Be sure to read “Extraordinary Measures: A new memo shows just how far the Bush administration considered going in fighting the war on terror” by Michael Isikoff. See also “George W. Bush’s Disposable Constitution” by Scott Horton and “The newly released secret laws of the Bush administration” by Glenn Greenwald.
Yesterday the House broke for a week’s recess without renewing the terrorist surveillance authority — the so-called “Protect America Act” — in spite of President Bush’s warnings that failure to renew the act would leave America vulnerable to terrorist attacks.
What can one even say about this quote, included in Carl Hulse’s NYT article on the Democrats’ refusal yesterday to pass the Senate’s FISA bill before expiration of the Protect America Act:
“I think there is probably joy throughout the terrorist cells throughout the world that the United States Congress did not do its duty today,” said Representative Ted Poe, Republican of Texas.
This is the kind of pure, unadulterated idiocy — childish, cartoonish and creepy — that Democrats for years have been allowing to bully them into submission, govern our country, and dismantle our Constitution. Outside of Andy McCarthy, Mark Steyn and their roving band of paranoid right-wing bloggers who can’t sleep at night because they think (and hope) that there are dark, primitive “jihadi” super-villains hiding under their beds — along with the Very Serious pundit class which proves their Seriousness by placing blind faith in the fear-mongering pronouncements and demands of our military and intelligence officials for more unchecked power — nobody cares about adolescent Terrorist game-playing like this any longer. In the real world, it doesn’t work, and it hasn’t worked for some time.
Hindrocket the Power Tool dutifully trots out the standard spin:
About national security, that is. Over the last 36 hours, Congressional Democrats have again demonstrated a casual, even frivolous attitude toward their Constitutional duty to assist in keeping Americans safe from attack.
As Jesus’ General says, expiration of the PAA puts our National Security services in a terrible bind. “It forces our them to partially comply with the Fourth Amendment to the Constitution.” I feel vulnerable already.
Also this week the Senate passed a bill that would ban torture. Dan Froomkin wrote yesterday:
Who are we as a nation? Are we who we used to be? Did one terrorist attack really change all that? Can it be changed back?
Those, at heart, are the questions raised by the Senate’s passage yesterday of a bill that would ban harsh interrogation tactics used by the CIA — a bill already passed by the House, and a bill President Bush has vowed to veto.
The debate is not just about waterboarding. It’s about whether other tactics — such as prolonged exposure to freezing temperatures, forced nudity, sexual humiliation, mock executions, the use of attack dogs, the withholding of food, water and medical care and the application of electric shocks — should be part of our official interrogation toolkit.
Whether you call them torture or not, they are undeniably cruel. They are undeniable assaults on human dignity.
They are all prohibited by the Army Field Manual, which covers all military interrogations. They are all off limits to the FBI. Now Congress wants the CIA to adhere to the same restrictions.
But Bush says no.
The propagation of our values has long been a hallmark of American foreign policy. Chief among those values has been respect for human dignity. But the message we’ve been sending lately is altogether different. How can we tell other countries to respect human dignity when we have made it optional for our own government? When our official policy is that the ends justify the means?
Um, when the Wingnuts took over? Just a guess.
If you looking for something to read, go to Newsweek.com and read about “Bush’s Monica Problem.” See also Christy’s comments.
This article clarifies much about the Bush Justice Department that was hazy to me, including the role played by John Yoo. It also reveals there was a major standoff between the Justice Department and the White House over warrantless wiretapping, with as many as 30 top DoJ officials threatening to resign.
I’m only going to quote a couple of paragraphs —
Bush’s role has remained shadowy throughout the controversy over the eavesdropping program. But there are strong suggestions that he was an active presence. On the night after Ashcroft’s operation, as Ashcroft lay groggy in his bed, his wife, Janet, took a phone call. It was Andy Card, asking if he could come over with Gonzales to speak to the attorney general. Mrs. Ashcroft said no, her husband was too sick for visitors. The phone rang again, and this time Mrs. Ashcroft acquiesced to a visit from the White House officials. Who was the second caller, one with enough power to persuade Mrs. Ashcroft to relent? The former Ashcroft aide who described this scene would not say, but senior DOJ officials had little doubt who it wasâ€”the president. (The White House would not comment on the president’s role.) Ashcroft’s chief of staff, David Ayres, then called Comey, Ashcroft’s deputy, to warn him that the White House duo was on the way. With an FBI escort, Comey raced to the hospital to try to stop them, but Ashcroft himself was strong enough to turn down his White House visitors’ request.
