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roachboy · 12-21-2005, 09:08 AM

Quote:

Clash Is Latest Chapter in Bush Effort to Widen Executive Power

By Peter Baker and Jim VandeHei
Washington Post Staff Writers
Wednesday, December 21, 2005; A01

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.

From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney's encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

But the disclosure of Bush's eavesdropping program has revived the issue, and Congress appears to be growing restive about surrendering so much of its authority. Democrats and even key Republicans maintain Bush went too far -- and may have even violated the law -- by authorizing the National Security Agency to eavesdrop on U.S. citizens' overseas telephone calls in search of terrorist plots without obtaining warrants from a secret intelligence court.

The vice president entered the fray yesterday, rejecting the criticism and expounding on the philosophy that has driven so many of the administration's actions. "I believe in a strong, robust executive authority, and I think that the world we live in demands it -- and to some extent that we have an obligation as the administration to pass on the offices we hold to our successors in as good of shape as we found them," Cheney said. In wartime, he said, the president "needs to have his constitutional powers unimpaired."

Speaking with reporters traveling with him aboard Air Force Two to Oman, Cheney said the period after the Watergate scandal and Vietnam War proved to be "the nadir of the modern presidency in terms of authority and legitimacy" and harmed the chief executive's ability to lead in a complicated, dangerous era. "But I do think that to some extent now we've been able to restore the legitimate authority of the presidency."

For Cheney, the post-Watergate era was the formative experience shaping his understanding of executive power. As a young White House chief of staff for President Gerald R. Ford, he saw the Oval Office at its weakest point as Congress and the courts asserted themselves. But scholars such as Andrew Rudalevige, author of "The New Imperial Presidency," say the presidency had recovered long before Cheney returned to the White House in 2001. The War Powers Act, the legislative veto, the independent counsel statute and other legacies of the 1970s had all been discarded in one form or another.

"He's living in a time warp," said Bruce Fein, a constitutional lawyer and Reagan administration official. "The great irony is Bush inherited the strongest presidency of anyone since Franklin Roosevelt, and Cheney acts as if he's still under the constraints of 1973 or 1974."

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

The tug over executive power traces back to the early years of the republic, and presidents have traditionally moved to expand their reach during times of war. John Adams, fearing a hostile France, presided over the imprisonment of Republican critics under the Alien and Sedition Acts. Abraham Lincoln suspended habeas corpus during the Civil War. Woodrow Wilson jailed Socialist Eugene V. Debs, who had run against him for president, for protesting the entry into World War I. Franklin D. Roosevelt sent Japanese Americans to internment camps during World War II. And Ronald Reagan circumvented a Cold War congressional ban on providing aid to contra rebels in Nicaragua.

The Bush administration rejects comparisons to such events and says its assertions of authority in response to the Sept. 11, 2001, terrorist attacks have been carefully tailored to meet the needs of a 21st-century war against a nebulous foe. At his news conference Monday, Bush bristled at the notion that he sought "unchecked power" and said he had consulted with Congress extensively.

Yet Bush supporters believe that other branches should take a subsidiary role to the president in safeguarding national security. "The Constitution's intent when we're under attack from outside is to place maximum power in the president," said William P. Barr, who was attorney general under President George H.W. Bush, "and the other branches, and especially the courts, don't act as a check on the president's authority against the enemy."

Even before the NSA surveillance program, the Bush administration has asserted its war-making authority in detaining indefinitely U.S. citizens as enemy combatants, denying prisoners access to lawyers or courts, rejecting in some cases the applicability of the Geneva Conventions, expanding its interrogation techniques to include harsher treatment and establishing secret terrorist prisons in foreign countries.

"The problem is, where do you stop rebalancing the power and go too far in the other direction?" asked David A. Keene, chairman of the American Conservative Union. "I think in some instances [Bush] has gone too far."

Taken alone, the expansion of executive wartime power may seem an obvious outflow of confronting the new threat of global terrorism. But when coupled with the huge expansion of the federal government in general under Bush -- the budget has grown by 33 percent and his administration has broadened the federal role in education and the scope of Medicare -- a growing number of conservatives are expressing concern about the size and reach of government on his watch.

Many conservatives in Congress came to office in the 1980s and 1990s with visions of shrinking government and protecting individual freedoms. The Sept. 11 attacks, however, prompted Republicans to shift their priorities and emphasize fighting terrorism. With both houses of Congress in Republican hands, lawmakers generally have been willing to yield to Bush's views on the balance of power.

