Category Archives: Separation Of Powers

Is There A Case For Impeaching Dick Cheney ?

Bruce Fein, a conservative who served as Deputy Attorney General under Ronald Reagan, and who has been associated with groups such as the American Enterprise Institute, makes the case at Slate:

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president’s insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney’s multiple crimes against the Constitution clearly qualify.

Fein then goes on to catalog what he thinks should be some of the areas of inquiry of a possible impeachment move:

The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president’s say-so alone, a frightening power indistinguishable from King Louis XVI’s execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.

The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.

(….)

Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.

He has advocated and authored signing statements that declare the president’s intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia.

(…)

The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.

These are all, I think, serious matters, and it’s encouraging to see conservatives like Fein recognizing and denouncing the legacy of the Bush-Cheney Administration, but I think there’s a serious question as to whether any of the things Fein mentions constitute impeachable offenses under the Constitution.

The Congressional impeachment power is set forth in Article II, Section 4 of the Constitution, which states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nothing that Fein mentions can be considered to constitute treason, which is the only crime defined in the Constitution, and there’s no evidence or allegation of bribery. So that leaves open the question of whether there are any high crimes or misdemeanors.

As much as a disagree with the Bush Administration, and as much as I think Cheney has done great harm to the Office of the Vice-President and the country, the fact remains that each one of the items that Fein cites in his article are, in the end, arguments over policy and the extent of Presidential power in a time of quasi-war. Unlike Watergate, where Richard Nixon at the very least participated in a conspiracy to obstruct justice, there’s no direct evidence of a crime having been committed. Even Clinton’s impeachment, which I think was a political mistake, involved commission of a crime, perjury under oath before a Federal Judge.

It’s clear that Fein, like many of us, disagrees with the Vice-President and thinks he went overboard in the years after 9/11. But that’s a policy disagreement, and that’s what elections are for.

I addressed this issue back in March when Chuck Hagel was speculating about President Bush’s impeachment, and this observation is equally applicable today:

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

The chance to deal with Dick Cheney was back in November 2004, but, thanks largely to the fact that Bush/Cheney was facing an incredible inept Democratic ticket, the Vice-President remained in office at the end of the day. Moreover, he’ll be out of office after noon on January 20, 2009. It’s not worth trashing the Constitution to get rid of him earlier.

Dick Cheney Rejoins The Executive Branch

Compelled perhaps by the rather creative proposal by Congressman Rahm Emanuel to cut off funding for the Office of the Vice-President based on assertions that the Veep is not part of the Executive Branch of Government, Vice-President Cheney has now apparently decided to rejoin the Executive Branch of the Federal Government:

Dick Cheney’s office is abandoning a justification for keeping the vice president’s secret papers out of the hands of the National Archives, while asserting a new argument for withholding them.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office’s $4.8 million in executive-branch funding, and a letter from Sen. John F. Kerry (D-Mass.) asking for the reasoning behind the argument.

Welcome back to the United States, Mr. Vice-President. But what’s this about a new argument for withholding secret documents ?

David S. Addington, Cheney’s chief of staff and counsel, wrote in a three-paragraph response to Kerry on Tuesday that the executive order on classified national security information does not give the archivists authority over the president or vice president.

Addington said that therefore it “is not necessary in these circumstances to address the subject of any alternative reasoning.”

In other words, we’re still not going to comply with the law and we’re not going to tell you why.

Rahm Emanuel — Cheney Can’t Get Funding From Executive Branch

Dick Cheney dropped an odd proclamation last week. It appears that he doesn’t believe he’s part of the Executive Branch, and thus is not subject to their rules regarding disclosure. He’s playing with fire, because if he’s outside the Executive Branch, it’s unclear whose rules he falls under. Cheney is hoping that means he’s not under anyone’s rules, but that’s a tenuous assertion to make.

Now, Rahm Emanuel is going to try to call his bluff. Since Cheney doesn’t believe he’s part of the Executive, Emanuel is going to try to make sure his office— and home— aren’t funded as part of the Executive:

Responding to claims by Vice President Dick Cheney that his office is exempt from disclosing information about what it has classified as secret, Rep. Rahm Emanuel (D-Ill.) said Tuesday he will try to cut off the $4.8 million needed annually to run Cheney’s office and home.

Last week, Cheney claimed he is not bound to disclose some national security requirements because, as president of the Senate, he is not part of the executive branch.

