Friday, June 09, 2006

Cheney Flies Under the Radar

Talk about convenient timing for the Bush administration.

Jammed off the radarscope this week by Ann Coulter's mouth and the demise of Abu Musab al-Zarqawi was the squaring off between Senator Arlen Specter (R-Pennsylvania) and Dick Cheney (unofficial master of the universe) over the NSA domestic spying investigation.

CNN and other news outlets reported Thursday that Specter "sent a stinging letter to Vice President Dick Cheney after learning Cheney had lobbied other Republicans on his committee without his knowledge."

Senate Judiciary Committee Chairman Specter is galled that Cheney's been breaking the legs of other Republican Judiciary Committee members to block subpoenas of phone company executives regarding the NSA domestic surveillance program.

It's difficult to determine whether Specter is actually upset that Cheney has been kneecapping fellow Republicans on Specter's committee, or if he's just upset that Cheney did the kneecapping without telling Specter about it.

Specter's three page letter said, "This was especially perplexing since we both attended the Republican senators caucus lunch yesterday, and I walked directly in front of you on at least two occasions en route from the buffet to my table."

Is Specter more concerned about buffet table protocol or about whether the Bush Administration is tossing Americans' constitutional rights in the trashcan in the name of "plenary" executive powers?

Whatever the case, the result is the same. The White House's claims to "unreviewable," absolute powers will go unchecked as long as the GOP owns the Senate and the House.

Springtime for Dubya

As I discussed last December in Smoke, Mirrors, and War Powers, the administration has consistently based its claims of supreme executive authority on the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in September 2001 days after the 9/11 attacks.

But the Constitution grants no such wartime authorities to any President. Article II makes him commander in chief--of the military, not the country. And that's it. The Constitution makes no mention of special powers in times of war, declared or undeclared.

Article I gives most of the actual war making powers to Congress.

The AUMF, often referred to as the "blank check," and claimed by the administration to have given young Mister Bush unlimited authority to do darn near anything he wants to the Constitution in the conduct of his war on terror, states that " Nothing in this resolution supercedes any requirement of the War Powers Resolution."

The War Powers Resolution, passed in 1973, says "Nothing in this joint resolution…is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties…"

And there's nothing in the Constitution that gives Congress the power to allow Presidents to exceed their constitutional authority.

We know that we can't trust the administration to check its own powers. And since the ultimate arbiter of what constitutes the law of the land is now Attorney General Alberto Gonzales, the Supreme Court has become, for all practical purposes, irrelevant.

And as long as Dick Cheney controls Congress, there's really no discernable difference between the United States in 2006 and, well, name your favorite historical tyranny.

Like Thomas Jefferson, I'd rather not get into heaven than have to go there as a member of a political party. And as I recall, I've only voted for one Democrat--John Kerry--in my entire life.

But I've more than gotten over my aversion to "Hollywood Democrats." For the foreseeable future, any time I have a choice between voting for a Republican or Porky Pig, I'm taking the pig.


This just in:

Glen Greenwald reports on a bill Specter introduced yesterday that, according to WaPo, "…would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law."

Specter's bill would also "…give President Bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the National Security Agency."

So Mister Bush gets an option as to whether he wants to obey the Constitution or not.

Yeah, Senator Specter. Go get 'em, tiger.


Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his weekday commentaries at ePluribus Media and Pen and Sword.


  1. navywife10:38 AM

    We have something in common. I have only voted for one democrat too, that being Kerry. But, I have never voted for a republican and as far as I can see, never will. The problem from what I can tell is that the "hollywood democrats" thing is mostly garbage. In my opinion, it is just another republican talking point. I say we should get rid of the republicans and the "hollywood dems", starting with Hillary, who is basically just republican lite anyway. I can't believe how far from what republicans and conservatives supposedly believe the administration can go with noone questioning it. Our government is the biggest it has ever been. The WH is constantly trying to take all power away from the states. We basically have a dictatorship under this republican majority government. The national debt is the highest it has ever been, etc, etc, etc...

  2. Yeah, the "Hollywood" thing is hogwash, but a lot of folks keep slopping it up.;-)

  3. navywife11:53 AM

    Btw, where would you recommend going for a SWO tour? Is there any place better than others?
    -wife of a soon to be O1E

  4. Navywife:

    Actually, people do question it. It comes down to whether a person is "republican" (i.e. partisan) or a "conservative."