The morning after the scene at Ashcroft’s hospital bed, the president met with Comey. “We had a full and frank discussion, very informed. He was very focused,” Comey later testified, choosing his words carefully. But it wasn’t until Bush had met with Mueller that the president agreed to take steps (still unspecified, but probably involving more oversight) to bring the eavesdropping program back inside the boundaries of the law. Mueller has never said what he told the president, but it is a good bet that he said he would resign if the changes were not made. Bush could not afford to see Mueller go, nor could he risk losing the rest of the Justice Department leadership over a matter of principle in an election year.
After this, a noticable chill set in between Ashcroft’s team at DoJ and the White House. Over the next few months Ashcroft and several other top DoJ officials decided to spend more time with their families. The article suggests that in Ashcroft’s case this was not entirely voluntary.
Solicitor General Ted Olson was also out, either voluntarily or otherwise. Remember, Olson personally represented Bush in the Bush v. Gore SCOTUS case. He also provided assistance to Paula Jones’s legal team in their case against President Clinton, and was a big public cheerleader for Kenneth Starr and his witch hunts. More recently Olson signed off on Wolfie’s girlfriend’s compensation package. If Olson isn’t a team player, I don’t know who is. Yet even he bailed out of the DoJ.
Update: Emptywheel says the Newsweek story gets the time frame wrong:
The hospital confrontation happened on March 10. The pact to resign may have happened on March 10 or 11 (Comey had a resignation letter dated March 10, but Ashcroft’s chief of staff persuaded him to hold off until Ashcroft could resign at the same time). March 11 was the day of the Madrid train bombings which didn’t, Chuck Schumer made sure to point out, dissuade Comey from resigning. And the discussion between Bush and Comey and, then, Mueller, happened on March 12.
So who cares? Why worry about the dates?
Simply, because by collapsing this two day period into one, you avoid noting one of the most important parts of this story: on his own authority, Bush reauthorized the program without the support from DOJ. The program operated for at least 24 hours without even the promise of changes to satisfy the DOJ.
Maybe this is just sloppy editing. But given that Isikoff had a hand in this article, I find it troubling that a narrative trying to tie all these events together ignores Bush’s clear contempt for the law (it does, however, provide a useful description of Bush’s role in calling Mrs. Ashcroft to get Gonzales and Card admitted into the hospital). It’s not just that Gonzales and Card attempted to override Comey’s acting authority, this story is primarily about Bush’s role overriding the counsel of those paid to offer that counsel.
The Newsweek story also allows a Bushie shill to have the next-to-last word:
Goodling’s only crime was her lack of subtlety, said Mark Corallo, the Justice Department’s chief of public affairs under Ashcroft, and Goodling’s onetime boss. “She probably was a little too overt about it,” Corallo told NEWSWEEK. “But let’s face itâ€”the Democrats do this, too, they all do it. The idea that career employees are above politics is total crap. The so-called career employees are mostly liberal Democrats.” He noted that in the U.S. Attorney’s Office in San Francisco, career employees refused for months to hang portraits of Bush, Cheney and Ashcroft.
Emptywheel questions whether U.S. Attorney’s offices normally feature photos of the vice president. And she asks, “Were career prosecutors objecting to one picture, presumably replacing pictures of Bill Clinton and Janet Reno? Or were career prosecutors objecting to the kind of hagiography that brought down the Soviet Union?”
That’s a story I’d like to hear.
Update 2: Knee slapper du jour — “Seriously, if Ann Coulter had been born a girl, she’d probably look something like Monica Goodling.”
Think Progress has transcript and video of President Bush refusing to answer a direct question about whether he ordered the night visit to John Ashcroft’s hospital room. Then he then dredged up a mass of old and mostly debunked talking points (e.g., that Congress was “fully briefed”) to defend the blatantly unconstitutional program.
