"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.

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.
The Bush administration could have asked Congress to declare war but the
fact is that didn't happen.
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.



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.

JC