Emanuel’s proposal would be attached as an amendment to a spending bill that includes funding of the executive branch and which is expected to be considered by the House as early as Wednesday night. The amendment proposes that no executive funds be used for the vice president’s office, including any money for Cheney’s vice presidential residence.

“He’s not part of the executive branch. We’re not going to fund something that doesn’t exist,” said Emanuel, who is also the House Democratic Caucus chairman. “I’m following through on the vice president’s logic, no matter how ludicrous it might be.”

Seems like a pretty clear interpretation of Cheney’s illogic to me. Of course, Cheney’s office responded with a standard retort:

Cheney spokeswoman Megan McGinn retorted, “I think it is sad that Congressman Emanuel would rather focus on partisan politics than the serious issues facing our country.”

What, because the Constitution, separation of powers, and the ability of “we the people” to engage in oversight aren’t serious issues? Yes, Emanuel’s playing politics. But Cheney’s just trying to make himself above the law. I consider the former a justifiable tactic against the latter.

The Imperial Vice-Presidency

Starting yesterday, the Washington Post began running a four-part series on the Vice-Presidency of Dick Cheney, during which we have seen the role of the Vice-President increase in behind-the-scenes power to an extent never before seen in American history. The first two articles have focused on Cheney’s role in the War in Iraq and the War on Terror and they have been, to say the least, revealing:

Yesterday, for example, we learned the extent to which Cheney has created a back channel to the President that allows him to bypass most of the President’s senior advisers and cabinet members when he wants to promote his agenda:

Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.

In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.

Cheney’s proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court — civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed “military commissions.”

“What the hell just happened?” Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part.

The episode was a defining moment in Cheney’s tenure as the 46th vice president of the United States, a post the Constitution left all but devoid of formal authority. “Angler,” as the Secret Service code-named him, has approached the levers of power obliquely, skirting orderly lines of debate he once enforced as chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw as hostile, using intimate knowledge of its terrain. He has empowered aides to fight above their rank, taking on roles reserved in other times for a White House counsel or national security adviser. And he has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert.

What is even more interesting is this exchange between former Vice-President Dan Quayle and Cheney shortly after Inauguration Day in 2001:

“I said, ‘Dick, you know, you’re going to be doing a lot of this international traveling, you’re going to be doing all this political fundraising . . . you’ll be going to the funerals,’ ” Quayle said in an interview earlier this year. “I mean, this is what vice presidents do. I said, ‘We’ve all done it.’ ”

Cheney “got that little smile,” Quayle said, and replied, “I have a different understanding with the president.”

“He had the understanding with President Bush that he would be — I’m just going to use the word ‘surrogate chief of staff,’ ” said Quayle, whose membership on the Defense Policy Board gave him regular occasion to see Cheney privately over the following four years.

The obvious implication of that statement, of course, is that Cheney had an agreement with Bush in 2000 when he agreed to stand as the VP running mate. What the details of that agreement are is unclear, but that manner in which Cheney has acted as Vice President give the implication that Cheney asked for, and received, a much greater role in Administration policy making than any Vice-President had ever had. The last time anything resembling that happened was in 1980 when Gerald Ford put similar conditions on becoming Ronald Reagan’s running mate. Reagan, of course, turned down the offer.

The biggest Cheney’s assertion of Vice-Presidential power isn’t so much that it was done —- the Constitution is silent on the powers of the Vice-President and, if the President chooses to grant him authority, that would seem to be his right —- but the fact that much of it was done in secret. Take, for example, the controversial torture of prisoners at Guantanamo Bay:

Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper’s working group was at the helm.

After leaving Bush’s private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney’s link to the document broke there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately – without advance distribution to the president’s top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after “rapid, urgent persuasion” that Bush was standing by to sign and that the order was too sensitive to delay.

After reading something like this, it becomes clear why the rush to John Ashcroft’s hospital bed in early 2004 was such a big deal. When you’re dealing with people who act in secret without impunity, a scene directly out of The Godfather isn’t implausible at all.

One of the most serious problems with the Bush Administration has been the extent to which it acts in secret, and in ways that allow it to evade the technicalities of the law (by, say, using RNC email to discuss government business so it doesn’t get saved on the White House server). Now it’s clear where the inspiration for much of that secrecy comes from.