    There is a book by Bruce Bartlett, for example, called "Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy." Bartlett is a well-known conservative economist and was an official in the Reagan admin.

  5. Jeff:

    Delegation of Powers is an interesting topic. There is no provision in the Constitution for the Legislative to delegate Legislative powers to the Executive, but the Legislative has increasingly done so over the last 100 years (and I don't think an instance of it has been found to be unconstitutional since the 1930s sometime). Since WWII they've arguably delegated some of their war powers as well.

    My view is that this delegation, particularly with respect to war powers, flies in the face of the intent of the Framers, who specifically wanted to avoid having a king-like executive who could wage war at a whim.

  6. Anonymous3:49 PM

    I voted for one Republican in my life: Mitt Romney. Never, ever again. I used to work at the same company as he. I voted for him because, though I didn't know him personally, he seemed like a good guy. Intelligent, fair, reasonable. Well, there went my faith in my skills of perception. Now the jackass gets a fine laugh on the conservative circuit, making fun of his constituents whenever he gets a chance. "Ha, ha, joke is on all the Mass liberals who voted for me, yuck, yuck, yuck."

    Hate to be pessimistic, but it's starting to look like having the right to vote will soon be a thing of the past. Will we look back on these days and say, "Remember when we used to have the luxury of choosing between the lesser of two evils?"


  7. I've never voted GOP for national office. I've voted for some for local office.

    A guy I know (acquaintance as well as client) is running against Jim Talent (R) this November, and I really hope he wins. He's a Democrat and, different from your Romney story, I know he's a good guy and would remain so if elected.

  8. Well, like I said, from now on, given a choice between a pig and a wolf, I'll take the pig.

    I'd rather get dirty than get eaten alive. ;-)

    (You voted for Mitt Romney? So sorry.;-)

  9. A quick comment on the amnesty provision - the Specter proposal does appear to grant amnesty on past illegalities under the program, but as far as Bush is concerned, does he even need it? He's got an Attorney General opinion that what he was doing isn't illegal. That provides him a good deal of protection against criminal prosecution.

  10. Anonymous6:30 PM

    Oh, I feel the depth of your sorrow, Jeff! :)

    My liberal CEO husband was convinced the Democratic candidate would run the state into the ground. I wasn't paying attention, all politicians seemed like crooks cut from the same cloth to me. I used to see Mr. Romney in the halls of the office, he was well-respected and carried himself with an air of finely-tuned decency. Ugh, I cannot even think about my naivete, makes me ill.

    Did you see the memo where Bush expresses relief that Brown was receiving the blame for the Katrina failures? He expresses gratitude to Brown for "diverting hostile fire from the leader." The Leader.


  11. Anonymous11:37 AM

    Actually, if Bush has a legal opinion that what he was doing was legal, that only relieves him of any crime that requires intent. Some actions are crimes even if you were trying to act the Good Samaritan.

    As to the Democrat/Republican quandry, the answer is that we all need to be more involved in this democracy. The internet, if net neutrality survives, might be a way for more individuals be better informed and to make there voices heard. If we want democracy to survive, we have to be more active in finding better candidates and in holding our representatives' feet to the fire. Party affiliation is not qualification for office.

    Someone recently suggested the idea that we need big government as a counterweight to big business. I don't know about that, but I certainly can see the influence of big business on government. Our representatives are more responsive to their business constituents than their individual citizens. On that score I'd rather see measures put in place to restrict corporate political action rather than an increase in the number of government employees. Something like zero corporate contributions to political parties, government office holders and candidates. And much more public disclosure and restriction on trade group and lobbyist funding sources.

    Of course, the current administration probably would choose not to enforce that law....

  12. On legal opinion

    We're back to my long ago analogy that if I hire a lawyer to tell me anything I do is legal, am I going to get away with that defense in court? No.

    But that's the way our current administration is working things.

  13. Anonymous:

    All criminal law has an intent requirement. Sometimes it is a general rather than specific intent.


    The difference here is that he's not just hiring any lawyer to tell him what he wants, we're talking about the highest law enforcement official in the nation.

    One of the keys to criminal law is notice - the idea that a person has a good idea what they are doing is a crime. Because of that, people are entitled to rely on official statements regarding what is a crime. You can get, for example, advisory opinions from some State attorneys general. You can give them a set of facts and they'll tell you if what you're doing is a crime. If a court later comes to a different conclusion, as a citizen you are entitled to rely on that pronouncement from the AG.