Just look to see how pathetic it is.
Back in those happy days in the 90s, if Clinton had refused to answer a question like this a shitstorm would’ve erupted. Ted Koppel would’ve put up a “17 days and still no answer” clock. Tweety would have had 37 blond conservative lawyers on every night to demand “accountability.” etc… etc…
See also Digby.
James Comey’s testimony amounts to a statement that — even according to the administration’s own loyal DOJ officials — the President ordered still-unknown spying on Americans, and engaged in that spying for a full two-and-a-half-years, that was so blatantly and shockingly illegal that they were all ready to resign over it. And the President’s Attorney General then lied to ensure that this episode remain concealed. Mere one-day calls for a Congressional investigation are woefully inadequate here.
There is clear and definitive evidence of deliberate lawbreaking. In addition to Congressional investigations, there is simply no excuse for anything other than the immediate commencement of a criminal investigation by a Special Prosecutor. And the administration ought to be pressured every day to account for what it did here. This is not a one-day or one-week fleeting scandal. These revelations amount to the most transparent and deliberate crimes — felonies — by our top government officials, not with regard to private and personal matters but with regard to how our government spies on us.
We’ve gone way past asking if Bush has done anything illegal enough to deserve impeachment. Seems to me we’ve got a whole smorgasbord of criminal activities to choose from. However, even if we could get a vote of impeachment in the House, it would be a waste of time if we can’t get a conviction in the Senate. And that requires a two-thirds vote. That would be about 16 more votes than there are Democrats in the Senate. And we can kiss off Lieberman. We aren’t there yet.
And then, of course, there’s the Cheney problem.
This morning I wrote that too many people were focusing on what Alberto Gonzales did wrong instead of the fact that Gonzo doesn’t sneeze until Bush tells him too.
Fred Hiatt’s editorial in today’s Washington Post is a little stronger than yesterday’s, which focused almost exclusively on Gonzales. Hiatt seems to be waking up to the reality that some seriously screwed up shit is going on in the White House. But he’s still not acknowledging that Alberto Gonazles and Andy Card wouldn’t have made the night ride to John Ashcroft’s hospital unless they knew the Boss wanted it done.
Christopher Dodd and other Dem senators want a vote of no confidence in Gonzales from the Senate. Apparently a number of Republicans might go along with this. I don’t disagree, but I don’t think the Senate can force Gonzales out. I’m not sure that, by itself, it would have any effect. I don’t think the Senate can order Gonzales to resign. However, anything that further isolates Bush from everyone else in Washington, including Republicans, is a step in the right direction.
[Update: I just heard Wolfowitz finally resigned from the World Bank. About time. Andrea Mitchell is on MSNBC right now saying that the White House was forced to go along. I may have more to say about this later.]
I’ve just learned that the Supreme Court upheld the national “partial birth” abortion ban passed by Congress in 2003. The five justice who made up the majority are Scalia, Thomas, Roberts, Alito, and Kennedy.
The repercussions of this ruling will depend a great deal on how the various states interpret the ban. Physicians have complained that the ban, as it is worded, could be interpreted to ban just about any type of abortion. If that’s the case, I think this will bring about a huge public backlash against the Fetus People, which is something I don’t think they realize.
On the other hand, if it is interpreted to ban only the dilatation and evacuation (D&E) procedure, which is commonly used in the second trimester, then nearly 90 percent of abortions, performed in the first trimester using other methods, would not be affected. And second trimester abortions would still be performed, but by other means that pose greater risk to women. Even so, abortions performed by physicians in sterile environments would not likely result in the carnage that a return to “back alley” abortions would cause. It’s hard to know if a ban on D&E only would create much of a public stir at all.
But I think we can count on conservative state legislators to go for the more expansive interpretation of the ruling. I’m sure that many Red State politicians are busily writing up new and more oppressive abortion laws that go beyond today’s ruling even as I keyboard, and I strongly suspect this ruling has just opened a big can of damn ugly worms.
The American College of Obstetricians and Gynecologists (ACOG) filed an amicus brief in support of the challenge to the ban. I’m going to paste an ACOG press release about the brief here, because I think it explains the issues clearly.