Dick Cheney Rewrites The Constitution

Vice-President Cheney’s office is asserting that the Vice-President is not part of the Executive Branch:

For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman.

(….)

[O]fficials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington, did not believe that the executive order applied to the vice president’s office because it had a legislative as well as an executive status in the Constitution. Other White House offices, including the National Security Council, routinely comply with the oversight requirements, according to Mr. Waxman’s office and outside experts.

(…)

Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.

Last time I checked, the Vice-Presidency was created under Article II of the Constitution, just like the Presidency. That, notwithstanding the fact that the Vice-President does sit as President of the Senate, would seem to clearly make it part of the Executive Branch. Unless you agree with Dick Cheney, in which case it’s part of the Super-Secret Branch.

George W. Bush: A President Above The Law

Much has been written about the Bush Administration’s use of so-called Presidential “signing statements”, which are typically comments appended by the White House to Bills submitted by Congress which purport to constitute the Executive Branch’s understand of how it will comply with the law that Congress has just passed.  From a Constitutional perspective, these “signing statements” would appear to be nothing more than mere meaningless political blather but a new Congressional study has shown that the situation is just a little more serious:

President Bush has asserted that he is not necessarily bound by the bills he signs into law, and yesterday a congressional study found multiple examples in which the administration has not complied with the requirements of the new statutes.

Bush has been criticized for his use of “signing statements,” in which he invokes presidential authority to challenge provisions of legislation passed by Congress. The president has challenged a federal ban on torture, a request for data on the administration of the USA Patriot Act and numerous other assertions of congressional power. As recently as December, Bush asserted the authority to open U.S. mail without judicial warrants in a signing statement attached to a postal reform bill.

For the first time, the nonpartisan Government Accountability Office — Congress’s investigative arm — tried to ascertain whether the administration has made good on such declarations of presidential power. In appropriations acts for fiscal 2006, GAO investigators found 160 separate provisions that Bush had objected to in signing statements. They then chose 19 to follow.

Of those 19 provisions, six — nearly a third — were not carried out according to law. Ten were executed by the executive branch. On three others, conditions did not require an executive branch response.

Admittedly, many of the examples cited in the article were trivial. However, that doesn’t mean that this isn’t a real issue:

[T]he GAO’s findings are legally significant, said Bruce Fein, a conservative constitutional lawyer who served on an American Bar Association task force that excoriated the president’s use of signing statements in a report last year. White House officials have dismissed such concerns as overblown, suggesting that the statements were staking out legal positions, not broadcasting the administration’s intentions.

But the GAO report suggests that the dispute over signing statements is not an academic one, Fein said, adding that Congress could use the report to take collective legal action against the White House.

“At least it makes clear the signing statements aren’t solely for staking out a legal position, with the president just saying, ‘I don’t have to do these things, but I will,’ ” Fein said. “In fact they are not doing some of these things. You can’t just vaporize it as an academic question.”

It all comes down to the question of whether the Presidency is an institution onto itself, which would seem to be what the Bush Administration’s position would suggest, or whether the Executive Branch is a co-equal part of the Federal Government, which is what the Founders seemed to have intended.

A Purely Symbolic Shot Across The Bow

The United States Senate joined the House today and passed an Iraq War spending bill that includes a timetable for withdrawal of American troops:

The Senate today gave final approval to a $124 billion war spending bill that requires troop withdrawal from Iraq to begin by Oct. 1, with a goal of ending U.S. combat operations there by next March.

President Bush has pledged to veto the bill, and White House spokeswoman Dana Perino promised this morning he would act “very soon.”

The Senate approved the measure by a 51-46 vote, a day after the House passed the bill by 218-208, brushing aside weeks of angry White House rhetoric and veto threats.

“It is time to end the loss of American lives and to begin to bring our soldiers home,” Sen. Edward M. Kennedy (D-Mass.) said on Senate floor this morning. “For the sake of our troops we cannot repeat the mistakes of Vietnam and allow this to drag on long after the American people know it’s a mistake.”

Today’s vote completes work on the rarest of bills: legislation to try to end a major war as fighting still rages. Democrats hope to send the measure to the White House on Monday, almost exactly four years after President Bush declared an end to major combat in a speech aboard the USS Abraham Lincoln. That would be a particularly pungent political anniversary for Bush to deliver only the second veto of his presidency.

