Sunday, February 05, 2006

More Powers to Him: the Senate NSA Hearings

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

-- Fourth Amendment to the United States Constitution

This morning, the Judiciary Committee of the United States Senate begins hearings on what is the most vital issue of the post-9/11 age: the authority of a president to cast aside the Constitution and the laws and treaties.

The hearings will not just be about the warrantless domestic spying conducted by the National Security Agency. Purposely or not, they will challenge or acquiesce to the administration's claims of "plenary," "unlimited," and "unitary" executive authority in time of war, and determine whether the United States will remain a federal republic in which powers are divided among three branches of government or become a totalitarian state in which "rule of law" equates to the arbitrary dictates of one individual.


Since the early days of the Bush administration, Vice President Dick Cheney has been the leading voice calling for restoration of the powers of the presidency, powers he claimed had been eroded after the Nixon administration in the wake of Vietnam and the Watergate scandal. Cheney is especially critical of the War Powers Resolution of 1973, which restricted the ability of U.S. Presidents to wage extended wars unilaterally.

"That made a change in the institutional arrangements that I don't think is healthy," Cheney has said of the resolution. "I don't think you should restrict the president's authority to deploy military forces because of the Vietnam experience."

He was referring, of course, to the Vietnam War he declined to experience by virtue of not one, not two, but five consecutive college deferments, and which his boss avoided with a rich man's son's furlough with the Air National Guard.


Though Cheney led the campaign to expand presidential powers, he had plenty of high-dollar help supporting him from the rear. One of the key wizards behind the curtain was John Yoo, who during Mr. Bush's first term worked in the Justice Department's Office of Legal Counsel.

Presently on the faculty of the University of California at Berkley Law School and referred to in some circles as The Torture Professor, Yoo wrote or coauthored the key memoranda that encouraged the Pentagon and the White House to deny traditional protections to prisoners of war and detainees. He was also, along with current Secretary of Homeland Security Michael Chertoff, a principle author of the USA Patriot Act.

Two weeks after 9/11, Yoo single-handedly wrote the infamous memo that stated "In the exercise of his plenary [absolute] power to use military force, the president’s decisions are for him alone and are unreviewable."

One might be inclined to dismiss Yoo's written record as the work of a lawyer who was merely doing the best job he could for his client. Until, that is, one take a look at the transcript of a December 2005 debate between Yoo and Professor Doug Cassel, director of the Notre Dame Law School's Center for Civil and Human Rights.
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?

Yoo: No treaty.

Cassel: Also no law by Congress—that is what you wrote in the August 2002 memo [the memo that outlined plenary presidential powers and unreviewable presidential decisions].

Yoo: I think it depends on why the president thinks he needs to do that.

That one of Mister Bush's most trusted legal advisors thinks it's okay for the commander in chief to crush a child's testicles in the name of national security should give you a perspective on the underlying pathology of the entire administration.

Coming up: what the Constitution doesn't say and what the administration says it does.


  1. I'm a bit confused here. If, as Fascist Yoo maintains, "In the exercise of his plenary [absolute] power to use military force, the president’s decisions are for him alone and are unreviewable[,]" then why were they so desperate to get the AUMF pushed through Congress in exactly the form they wrote it, without changes, amendments or deletions? Surely, if the Unitary Executive has plenary powers then all he has to do is to declare a state of war (thereby neatly abrogating the Constitutional power reserved to Congress.)

    Does the Unitary Executive theory also empower the President to dissolve Congress? Or perhaps he only has that power if he perceives that said Congress becomes a danger to the Republic, (i.e. becomes traitorous due to a majority of the opposition party)

    And if THAT perception is possible, does he dissolve one House of Congress if the opposition party gains a majority there?

    Or does he merely suspend the Congress if the opposition party gains a majority by some accident, and call for new elections?

    Sounds to me as if the Unitary Executive theory is where they were heading all along, and I'm quite sure it's where Mr Bush was planning to go.

  2. Reminds me of that guy who is sending out letters to the Right Blogosphere, asking them their opinion on the president's right to bludgeon cats for national security.

    Except that was a spoof. This sounds like it's in deadly earnest.

  3. Anonymous6:45 AM

    Yoo is a scary dude. Would be interesting to dig into his background. The sadomasochists are everywhere these days. They received the signal that it is now okay to come out of the darkness and play in the light of day.

    Via Raw Story, I see that Wilkerson is now saying he "participated in a hoax on the American people, the international community and the United Nations Security Council."

    Hoax. Farce. Tragedy. Yet the Cheerleader in Chief plays it like a Comedy.

    My guess? It's going to get very bad, very ugly. Worse than anything we've seen yet. The light at the end of the tunnel is only a mirage at this point.


  4. Thanks for the comments, folks.

    Lurch, I think you're right. They've been grasping for absolute power all along.


    Yeah, he's scary.


    I'll post later on how ugly I think it could get.

  5. I think what Yoo may be talking about (and I haven't read his writings) is what is traditionally known as a Political Question. The Courts have long held that when a branch of government uses a power specifically given to it. There are a number of factors involved in determining when a political question exists, the first of which is generally the ability to demonstrate, via the text of the Constitution, that the issue has been committed to a specific branch of government. For example, there was a federal judge impeached back in the early 90s. The judge appealed to the Supreme Court to reverse the Senate's decision, and the Supreme Court refused to look at the matter, saying it was a "political question" because the Constitution gives to the Senate the sole authority in impeachment.

    So what Foo may well be saying is that the President's exercise of plenary war powers is a political question, and therefore not reviewable by the Courts. The problem is, first you have to show that what the President is doing falls within his plenary powers. I think the President clearly serves as commander-in-chief and can direct the armed forces, but nowhere do I see the broad powers of detention that the Bush admin is claiming. That's not in the Constitution, and there's good evidence that the framers didn't want the President to have anything approaching that kind of power in war. So the political question doctrine argument doesn't work for me in this case.