"John R. Carroll" wrote in message
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"Ed Huntress" wrote in message
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"John R. Carroll" wrote in message
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"Ed Huntress" wrote in message
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"Curly Surmudgeon" wrote in message
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On Sat, 08 Nov 2008 21:01:23 -0500, Ed Huntress wrote:
"Curly Surmudgeon" wrote in message
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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?
I don't think there is a basis for a case that FISA violated the
constitution.
I'm sure that such a contention would end up as part of any defense but so
what?
Alledging a defense isn't an actual defense.
The Justice Department could file the instant Obama takes the oath.
A high profile defendent would be hard to place but there is always Gitmo.
Ha-ha! Now you're dreaming. Maybe the dreams make you feel better. g I'll
bet you could come up with the thinking of top federal lawyers if you looked
around. Maybe FindLaw has something on it. As they say, I'm not a lawyer,
but my guess is....there's not much there.
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.
Did WHAT?
We aren't at war, in the legal sense, with anyone Ed.
I'll bet that you won't get that past the Supreme Court. The Act gave Bush
the authority to pursue the war, declared or not. Do you know how many wars
we've fought without even that much authority from Congress? As of Truman's
administration, we sent troops into war 87 times without authorization from
Congress. In all of US history, war has been declared only five times.
But the S.C. dealt seriously with the question of war powers several times
when we were in undeclared wars.
The Bush administration could have asked Congress to declare war but the
fact is that didn't happen.
'Doesn't matter much anymore. The power of Congress to declare war has been
described by legal scholars as "a relic of the 18th century." It's broadly
assumed to have been deep-sixed, at least as a requirement, with Lincoln's
sending of forces to Fort Sumpter, which the Supreme Court upheld. As for
the 1973 War Powers Act, its constitutionality still hasn't been settled.
A resolution authorizing a Presidential use of force is specifically
different on this very point. Bush isn't, and never was, a wartime
commander in chief.
Congressional authorization to use US troops in accordance with our
commitments under NATO didn't confer extradornary powers to Clinton
either.
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.
The assumption that special "war powers" were confered is just wrong Ed.
At least in the case of Bush.
OK, I've pulled something from FindLaw, written by Michael Dorf, Dean of Law
at Columbia and one of the top authorities on the subject. He agrees with
most of your point but notice what he has to jump through in order to get
there. And keep in mind that this is an opinion of a lawyer, not of the
Supreme Court, and consider how many top lawyers are on both sides of big
issues like this:
http://writ.news.findlaw.com/dorf/20060213.html
Take a look at the few sections starting with "Concurrent War Powers..."
It is a constitutional debate. All else being equal, I think Congress would
come out on top, but I'm not a lawyer and all else is not equal. We have a
Court populated by legal scholars who aren't impressed by the arguments of
other lawyers. And they're pretty strong on presidential power, as well as
by separation of powers. They've already slapped Congress's hands in the
Hamdan case, although that was also a slap to Bush.
All I'm saying is that there is enough of a constitutional issue here that I
doubt if you could get convictions of elected Administration officials. And
if I read you and Curly right, that's what you want.
First, I'm doubtful that you're right. Second, prosecuting former elected
officials for *offical acts*, as opposed to personal corruption, is not
likely to fly in any case. Nor should it, unless we want to become a banana
republic that imprisons the losers after an election.
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.
The price of our form of government Ed. Where you see crisis, I see
opportunity. America isn't so fragile you know.
Figuring this one out while we have the luxury of time will prevent having
to resolve this issue at a later date when we might not.
An ammendment to our Constitution might be required and it would be wrong
to start ramming something like that through the States.
Baker and Christopher have worked with a commission to produce a new War
Powers Act.
That's a good place to start talking but the only meaningful solution will
be to ammend the Constitution.
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.
Not really Ed.
This is a simple criminal matter and ought to be dealt with as such.
Failing to do so undermines our system.
FISA was and is well understood.
What's less certain is that it's constitutional.
--
Ed Huntress