The problem is that, just as Bush’s landing on the Lincoln and standing below the “Mission Accomplished” banner was a purely political stunt, this spending bill is also a purely political stunt. The Democrats know that the President is going to veto this legislation and it’s fairly obvious that they do not have the votes to override the veto.

As I’ve noted before, this leaves the Democrats with two alternatives. Either they refuse to pass any supplemental war funding bill at all, meaning that money to fund the war will run out sometime in July. Or, they take the timetable language out of the bill (or turn it into a “suggestion” that either side can do with what they wish) and use the President’s veto as a political tool in 2008.

As I’ve also noted, it seems clear that while the public wants the war to end, they don’t support withholding funds from the troops while they are still there fighting.

Given this, it’s clear that what the Democrats are engaged in here is a purely political stunt and they will blink at some point in the future. That doesn’t mean it’s a dumb move politically, of course, but they should at least be honest about what they’re doing.

Were the Federalists Really Lying?

Lew Rockwell has an interesting essay in the American Conservative:

Maybe the authors of the Federalist Papers were liars. Maybe they were just engaged in political propaganda in order to shove through the Constitution. In secret, perhaps, they were plotting a Leviathan state with a president who can do all that the Bush administration claims he can, which pretty much amounts to whatever Bush wants to do.

If that was the case, they knew better than to advertise it. The Constitution would never have passed. Fear of a powerful president was one of the main reasons that people were fearful of abandoning the Articles of Confederation, which had no executive to speak of.

In any case, this book by Yoo dismisses the whole of what Hamilton says in Federalist 69 as “rhetorical excess.” And an article in the Boston Globe quotes him as saying that “Fed 69 should not be read for more than what it is worth.” Why? Because all presidents since FDR have used the imaginary war power to do their dirty tricks.

This is an interesting argument. It says that because some tyrants have violated the Constitution, all presidents should presume the right to be tyrants in the manner in which the Constitution’s framers tried to guard against. Now if some intellectuals set out to say that the Constitution is really just a myth, that our past doesn’t matter, that the founders’ intentions are irrelevant, that the rule of law is and should be a dead letter, that would be one thing. We would be back to the fundamental debate of liberty versus despotism.

what if the authors of the Federalist Papers were liars? This is not as crazy a theory as it might sound. Patrick Henry believed that they were, which is why he opposed the Constitution to begin with. It was too much of a risk, he said, to create any sort of president: “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!”

Patrick Henry lost the debate because enough people believed that Hamilton was sincere in his promises and that the president would be restrained. So let us be clear about what the advocates of executive rule are really saying. They are saying things that if they had been said to that founding generation of Americans would have prevented the Constitution from ever being passed. But it did pass. So until we can restore the Articles, let’s live up to the Constitution, and stop the dissembling, especially in the name of “conservatism.”

Worth reading in its entirety.

This matter goes to the heart of a fundamental debate that I really wish would become the centerpiece of the next election cycle. The Bush administration’s doctrine seems to be based on the old Roman model of the Dictator. In times of crisis, the senate would appoint a dictator who would run the state until the crisis was passed. he could seize goods, order armies about, issue or suspend laws, etc. The dictator was expected to relinquish power once the crisis was past, and his term was initially limited to a mere 6 months.

Practically speaking, this system did not work out so well. As the Roman Republic politically disintegrated the office was increasingly abused. After repeatedly appointing Julius Caesar as dictator, eventually the Senate appointed him dictator for life. This marked the last breath of the Roman Republic, and the birth of the Roman Empire.

It is tempting in times of crisis to embrace a strongman, a man who will have the vision and power to right wrongs and defend the community for internal or external attack. Given the power to violently expropriate goods with impunity, to force the members of the community to labor according to his will, only the strong-man’s conscience and wisdom restrain him from harming those in his power. If he is both wise and has a strong aversion to hurting people, the community can survive such a man. If, on the other hand he is unwise, or bloodthirsty, or simply uncaring he can destroy not only the society but kill thousands or millions of people.

Today, the dominant political arguments seem focused on what decrees a strong leader should make to solve the crises of the world. All to often the necessary debates to whether a strong leader is even necessary are so muted, that most people are not even aware of their existence.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Bush Asks To Expand Surveillance State

Well, “expand” is probably not a very good term, I think it’s more likely he’s asking for Congress to approve the stuff he’s already doing…

But it’s one more incremental inch towards widespread government monitoring of you and I.