For Release: September 22, 2006
ACOG Files Amicus Brief in Gonzales v. Carhart and Gonzales v. PPFA
Washington, DC — The American College of Obstetricians and Gynecologists (ACOG) has filed an amicus brief in support of the challenges to the federal Partial-Birth Abortion Ban Act of 2003. The United States Supreme Court will hear arguments on November 8, 2006, in two cases that dispute the constitutionality of the Act, which was passed by Congress and signed into law by President Bush in November 2003. The ban has not taken effect because of the legal challenges.
Almost immediately after the Act was signed into law by President Bush, physicians and medical groups filed three separate lawsuits challenging it in federal courts in New York, Nebraska, and California. In each case, the court ruled the Act unconstitutional and the decision was upheld on appeal. The government subsequently sought review of two of the cases by the US Supreme Court: Gonzales v. Carhart (Nebraska) and Gonzales v. Planned Parenthood Federation of America (PPFA) (California). Any further appeals in the New York case would be initiated after the US Supreme Court rules on the Nebraska and California cases. [I assume this is moot now — maha]
“The courts were correct each time they struck down such ill-conceived and unconstitutional restrictions on physicians’ ability to provide patients with the safest possible medical care,” according to Douglas W. Laube, MD, MEd, president of ACOG.
The Act purports to ban so-called “partial-birth abortions;” however, “partial-birth abortion” is not a medical term and is not recognized in the field of medicine. The Act defines “partial-birth abortion” in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman’s uterus. The Act’s definition also encompasses some D&E procedures in which the fetus is not removed intact.
Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.
The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women’s health, authoritative medical texts, peer-reviewed studies, and the nation’s leading medical schools. ACOG has thus concluded that an intact D&E “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman’s particular circumstances can make that decision.” [ACOG Statement of Policy on Abortion (reaffirmed 2004)]
ACOG objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women’s health. In addition, ACOG objects to the Act’s vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.
“The term ‘partial-birth abortion’ was purposely contrived to be inflammatory,” said Dr. Laube. “While proponents of this law say that it addresses a particular procedure, it has been specifically written to describe and encompass elements of other procedures used in obstetrics and gynecology.”
In 2000, ACOG filed an amicus brief in Stenberg v. Carhart on behalf of the challengers to a Nebraska law that attempted to ban so-called “partial-birth abortions.” The US Supreme Court struck down the Nebraska law, ruling that it violated the US Constitution by failing to provide any exception “for the preservation of the health of the mother” and being so broadly written that it could prohibit other types of abortion procedures such D&E, thereby unduly burdening a woman’s ability to choose to have an abortion.
“Decisions involving pregnancy termination are among the most serious and personal that a woman will make in her life. As the medical specialists in women’s reproductive health, we will continue to fight attempts to criminalize legitimate medical procedures,” said Dr. Laube.
# # #
The American College of Obstetricians and Gynecologists is the national medical organization representing over 51,000 members who provide health care for women.
Justice Ruth Bader Ginsburg, speaking in the courtroom for the dissenters, called the ruling “an alarming decision” that refuses “to take seriously” the Court’s 1992 decisions reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.
Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”
That final comment, concluding remarks delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently imposed that it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.
In the course of her dissenting opinion, Ginsburg accused the majority of offering “flimsy and transparent justifications” for upholding the ban. She also denounced the Kennedy opinion for its use of “abortion doctor” to describe specialists who perform gynecological services, “unborn child” and “baby” to describe a fetus, and “preferences” based on “mere convenience” to describe the medical judgments of trained doctors. She also commented: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that cdould yield prohibtions on any abortion.”
I have a lot of questions about today’s ruling. For example if the Court has affirmed an abortion law that doesn’t have a “life and health of the mother” clause, what does that do to Roe v. Wade?
And may I say that if even one woman dies or is needlessly impaired because the government has “tied the hands” of physicians, it’s an injustice.
Emails and faxes are good, too.
Update: ABC News —
A Democratic-led congressional panel defied President George W. Bush on Wednesday and authorized legal orders to force several White House aides to testify under oath about the firing of eight U.S. prosecutors.
