"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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"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:


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