Administration Seeks to Expand Surveillance Law

The Bush administration yesterday asked Congress to make more non-citizens subject to intelligence surveillance and to authorize the interception of foreign communications routed through the United States.

Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.

The proposed revisions to FISA would also allow the government to keep information obtained “unintentionally,” unrelated to the purpose of the surveillance, if it “contains significant foreign intelligence.” Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

Well, at least I’ll give Bush credit for one thing. He’s finally understanding that he might actually have to ask Congress for some authorization of power. But look at what he’s asking about here. People that have no association with a foreign terrorist suspect would become legitimate targets for surveillance. Note that they can be investigated if they might possese “foreign intelligence information”, a phrase which doesn’t included any mention of terrorism. Now, I’m not sure if that was deliberately phrased that way, or was sloppy writing by the author, but that would entail a wide increase in investigative scope. Where could it be used? Maybe someone who might have a connection to a drug dealer could be watched under FISA? Maybe an immigrant from Venezuela that might have information about things going on in the Chavez regime.

This appears to open the door one more step for big brother.

And, of course, it wouldn’t be the Bush administration if he didn’t make the law retroactive to cover past wrongdoing:

And they provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers. The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.

Yep… Even if I had just cause to sue a telecom company for illegally providing personal data to the government, well— poof!— no crime was committed!

And if that wasn’t enough, our tax-cutting president is— as usual— threatening to veto a bill if it doesn’t include the spending he wants.

The White House, in a “statement of administration policy” sent to the Senate on Thursday, questioned the 4 percent reduction in funding that the intelligence committee applied to national intelligence programs and its threat of prohibiting funding for several classified projects pending reports to the panel.

What sort of Republican will pass along any pork-barrel spending the Congress gives him (such as the Transportation bill he threatened to veto if it was over a certain size, then backed off and signed it), and then when Congress tries to reduce spending, vetoes the bill? Fiscally liberal and socially conservative, that sounds to me like the worst of both worlds for a libertarian.

Hat Tip: A Stitch In Haste

An Agenda I Can Agree With

I don’t usually read The Nation, but John Nicholas has a post up over there today talking about a group of conservatives who have finally stopped drinking the Bush Administration Kool-Aid:

Just imagine if one of the leading candidates for the Democratic presidential nomination endorsed this radical agenda:

• End the use of military commissions to prosecute crimes.

• Prohibit the use of secret evidence or evidence obtained by torture.

• Prohibit the detention of American citizens as enemy combatants without proof.

• Restore habeas corpus for alleged alien combatants.

• End National Security Agency warrantless wiretapping.

• Empower Congress to challenge presidential signing statements.

• Bar executive use of the state secret privilege to deny justice.

• Prohibit the President from collaborating with foreign governments to kidnap, detain of torture persons abroad.

• Amend the Espionage Act to permit journalists to report on classified national security matters without threat of persecution.

• Prohibit of the labeling of groups or individuals in the U.S. as global terrorists based on secret evidence.

The group that’s advocating this agenda isn’t a bunch of leftists, they aren’t even cranky libertarians, they are some of the biggest names in the conservative movement:

The group that’s advancing this so-called “American Freedom Agenda” is chaired by Bruce Fein, a former Nixon administration aide who served as deputy attorney general under President Reagan and who helped to formulate some of the serious — pre-blue dress — arguments for impeaching Bill Clinton. Fein is joined by former Georgia Republican Congressman Bob Barr, veteran conservative fund-raiser Richard Viguerie and David Keene, the former aide to Bob Dole who for many years has served as chairman of the American Conservative Union.

(…)

The American Freedom Agenda campaign is the vehicle that these conservatives have established, with a self-described twofold mission: “the enactment of a cluster of statutes that would restore the Constitution’s checks and balances as enshrined by the Founding Fathers; and, making the subject a staple of political campaigns and of foremost concern to Members of Congress and to voters and educators. Especially since 9/11, the executive branch has chronically usurped legislative or judicial power, and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chilling, reminiscent of the kingly abuses that provoked the Declaration of Independence.”

