R. Carroll" wrote in message
...
"Ed Huntress" wrote in message
...
"Curly Surmudgeon" wrote in message
. ..
On Sat, 08 Nov 2008 21:01:23 -0500, Ed Huntress wrote:
"Curly Surmudgeon" wrote in message
. ..
On Sat, 08 Nov 2008 18:08:09 -0500, Cliff wrote:
On Sat, 08 Nov 2008 06:26:31 -0800, Curly Surmudgeon
wrote:
We're all angry at them, and it's natural to think they *should* be
guilty of some crime, but I doubt if there is anything prosecutable
there.
Warrantless spying on American's in America would be a better place to
start Ed.
And what would be the upshot of that, John? A constitutional debate,
settled by the Supreme Court, in which they tell the executive branch to
knock it off, right? And maybe some civil cases, assuming someone can
prove harm, and even more dubious, that they would be granted standing by
the federal courts. Right?
Where's the criminal act? Whenever Congress tries to tell the executive
branch what they can and can't do, they're on thin constitutional ice.
They may win in the S.C. But that won't be a criminal case. It will be a
constitutional case.
Torture is also against the law.
So the S.C. will settle the issue of what constitutes torture, and tell
the administration that John Yoo's legal arguments are wrong. Again,
where's the crime? You have another constitutional debate, with the
executive branch prosecuting its definition of torture. I don't see who
you would prosecute for a crime. If the Court wants to, it could remand
such a case back to a trial court for prosecution. But would such a case
ever see the inside of a trial court? If it involves a huge constitutional
issue -- and this one does -- it probably would go right to the S.C. for a
hearing on the constitutionality of the issue.
Now, they might think differently at the Hague. But we don't recognize
that court.
I'd also be willing to bet a tidy sum that a Hatch Act case could be
pursued all the way to the White house.
Under the 1993 amendments, it's very unlikely they'd be able to prosecute.
The Hatch Act has been gutted at the federal level.
This stuff isn't either imaginary or the result only of anger. The
President of the United States has been on national television admitting
first that certain acts are illegal and a day or so later, admitting
that they had both been undertaken and that such would continue - law or
no.
When Congress authorized Bush to go to war in Iraq, they opened a
Pandorra's box. Now everything the executive branch does is theoretically
under the cloak of war powers, which are delineated by a mish-mash of
Court precedents and potential constitutional crises that are just lying
in wait. Every president since Lincoln, at least, who has engaged in war
has broken the law under assumed powers and it's rarely been challenged.
Nobody wants to bring these cases because they don't want to raise the
spectre of a constitutional crisis; the authority of the Congress over the
executive is only a gentlemen's agreement to begin with. If the executive
wants to get hard-nosed about it before the Court, they can tell Congress
to go **** up a rope and the Supreme Court, particularly this Court, may
agree. That would serve no one's interests.
The Founders left a lot of loose ends regarding these relationships, not
the least of which was a complete lack of a mechanism for resolving the
constitutionality of laws, and another of which was how the branches were
supposed to get along. It works on tradition and acceptance of precedent.
Nobody wants to push that too far. Prosecuting appointed executive
officials like Scooter Libby is one thing. Prosecuting elected officials
is something else.
The Spiro Agnew case, I think, was telling. Nobody could dispute his
criminality; Nixon didn't put up a fight. But the cases Curly is talking
about are really disagreements between the branches (or potential
disagreements) about what constitutes criminality. I can't think of where
that's been tested against elected officials in a criminal case. I don't
think it has been. Congress's remedy is impeachment, as they threatened
against Nixon, Clinton, etc.
I'll be very interested in the Obama administrations appointments at
Justice.
You should be too. We all should.
I'm more interested in what happens with the Supreme Court. And I don't
want to see a constitutional crisis. We'd all suffer from it.
I'll allow that there are big issues to be dealt with that overshadow
these things in the minds of most Americans. Any initiative won't come
out of the White House. That doesn't mean the Congress has to sit on
their collective hands breathing a sigh of relief that we've just dodged
a bullet. We really haven't. We've taken a hit and absorbed the impact.
That's different.
I'm cautious about your position on prosecuting top elected officials in
the executive branch. I recognize your point about being a nation of laws,
but prosecuting them would raise a bigger issue, which is how the three
branches of government are related in terms of authority. They get along
because Thomas Jefferson, in the Marbury case, decided they had to get
along by reasonable agreement. As it works now we have a uniquely
effective balance of powers. Create a big constitutional dust-up, and that
could open the gates of hell.
While I'd hate to see it used, if all else fails we still have the 2nd
Amendment. Let's try the courts first.
--
Regards, Curly
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Now it's time for War Crime Trials at the Hague for Bush/Cheney
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