"John R. Carroll" wrote in message
...

"Ed Huntress" wrote in message
...

"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?

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

"Ed Huntress" wrote in message
...

"John R. Carroll" wrote in message
...

"Ed Huntress" wrote in message
...

"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:


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

Well, that last bit was tongue in cheek and I don't expect to see Federal
Marshal's escorting Bush from the dias on 01/20.
I don't especially think either would be very astute and certainly not
productive.
A warrant would perhaps, at some point, be appropriate.

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.

I'll bey I could. I've "looked around" and then some Ed and there is real
discomfort in evidence. You can start with the OLC head that back walked an
awful lot of Yoo's "legal" opinions written for the WH for starters. There
was real gun fighing going on just before the 2004 elections over this
stuff. My research has certainly changed my opinion of John Ashcroft.
I think Yoo, David Addington and Dick Cheney are the only people on the
planet that thought Yoo's work was rigorous or well founded and I'm pretty
sure Addington and Cheney didn't care much beyond having the opinion they
wanted to see.

Scalia has made numerous and rather scathing regarding Yoo's "work".
Some people may disagree on Scalia's opinions but anyone that knows him and
his body of work/writings will tell you he's deadly serious about good
lawyering. That's something that sets him apart from Thomas or Alito.
Thomas, in fact, seems adept only at graft and nepotistic behavior. His
legal writings are complete garbage.




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.

The Act itself is fairly clear although Bush seemed to prefer his alternate
reading, especially in light of developments on the ground in Iraq.
The Congressional Record is MORE than clear.
Congress provided a tool intended to be used to convey the serious nature of
our intentions.
I think everyones expectations on both sides of the aisle were that invasion
by ground forces would first and foremost be a last resort and second, that
such an action would be properly and completely thought through. Who can
forget the "exit strategy" mantra Republicans beat Clinton over the head
with in the 90's? Given that, it wouldn't have been unreasonable to believe
that the administration had something in mind. The truth, apparently, is
that they didn't and I believe members of our Congress were apalled by this,
even the Republican's. Perhaps them especially.


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.

Well, I guess I know now. You seem to think this is estblishing some
precedent.
It is if you mean a precedent of getting away unchallenged or unscathed.
None of those 87 instances confers legal standing one way or another.


But the S.C. dealt seriously with the question of war powers several times
when we were in undeclared wars.

They have and my impression is that there was over reaching by plantiff's in
every case.
They compromised their own positions by being over broad. That's stupid as a
professional matter.


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.

The WPA cleraly violates he constitution. The question is severability.


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..."


I've read this and more Ed.
Concurrent powers is clearly at issue.


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.


There isn't really much to debate. Today's Court may not be impressed with
other lawyers but I can't imagine any reading of the Constitution that a
constructionalist would find wanting in this regard.
As a general matter, the Supremes have said publicly, in their writings, and
privately that Congress has the power of the purse as it's primary tool but
they haven't had the need beyond that.

You mention Hamdan and I'm sure you have read it.


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.


I don't know what Curly wants and suspect he doesn't either.
I care less about the result than I do the attempt.
Conviction or no, the shortcomings of our existing process would be fleshed
out and the findings of the courts would provide a road map for either
legistlation that would be constitutional or an ammendment to the
Constitution itself.


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.


The real hallmark of banana republic's is a lack of respect for the law and
the substitution of one mans judgement for it.

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.

I don't believe so and neither do a lot of legal scholars.
The gist of it is that FISA didn't and doesn't limit a President's authority
to act timely.
I haven't heard any compelling or authoritative argument that even sitting
President's are imune from oversight.
It's a transparency thing as well Ed.


JC

"John R. Carroll" wrote in message
...

snip

The gist of it is that FISA didn't and doesn't limit a President's
authority to act timely.
I haven't heard any compelling or authoritative argument that even sitting
President's are imune from oversight.
It's a transparency thing as well Ed.

Well, we'll just have to agree to disagree. I don't think it would be good
for the country, and I doubt if you could get a conviction. If I understand
you accurately, you think it would be good, and you're not as concerned
about getting a conviction as you are about having a trial.

I see it as divisive, at just the wrong time. And I don't think you'd be
able to avoid having it look like political retribution, to many US citizens
as well as to the rest of the world. The fine points are not going to be
nearly as visible as are the facts that it's a constitutional argument and
that we're willing to imprison those with whom we don't agree about
constitutional interpretations. It isn't as if they were simply enriching
themselves or arresting members of the opposition. If anything, proposing it
as "justice" will breed a lot of cynicism and resentment within the US
itself.