As refreshing as it is to see conservatives who recognize the libertarian roots of the American Constitution and the fact that the Bush Administration has assumed for itself powers that even King George didn’t have, it would be more refreshing if the leaders of the Republican and Democratic Parties signed on to this agenda. So far, though, only own Presidential candidate has joined them:

The agenda was launched two weeks ago. So far, one candidate has expressed support it: Texas Congressman Ron Paul, the libertarian Republican who explains that: “[They] say that the executive branch is always hungry. That’s why it’s up to the people, up to the congress to reign in the power of the executive branch.”

Good for you, Congressmen Paul. How about the rest of the candidates ? John ? Rudy ? Mitt ? We’re waiting for your answer.

Giuliani: Privacy? “It Depends”

Commenter uhm pointed out this story:

Executive power hot topic at New Hampshire forums

Former New York Mayor Rudolph W. Giuliani yesterday defended President Bush’s extensive use of national security tools such as the USA Patriot Act as no worse than other countries, but Sen. Barack Obama said he would use executive orders to roll back some of those powers.

“The Patriot Act does give the government more tools, more power, but it’s not vastly out of line with what other governments have, free governments, democratic governments,” Mr. Giuliani told the Portsmouth Chamber of Commerce while campaigning for the Republican presidential nomination here in New Hampshire.

“All of this takes a little privacy away from somebody. It depends on who you take it away from, and what is at stake,” he said.

Yes, it certainly does. But as Michael Hampton at Homeland Stupidity points out this morning, discussing the relative ease of which our census bureau gave up information on the whereabouts of Japanese-Americans in 1942, you change who you take that privacy away from in an instant. They had promised that census data was confidential. But when you give up power to government, understand that the power you give up today may end up being used in ways tomorrow that you might not like:

I had several stories ready to go of government agencies losing, misplacing, or intentionally publishing private personal information on ordinary Americans. Forget all that. The danger of government databases being compromised is minor compared to the danger posed by the databases’ very existence. The privacy protections that Michael Chertoff and threats like him promise you today can be gone tomorrow, with an act of Congress, an executive order, or just a new regulation. After all, they’re all just words on goddamned pieces of paper.

I’ve often said that George W. Bush isn’t who I consider the greatest threat to liberty. I honestly believe that he would limit his actions to those people who he suspected to be legitimate terrorists [the fact that I don’t trust his judgement, though, is why I’d like to see them get some sort of trial and judicial oversight]. But Bush has opened a door with things like the Patriot Act, the widespread extension of Executive powers, and I wonder if the President coming up next, or perhaps 3 or 4 down the line, will be so restrained.

I want our next President to shut the doors that Bush has opened. I simply don’t see Giuliani doing that.

The War On Terror And Presidential Power

In today’s Washington Post, Frederich Schwarz and Aziz Huq point out why the Bush Administration’s assertion of executive power in the context of the War on Terror are fundamentally different from what the nation has seen in the past:

Today, the argument for unchecked presidential power is starkly different from earlier invocations. While previous administrations have violated civil liberties — as in the post-World War I Palmer raids and the incarceration of Japanese Americans during World War II — such actions were public and short term. When Confederate troops neared Washington in the Civil War and mobs in Baltimore attacked Union troops, President Abraham Lincoln suspended habeas corpus — the principal legal protection against unlawful detention. As Baltimore’s mayor threatened to blow up railroad bridges used by Union troops, Lincoln acted without waiting for Congress to return from recess. Yet he subsequently sought and received congressional approval.

Unlike Lincoln and other past chief executives, President Bush asserts that he has the power to set aside fundamental laws permanently — including those that ban torture and domestic spying. The White House today argues that there will never be a day of reckoning in Congress or the courts. To the contrary, it does all it can to shield its use of unilateral detention, torture and spying powers from the review of any other branch of government. Even after five years, the lawfulness of incarcerating hundreds of detainees at Guantanamo Bay, Cuba, has not been reviewed by another branch.

As the authors point out, notwithstanding rhetoric coming from the Democratic leadership, Congress has been noticably silent and acquiescent in this unprecedented Presidential power grab. This is despite the fact that the Founding Fathers clearly would not have accepted the Bush Administration’s intrepretation of Executive Branch power:

Debates at the 1787 Constitutional Convention in Philadelphia, and in the state ratifying conventions that ensued, conclusively undercut the current administration’s claim to unaccountable power. Alexander Hamilton, the founding era’s foremost advocate of executive vigor, disdained efforts to equate the new president’s authority with the broad powers of the English monarchs. And even assuming that Hamilton was wrong in asserting that presidents have less power than English kings, the British monarchy had in fact been stripped of power to “suspend” parliamentary laws after the Glorious Revolution of 1688, about 100 years before the Constitutional Convention. The Constitution simply contains no unfettered executive authority to annul laws on a president’s security-related say-so.