    If Bush were hiring some private attorney, then he wouldn't be able to make this argument - which is what is happening in your analogy, Jeff. But instead of just hiring an attorney, he has a written opinion from the Attorney General of the nation. That provides pretty broad cover, because the highest official in charge of enforcing criminal law has just told you you aren't breaking the law. You've got to remember that the AG isn't Bush's personal lawyer. Bush has other counsel for that. The AG is a government official making a pronouncement, in this case, on law.

  14. Navywife9:31 PM

    But what happens when the AG makes a statement to the president that reflects his opinion that the current law passed by Congress can be completely ignored? Would a more proper channel for the administration not be to challenge the applicability of the law in front of the courts so that a theoretically non-partisan judicial group can make a decision on the applicability of the law? Or maybe go to Congress and request a change in the existing law to accomodate the president's wishes?

    A bill was proposed several years ago that would have amended FISA to give the president the power he used, enshrined in law and everything. The AG office's opinion was that it would be unnecessary or unconstitutional to pass such a law, even though he then told the president to go ahead with that same program anyway. Is there any precedent for this kind of action? I am not familiar with one. I believe the Nixon administration showed us that a belief in the president's inability to break the law, simply because he is the president, was flawed. This is the crux of the AG's argument, because he is the president, he is allowed to do this if he feels the need to, regardless of what Congress or his own advisors say to the contrary. I would suggest that if all a president needs to do is pick a lawyer/yes-man who will tell him everything he wants to hear, and that makes everything he does OK, then that brings us closer to the "king-like executive" you spoke against earlier. The system ought to have something built into it to remove potential for this gross level of abuse of power.

    Anyway, as far as I understand the situation, you can't indict a sitting president. You have to impeach him and remove him from office first. Is Specter's amnesty proposal a shield against criminal prosecution only, or would it protect against impeachment proceedings as well? Perhaps someone should suggest to Specter that anyone providing cooperation and testimony would receive amnesty, rather than a blanket statement. That kind of language may find people lining up around the block to testify to congress.

  15. Specter's comprising with his own party. He ought to just stand up and rat on all of them.

  16. Navywife:

    You present a good question, which basically boils down to one of two questions: 1) what happens if the AG is wrong; or 2) what if he is intentionally wrong.

    In the first instance, a person can generally rely on the AG, and if he later turns out to be wrong, then that reliance still protects the person. If you step away from the specific situation of GW Bush, you can see where it makes sense. Say you run a business, for example, and you run into some issue that deals with a nuance of securities law and you're not sure if a proposed action violates that law. If you were to get an advisory opinion from the AG saying the action did not violate the law, then it wouldn't be fair to later prosecute you criminally if it turns out the AG was wrong.

    But the situation with Bush might be more akin to question 2, because despite the fact that the AG isn't Bush's attorney, there is a strong relationship between the two. I suppose if this specific issue came up and I were Bush's lawyer, I'd argue he's entitled to rely on the AG's legal opinion, but if I were the lawyer on the other side, I'd say that Bush and the AG essentially colluded to produce an opinion, and that therefore Bush's reliance on that opinion wasn't reasonable (i.e. he knew it wasn't an objective opinion of law) and therefore Bush shouldn't be able to shield himself.

    Also, I agree with you that allowing the President to use such an opinion as a shield when he appoints the AG does bring us closer to the king-like situation we want to avoid, which is another reason I'd argue he should not, as a policy, be allowed to rely on the opinion (and after all the whole thing boils down to a public policy issue - in the case of a private citizen it is good public policy to allow (and encourage) them to rely on opinions of the AG).

    As far as I know this has never come up with respect to a President. The case law in this area deals with more or less ordinary citizens being able to rely on official opinions of government officials.

    As for the Constitutional aspect of it, a Constitutional violation isn't generally a criminal offense, so I'm not sure how that would play out either.

    I'd be surprised if Bush were ever indicted for anything that went on under this administration. I do think that for the NSA spying he ought to be, if there's a way to do it, and he ought to be impeached and removed. I'm not holding my breath, however.

  17. Navywife:

    One last thing - as to whether Specter's amnesty would protect against impeachment, I don't think so. I'd have to read the proposed Bill (and I can't find it), but it seems to me it is directed at criminal prosecutions, and is directed to people under the President.