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Banned
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I won't sleep soundly through a single night until they're both tried in the senate, resign, or complete their terms on Jan. 20, 2009:
Quote:
http://www.nytimes.com/2007/05/02/wa...prod=permalink
Administration Pulls Back on Surveillance Agreement
By JAMES RISEN
Published: May 2, 2007
WASHINGTON, May 1 — Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.
Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.
As a result of the January agreement, the administration said that the National Security Agency’s domestic spying program has been brought under the legal structure laid out in the Foreign Intelligence Surveillance Act, which requires court-approved warrants for the wiretapping of American citizens and others inside the United States.
But on Tuesday, the senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants. click to show
During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.
“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”
The administration had earlier argued that both the president’s inherent executive powers under Article II of the Constitution, as well as the September 2001 Congressional authorization to use military force against Al Qaeda, provided him with the power to conduct surveillance without warrants.
Mr. McConnell emphasized that all domestic electronic surveillance was now being conducted with court-approved warrants, and said that there were no plans “that we are formulating or thinking about currently” to resume domestic wiretapping without warrants.
“But I’d just highlight,” he said, “Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide.”
The exchange came as the administration is seeking new legislation to update the surveillance act to expand the government’s surveillance powers, in part to deal with vast changes in communications technology since 1978, when the measure was enacted.
The White House says that the outmoded rules embedded in the law mean that the government cannot eavesdrop on some telephone calls, e-mail and other communications that do not involve Americans or impinge on the privacy rights of people inside the United States.
While administration officials, citing national security concerns, have declined to discuss publicly what communications gaps they wish to plug, their proposed legislation seems designed to single out so-called “transit traffic,” purely international telephone calls and e-mail that go from one foreign country to another, but happen to be digitally routed through the United States telecommunications system.
The administration’s proposal would also provide legal immunity for telecommunications companies that cooperated with the National Security Agency’s surveillance program without warrants before it was brought under the surveillance act in January. It would also provide legal protections for government workers who took part in the N.S.A. program.
“To this day, we have never been provided the presidential authorization that cleared that program to go or the attorney general-Department of Justice opinions that declared it to be lawful,” said Senator Sheldon Whitehouse, Democrat of Rhode Island. “Where’s the transparency as to the presidential authorizations for this closed program? That’s a pretty big ‘we’re not going to tell you’ in this new atmosphere of trust we’re trying to build.
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Quote:
http://opinionjournal.com/federation.../?id=110010014
OPINIONJOURNAL FEDERATION
The Case for the Strong Executive
<b>Under some circumstances, the rule of law must yield</b> to the need for energy.
BY HARVEY C. MANSFIELD
Wednesday, May 2, 2007 12:01 a.m. EDT
.....Only a strong president can be a great president. Americans are a republican people but they admire their great presidents. Those great presidents--I dare not give a complete list--are not only those who excelled in the emergency of war but those, like Washington, Lincoln and Franklin Roosevelt, who also deliberately planned and executed enterprises for shaping or reshaping the entire politics of their country.
This admiration for presidents extends beyond politics into society, in which Americans, as republicans, tolerate, and appreciate, an amazing amount of one-man rule. The CEO (chief executive officer) is found at the summit of every corporation including universities. I suspect that appreciation for private executives in democratic society was taught by the success of the Constitution's invention of a strong executive in republican politics.
The case for a strong executive begins from urgent necessity and extends to necessity in the sense of efficacy and even greatness. It is necessary not merely to respond to circumstances but also in a comprehensive way to seek to anticipate and form them. "Necessary to" the survival of a society expands to become "necessary for" the good life there, and indeed we look for signs in the way a government acts in emergencies for what it thinks to be good after the emergency has passed. A free government should show its respect for freedom even when it has to take it away. Yet despite the expansion inherent in necessity, the distinction between urgent crises and quiet times remains. Machiavelli called the latter tempi pacifici, and he thought that governments could not take them for granted. What works for quiet times is not appropriate in stormy times. John Locke and the American Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong executive.
In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17th-century natural public law; it is an order as natural as the state of nature from which it emerges. In this view liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost.
But Locke was a wiser liberal. His institutions were "constituted," less by creation than by modification of existing institutions in England, but not deduced as invariable consequences of disorder in the state of nature. He retained the difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties, more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary.
The lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. "Civil liberties" belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.
The American Constitution is a formal law that establishes an actual contention among its three separated powers. Its formality represents the rule of law, and the actuality arises from which branch better promotes the common good in the event, or in the opinion of the people. In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong. In judging the circumstances of a free society, two parties come to be formed around these two outlooks. These outlooks may not coincide with party principles because they often depend on which branch a party holds and feels obliged to defend: Democrats today would be friendlier to executive power if they held the presidency--and Republicans would discover virtue in the rule of law if they held Congress.
The terms of the disagreement over a strong executive go back to the classic debate between Hamilton (as Pacificus) and Madison (as Helvidius) in 1793-94. Hamilton argued that the executive power, representing the whole country with the energy necessary to defend it, cannot be limited or exhausted. Madison replied that the executive power does not represent the whole country but is determined by its place in the structure of government, which is executing the laws. If carrying on war goes beyond executing the laws, that is all the more reason why the war power should be construed narrowly. Today Republicans and Democrats repeat these arguments when the former declare that we are at war with terrorists and the latter respond that the danger is essentially a matter of law enforcement.
As to the contention that a strong executive prompts a policy of imperialism, I would admit the possibility, and I promise to think carefully and prayerfully about returning Texas to Mexico. In its best moments, America wants to be a model for the world, but no more. In its less good moments, America becomes disgusted with the rest of the world for its failure to imitate our example and follow our advice. I believe that America is more likely to err with isolationism than with imperialism, and that if America is an empire, it is the first empire that always wants an exit strategy. I believe too that the difficulties of the war in Iraq arise from having wished to leave too much to the Iraqis, thus from a sense of inhibition rather than imperial ambition.
Mr. Mansfield is William R. Kenan Professor of Government at Harvard.
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