In essence then, the Bush Administration is asserting that the President should have powers that even King George III didn’t have at the time of the American Revolution.

It’s time for someone to start challenging this before it’s too late.

Bush vs. Congress: Let The Confrontation Begin

Following on the heals of the House of Representatives, the Senate has approved, by a narrow margin, an Iraq War spending bill that sets a deadline of roughly one year from today by which American forces must be out of Iraq:

WASHINGTON — The Democratic-controlled Senate ignored a veto threat and voted Thursday for a bill requiring President Bush to start withdrawing combat troops from Iraq within four months, dealing a sharp rebuke to a wartime commander in chief.

In a mostly party line 51-47 vote, the Senate signed off on a bill providing $122 billion to pay for the wars in Iraq and Afghanistan. It also orders Bush to begin withdrawing troops within 120 days of passage while setting a nonbinding goal of ending combat operations by March 31, 2008.

As with the House vote the margin in the Senate is far short of what would be needed to override a Presidential veto, and it is unlikely that any of the 46 Republicans plus Joe Lieberman who voted against the bill would cross over and vote to override and expected veto. The bill is dead in the water.

I generally support the idea that the United States needs to start thinking about an exit strategy in Iraq, and that we need to do so sooner rather than later. I also think that the war itself, and the way it’s been handled since virtually day one, have been a colossal series of mistakes. But the way the Senate has gone about doing this is totally unconstitutional. First of all, Congress simply doesn’t have the authority to order the President to follow a specific military strategy. They authorized the use of military force and the President is Commander in Chief. As CiC, he has the authority to decide military strategy. Not only that, he is the head of a co-equal branch of government and is not subservient to Congress.

There really is only one way for Congress to exercise authority over America’s policy in Iraq. They would have to exercise the power of the purse and vote to defund the war. By all indications, the Democrats on the Hill have neither the political courage nor the support among their own members for such a move. Additionally, polling seems to indicate that while the public wants American troops to come home, they would not support cutting off funding to those troops as long as they are there.

Both practically and politically, the opponents of the war are in a very difficult position unless they can convince the President to change his mind. Given what we’ve seen from George W. Bush over the past seven years, that seems highly unlikely.

Chuck Hagel Is Talking Impeachment Again

Earlier this month, I wrote about statements by Nebraska Republican Senator Chuck Hagel that seemed to suggest that he thought President could be impeached because of his Iraq policy. Yesterday, he appeared on ABC’s This Week and made the speculation even more explicit:

WASHINGTON — Some lawmakers who complain that President Bush is flouting Congress and the public with his Iraq policies are considering impeachment an option, a Republican senator said Sunday.

Sen. Chuck Hagel of Nebraska, a member of the Foreign Relations Committee and a frequent critic of the war, stopped short of calling for Bush’s impeachment.

But he made clear that some lawmakers viewed that as an option should Bush choose to push ahead despite public sentiment against the war.

“Any president who says ‘I don’t care’ or ‘I will not respond to what the people of this country are saying about Iraq or anything else’ or ‘I don’t care what the Congress does, I am going to proceed’ — if a president really believes that, then there are … ways to deal with that,” Hagel said on ABC’s “This Week.”

Yes, Senator, there are ways to deal with it, but impeachment isn’t one of them.

Let’s go over this again, the impeachment power, set forth in Article II, Section 4 is pretty clear

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Hagel, however, is not talking about impeaching Bush for high crimes, misdemenaors, treason, or bribery, he is asserting the idea that the Congress has the right to seek to remove the President from office over a policy disagreement.

Part of the reason for this is fairly clear. Even if the Democrats Iraq War plan, which Hagel apparently supports, is able to garner enough votes to stop a filibuster and make it through the Senate, it is clear that the President will veto it. There is not enough support for the plan in either the House or the Senate to override the veto. Therefore, we’ll have stalemate and the President will be free to pursue his current Iraq policy unless Congress takes the step of cutting off funding for the war, which I submit they do not have the political courage to even try to do.

Like it or not, George Bush is President through January 20, 2009 and the Constitution gives him the authority as Commander in Chief to carry out the Iraq War as he sees fit.