The Constitution has provided for these things while they're occurring, by
means of impeachment and trial. Congress had that opportunity but didn't act
upon it. Now it's done, and the political process will undo as much of it as
possible. To hold criminal trials after the fact is iffy.

--
Ed Huntress

"Ed Huntress" wrote in message
...

"John R. Carroll" wrote in message
...

snip

The gist of it is that FISA didn't and doesn't limit a President's
authority to act timely.
I haven't heard any compelling or authoritative argument that even
sitting President's are imune from oversight.
It's a transparency thing as well Ed.

Well, we'll just have to agree to disagree. I don't think it would be good
for the country, and I doubt if you could get a conviction. If I
understand you accurately, you think it would be good, and you're not as
concerned about getting a conviction as you are about having a trial.

I'd like to insure that future President's excercise better judgement either
because that have or or because they fear the consequences.
Being able to look back at the outcome of Richard Nixon absent a pardon
would have been beneficial.
Ford pardoned Nixon for the exact reasons you have stated here Ed.
One consequence of that pardon was that Cheney and his fellow travellers
concluded that Nixon's mistake was getting caught because he was TO OPEN.
They also concluded that there really wasn't significant risk.

Ford never anticipated a George W. Bush.
The two are as different as night and day both as civil servants and men.
I can't help but wonder what a 1970's Ford would have thought of the
nomination by his party of the likes of George W. Bush.

It's pretty obvious in light of Tuesday's result that America, as a country,
has repudiated the Bush years to a large extent.


I see it as divisive, at just the wrong time. And I don't think you'd be
able to avoid having it look like political retribution, to many US
citizens as well as to the rest of the world. The fine points are not
going to be nearly as visible as are the facts that it's a constitutional
argument and that we're willing to imprison those with whom we don't agree
about constitutional interpretations. It isn't as if they were simply
enriching themselves or arresting members of the opposition. If anything,
proposing it as "justice" will breed a lot of cynicism and resentment
within the US itself.

The Constitution has provided for these things while they're occurring, by
means of impeachment and trial. Congress had that opportunity but didn't
act upon it. Now it's done, and the political process will undo as much of
it as possible. To hold criminal trials after the fact is iffy.

I'm open to alternative solutions Ed and the one thing I know for sure is
that I don't really know what's best.
I'm only willing to exclude business as usual as an adequate response. You
have to draw the line somewhere.


JC

On Sun, 09 Nov 2008 14:15:20 -0500, Ed Huntress wrote:


"John R. Carroll" wrote in message
...

snip

The gist of it is that FISA didn't and doesn't limit a President's
authority to act timely.
I haven't heard any compelling or authoritative argument that even
sitting President's are imune from oversight. It's a transparency thing
as well Ed.

Well, we'll just have to agree to disagree. I don't think it would be good
for the country, and I doubt if you could get a conviction. If I
understand you accurately, you think it would be good, and you're not as
concerned about getting a conviction as you are about having a trial.

I see it as divisive, at just the wrong time. And I don't think you'd be
able to avoid having it look like political retribution, to many US
citizens as well as to the rest of the world. The fine points are not
going to be nearly as visible as are the facts that it's a constitutional
argument and that we're willing to imprison those with whom we don't agree
about constitutional interpretations. It isn't as if they were simply
enriching themselves or arresting members of the opposition. If anything,
proposing it as "justice" will breed a lot of cynicism and resentment
within the US itself.

The Constitution has provided for these things while they're occurring, by
means of impeachment and trial. Congress had that opportunity but didn't
act upon it. Now it's done, and the political process will undo as much of
it as possible. To hold criminal trials after the fact is iffy.

War Crimes rarely come to light until after a regime has been removed from
power. Violation of the Geneva Convention, knowingly and with intent, is
a crime under both U.S. and International law.

Since Bush pardoned most of the players there is little option other than
trying them at the Hague, I'd much rather take care of our own problems
internally but this was Bush's choice.

Justice must be done.

--
Regards, Curly
------------------------------------------------------------------------------
Now it's time for War Crime Trials at the Hague for Bush/Cheney
------------------------------------------------------------------------------




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