Subpoenas! Here’s the news release from the House Judiciary Committee.
Judiciary Subcommittee Authorizes Chairman Conyers to Issue Subpoenas in US Attorney Investigation
(Washington, DC)- Today, the House Judiciary Commercial and Administrative Law Subcommittee (CAL) voted to authorize the full committee Chairman John Conyers, Jr. (D-MI) to issue subpoenas for current and former White House and Justice Department officials Karl Rove, Harriet Miers, William Kelley, Scott Jennings and Kyle Sampson, as well as documents that the Committee has not yet received.
â€œThe White Houseâ€™s offer provides nothing more than conversations. It does not allow this Committee to get the information we need without transcripts or oaths,â€ Conyers said. â€œThis motion allows the Committee to pursue good faith negotiations. We are continuing our talks with the White House, along with the Senate, but we must protect the interest of the Congress and the American people by maintaining the option to move forward with our investigation with or without continued cooperation from the Administration.â€
â€œWe have worked toward voluntary cooperation, but we have to prepare for the possibilty that the White House will continue to hide the truth,â€ said CAL Subcommittee Chairwoman Linda SÃ¡nchez. â€œThis Congress respects White House prerogatives as a safeguard for the internal deliberations on the legitimate creation of policy, but they are not a â€˜get out of jail freeâ€™ card. There must be accountability.â€
The motion authorizes the Chairman to issue subpoenas at his discretion for the officials to appear before the Committee relating to the ongoing investigation. It also authorizes Conyers to subpoena additional documents relating to the issue – specifically, unredacted documents that have not previously been provided.
My understanding is that, if people receiving subpoenas refuse to comply, Congress could bring contempt of Congress charges. However, to do that Congress has to go through a (Bush appointed) U.S. attorney. Hmm.
I wrote yesterday, in a mostly flip way, about the appeals court decision that struck down a DC gun control law. David Nakamura and Robert Barnes write for the Washington Post:
The panel from the U.S. Court of Appeals for the D.C. Circuit became the nation’s first federal appeals court to overturn a gun-control law by declaring that the Second Amendment grants a person the right to possess firearms. One other circuit shares that viewpoint on individual rights, but others across the country say the protection that the Second Amendment offers relates to states being able to maintain a militia. Legal experts said the conflict could lead to the first Supreme Court review of the issue in nearly 70 years.
Some time back I researched the history of the individual rights v. collective rights arguments. I don’t have my research findings any more (that was about four computers ago), but I do remember that the bulk of historical documentation and scholarship weighed in on the “individual” side. Yes, the wording of the clause is ambiguous. But if you put the writing of the amendment in a historical context, it seems the amendment was intended to protect an individual right to own firearms so that the federal government could not deprive states of their militias. (Under the Militia Act of 1792, every citizen enrolled in the militia must own and maintain his own firearm.)
As I said, I don’t have the research notes any more and I don’t have time to re-research the question. I do remember that a lot of early American documents and case law seemed to assume the right was individual, not collective.
The District’s law bars all handguns unless they were registered before 1976; it was passed that year to try to curb gun violence, but it has come under attack during the past three decades in Congress and in the courts. Yesterday’s ruling guts key parts of the law but does not address provisions that effectively bar private citizens from carrying guns outside the home. ….
…The suit said the ban on handgun ownership violates the Second Amendment, which states: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, saying the amendment was tailored to membership in a militia, which he defined as an organized military body.
The case moved to the appellate court, with the National Rifle Association siding with the pro-gun faction, while the Brady Center to Prevent Gun Violence joined the District. Reflecting the case’s national importance, various state governments lined up on each side.
In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the District’s position, that a militia means just that. Others have ruled that the amendment is broader, covering the individual rights of people who own guns for hunting or self-defense.
The Supreme Court addressed the Second Amendment in 1939, but it did not hold that the right to bear arms meant specifically that a person could do so.
Yesterday’s majority opinion said that the District has a right to regulate and require the registration of firearms but not to ban them in homes. The ruling also struck down a section of the D.C. law that required owners of registered guns, including shotguns, to disassemble them or use trigger locks, saying that would render the weapons useless.
