Monday, February 06, 2006

The Judicial Hearings: Swearing About Swearing In

The Senate Judicial Committee hearings on war powers have commenced. The committee will hear from only one witness today: Attorney General Alberto Gonzales, a key architect of the body of memorandums and legal opinions that argue for existence of "plenary" and "unitary" presidential powers.


So much for getting to the heart of the matter…

Chairman Arlen Specter has decided there's no need to swear Gonzales in. Senators Leahy and Feingold have objected. How long will this contest go on?

What's the problem with making the Attorney General take an oath to tell the truth?

Now we're having a roll call vote. Republicans vote to uphold Specter's decision, Democrats vote against. Specter made one vote by proxy. Feingold asks to see the proxies.

Jeff Sessions, Republican from Alabama and one of the administration's staunchest water boy, takes some time to state his objections to the objections.

We're twenty-one minutes into the hearings…


While they're swearing about swearing in, let's take a quick review of the previous bidding on presidential war powers.

Over the past months, the administration has consistently justified any and all actions of the executive branch on the basis of two documents: the U.S. Constitution and the Authorization for Use of Military Force (AUMF) passed days after the 9/11 attacks of 2001.

What overarching war powers are granted to the president by Article II of the Constitution? They're short and simple. The president is commander in chief of the military (not the country) and can make treaties with approval of two thirds of the Senate.

That's it. No torture, no domestic spying, no authority to override anything else in the Constitution or break any laws or treaties.

All other war powers described in the Constitution--including authority to declare war, regulate the armed forces, and suspend habeas corpus in times of invasion or rebellion--are granted to Congress in Article I.

Gonzales just now spoke of Mr. Bush's inherent constitutional authority as the sole agent of foreign policy and a whole bunch of other stuff the Constitution doesn't even hint at. I wonder if anybody on the committee will push back on that one?

Here's the key language from the AUMF:
…the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Some members of Congress have said they did not intend for this language to allow for warrantless surveillance of American citizens and other legal residents whose rights are covered in the constitution.

Gonzales says it doesn’t matter what Congress meant when it passes the law; it only matters what the law says, and "all necessary and appropriate force," in his opinion, certainly covers the NSA surveillance program…

He also argues that the Supreme Court backed the administration's interpretation of the AUMF in the case of Hamdi v. Rumsfeld. In the decision, the court ruled that Mr. Bush was authorized to hold Hamdi, an American citizen, as an "enemy combatant."
The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

Therein lies the rub of the issue. The court, in effect, upheld Mr. Bush's right to deprive a citizen of his constitutional rights based on permission given him by Congress to do so.

Is it constitutional for Congress to grant powers to the President that are not allowed in the Constitution?

(Stop in later today and throughout the week for more commentary on the hearings. For a broader overview of the war powers issue, take a look at "Smoke, Mirrors and War Powers" at ePluribus Media Journal.

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