"Defending the country is preeminently an executive function," said Rep. Tom Cole (R-Okla.). "He is the commander in chief, and you have to move with speed and dispatch."

At the same time, some believe, Congress has abrogated its duty to provide a check on the White House. Rarely has the Republican Congress used its subpoena power to investigate Bush policies or programs or to force administration officials to explain them. Even when lawmakers are inclined to challenge the White House, they are restricted by secrecy rules in cases such as the NSA program, which was known to only a handful of key members briefed by the administration.

"When you have unified party government, the oversight tends to be very timid," said James A. Thurber, director of the Center for Congressional and Presidential Studies at American University. "It's not just the president pushing for more power. . . . The Congress has not done its job of careful evaluation of giving the president more power post-9/11."

Thurber and others think that may be changing. Led by Sen. John McCain (R-Ariz.), Congress just forced Bush to accept a ban on cruel, inhuman and degrading treatment of prisoners, and a handful of Republican senators have joined Democrats to block the renewal of the USA Patriot Act until more civil liberties protections are built into the law. "Congress needs to do some introspection about whether oversight is serious or basically political," Cole said

Sen. Lindsey O. Graham (S.C.) is one of several Republicans lobbying Bush to use the debate over NSA to work with Congress on striking the right balance of power on security issues. "The question is: Should the administration and Congress sit down and talk about where presidential authority begins and ends and congressional blessing begins and ends?" he said. "I think yes."

funny how much more certain the conservatives are here about the illusion that this is all hunky dory and that they have sorted out all legal issues than are the actual people involved with this.
it is also interesting to watch how the right defenses modulate: cheney talks yesterday in terms of a longer-term view of executive power and here you have the conservatives here taking the same line.
"sponteneously" of course.

the argument about executive power as the right woudl frame it here is a non sequitor in general and false in its particulars. superbelt pointed out the main flaws already. typically, these do not register with the right, which persists in its usual lather rinse repeat mode.

in the real world, there is no such certainty:

Quote:

Spy Court Judge Quits In Protest
Jurist Concerned Bush Order Tainted Work of Secret Panel

By Carol D. Leonnig and Dafna Linzer
Washington Post Staff Writers
Wednesday, December 21, 2005; A01

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.

Word of Robertson's resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency's warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.

Sens. Chuck Hagel (Neb.) and Olympia J. Snowe (Maine) echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.

Hagel and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by the Senate judiciary and intelligence panels into the classified program.

The hearings would occur at the start of a midterm election year during which the prosecution of the Iraq war could figure prominently in House and Senate races.

Not all Republicans agreed with the need for hearings and backed White House assertions that the program is a vital tool in the war against al Qaeda.

"I am personally comfortable with everything I know about it," Acting House Majority Leader Roy Blunt (R-Mo.) said in a phone interview.

At the White House, spokesman Scott McClellan was asked to explain why Bush last year said, "Any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." McClellan said the quote referred only to the USA Patriot Act.

Revelation of the program last week by the New York Times also spurred considerable debate among federal judges, including some who serve on the secret FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

Robertson is considered a liberal judge who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld . Robertson held in that case that the Pentagon's military commissions for prosecuting terrorism suspects at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.

Some FISA judges said they were saddened by the news of Robertson's resignation and want to hear more about the president's program.

"I guess that's a decision he's made and I respect him," said Judge George P. Kazen, another FISA judge. "But it's just too quick for me to say I've got it all figured out."

Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or from seeking outside legal opinions.

Sen. John D. Rockefeller IV (D-W.Va.) revealed Monday that he had written to Vice President Cheney the day he was first briefed on the program in July 2003, raising serious concerns about the surveillance effort. House Minority Leader Nancy Pelosi (D-Calif.) said she also expressed concerns in a letter to Cheney, which she did not make public.

The chairman of the Senate Select Committee on Intelligence, Pat Roberts (R-Kan.), issued a public rebuke of Rockefeller for making his letter public.

In response to a question about the letter, Sen. John McCain (R-Ariz.) suggested that Rockefeller should have done more if he was seriously concerned. "If I thought someone was breaking the law, I don't care if it was classified or unclassified, I would stand up and say 'the law's being broken here.' "

But Rockefeller said the secrecy surrounding the briefings left him with no other choice. "I made my concerns known to the vice president and to others who were briefed," Rockefeller said. "The White House never addressed my concerns.

source: http://www.washingtonpost.com/wp-dyn...122000685.html

but whatever--this is obviously only in a small measure about information and its evaluation, and in much greater measure about how hard folk on the right find it to introduce ANYTHING critical of the bush people into their political lanscape. sad, really.