If this case does go to the Supreme Court, I suspect the SCOTUS will either decline to take it or uphold the appeals court decision.
One of the things “everybody knows” about liberals is that they are opposed to gun ownership. But this perception comes from NRA fundraising letters (the liberals are going to take away your guns!) not reality. For years this has been a great wedge issue for the GOP.
Election Day approaches, which means it is time for House Republicans to run fully amok. Today, the House will take up a bill by Indiana Republican Mark Souder to lift the gun controls in the District of Columbia. Souder’s bill legalizes ownership of semiautomatic weapons and armor-piercing ammunition. How this would increase security around the White House and the Capitol is something that Souder and Co. have neglected to explain, but no matter. The House Republican leadership knows the bill won’t pass the Senate. The only reason it was even introduced was to force House Democrats — a number of whom represent gun-loving districts — to vote on this nonsense.
In other words, to vote against possession of armor-piercing ammunition near the White House makes one a “gun grabber.” The appeals court decision deprives the wingnuts of one of their talking points.
So far I’ve found no opposition to the decision on the Left Blogosphere. If the righties were hoping we liberals would be up in arms, so to speak, about this decision, I suspect they are disappointed. Ron Chusid writes:
In reviewing the reaction in the blogosphere it is clear, as anticipated, that intensity of support for the right to own guns is greater on the right. While this is a lower priority on the left, the sentiment is also with the rights of the individual. Even where bloggers have not commented it is noteworthy that there is no outrage over the courtâ€™s decision as would be expected if restriction of gun ownership was really a goal of liberals.
Personally, I agree with what Jeralyn Merritt wrote here:
Being for the Second Amendment doesn’t mean defense lawyers are not liberals. It means they won’t give up any constitutional right, even ones they may not exercise personally. Give ’em an inch and…..besides, the Second Amendment is only one away from the Fourth.
In other words, there’s to be no cherry picking of the Bill of Rights. If one amendment is expendable, they all are.
There was a blogger conference call today with Sen. Harry Reid, who (remarkably) didn’t read us a prepared statement but simply took our questions. Bob Geiger blogs about it here. See also Chicago Dyke at Corrente.
In the course of the call, I brought up the apparent buildup to war in Iran, and let him know that y’all (including me) are worried to death that the Senate is going to cave in to Bush’s warmongering. Actually, I think I said “wimp out.” Or something like that. He assured me the Senate would stand up to the White House on this matter, as well as taking on a stronger oversight role in Iraq.
In the Washington Post today, Fred Barbash has quite a good column asking a good question — Why Would Congress Surrender?
At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the “battlefield” over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.
In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words. …
… Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it’s as good as law.
This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch. …
… Article II does indeed make the president commander in chief.
But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to “declare war,” to “make rules concerning captures on land and water,” to “provide for the common defense,” to “raise and support Armies,” and to “make rules for the government and regulation of the land and naval forces.” In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.
War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to “make war.”
The delegates changed the wording to “declare war,” not to remove Congress from the process but to leave the commander in chief the “power to repel sudden attacks,” as James Madison put it. “The executive should be able to repel and not to commence war,” agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because “no executive would ever make war but when the nation will support it,” said delegate Pierce Butler.
As I wrote here, there is no way in hell the authors of the Constitution intended to give the President the kind of war powers Bush has assumed. But the parameters of the presidential war powers have been pushed outward for a long time. Until now the chief executives have been reasonably responsible, if only because they were mindful of public opinion. But now we’ve got a Creature in the Oval Office with no sense of responsibility at all, but with some kind of unresolved adolescent resentment against authority other than his own.
For more than two centuries we’ve respected the Constitution as the Law of the Land. Certainly there have been many disagreements about what this or that clause means, or how to interpret a 17th century document in the light of 21st century reality. Even presidents have taken actions that were found to be unconstitutional later on. But I can’t think of another time in our history in which we were threatened by an executive branch that just plain wanted to blow the Constitution off and rule any way they damn well pleased.
This is a precedent Congress must not allow to stand. They must not just try to keep the Creature in check for the next two years until his term expires. Congress’s authorities must be made clear.