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

Now, I am not a supporter of the President’s policy in Iraq. But he is the President and has the authority to carry it out. If Congress wishes to change that policy, then they can use the power of the purse to do so. If they don’t have the political courage to do that, they need to just be quiet until the Bush Administration is over.

H/T: Captain’s Quarters

The U.S. Attorneys Fight: It’s Gonna Go Nuclear

According to The Politico, both Republicans and Democrats see advantage to be gained the coming confrontation over the U.S. Attorney firings:

The White House and the Democrats who run Congress both see political advantage in the ongoing fight for public testimony by presidential advisers about the controversial firing of eight U.S. attorneys. And both have settled on what they believe will be durable messages for a potentially protracted confrontation, although one that is likely to stop short of a historic conflagration at the U.S. Supreme Court.

The Republican mantra on Capitol Hill can be summed up this way: “Democrats can’t legislate, so they want to investigate.” The gist of the Democratic talking points is: “Republicans want to hide from the truth.”

(…)

For Democrats, the brouhaha is a chance to revel in their new power, an ability to spotlight an embarrassing issue for an administration obsessed with secrecy.

So, it’s just like a lot of Washington “scandals.” Everyone agrees that nothing illegal happened, but both sides are willing to fight because they see advantage to it.

One Republican official said the president’s supporters are thrilled to see him on the offensive. “Our base is excited again,” the official said. “We’re back on our toes and off our heels. Everybody agrees we handled it wrong, but so what? So you’re going to make this a constitutional crisis?”

At the moment, that would appear to be the case.

Congress Subpoenas Rove And Sets Up A Constitutional Showdown

The House Judiciary Committee issued subpoenas today for five top aides to President Bush in connection with the developing investigation into the firing of eight U.S. Attorneys:

A House panel today authorized the issuance of subpoenas for top White House and Justice Department aides as it investigates the firing of eight U.S. attorneys last year.

The House Judiciary Committee’s subcommittee on commercial and administrative law passed by voice vote a motion giving the committee chairman, Rep. John Conyers Jr. (D-Mich.), the power to issue subpoenas for five current and former officials, as well as for “unredacted documents” from the White House and Justice Department. Among the five are Karl Rove, the deputy White House chief of staff, and Harriet E. Miers, the former White House counsel.

In authorizing the subpoena power over the objections of Republican members, the subcommittee rejected an offer by President Bush yesterday to allow the officials to testify under strict conditions. The White House is demanding limits on the kinds of questions they would answer, opposes having them testify under oath and does not want their testimony to be recorded or transcribed.

Absent an agreement between the White House and Congress, this one act turns what I’ve got to admit is a confusing “scandal” over the firing of a few U.S. attorneys into a Constitutional showdown.  President Bush made clear yesterday that the White House would assert executive privilege as a bar to any effort to force Presidential aides to testify under oath.

And, quite honestly, they would have a pretty good argument in their favor if they did.

Presidents have claimed executive privilege, if not by name, since the time of the Jefferson Administration, but it’s most famous example is the U.S. v. Nixon case, where the Supreme Court ruled that President Nixon had to turn over the tapes of Oval Office conversations sought by the Watergate Special Prosecutor. At the same time, though, the Court did recognize that some form of privilege does exist:

The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

What executive privilege really is, though, is a result of the Seperation of Powers doctrine. As a the head of a co-equal branch of government, the argument goes, the President has the right to have confidential meetings with his advisors and not fear that those conversations will be divulged to Congress, or to a prosecutor, using their subpoena power. How far that privilege goes is the answer that Courts have wrestled with since the early 19th Century.

If nothing else, this exceedlingly confusing story could provide the nation with some clarity on this issue.

John Shadegg’s Enumerated Powers Act

Congressman John Shadegg, who I wrote about here and here during last year’s race to replace Dick Armey as House Majority Leacder, has proposed an interesting new bill called the Enumerated Powers Act:

Yesterday, Congressman John Shadegg reintroduced the Enumerated Powers Act, a bill that highlights the importance of the Tenth Amendment and forces a continual reexamination of the role of the federal government.

“The Enumerated Powers Act would require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced. It would hold Congress accountable for its actions,” said Shadegg.

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“According to the Tenth Amendment, the national government cannot expand its legislative authority into areas reserved to the States or the people,” said Shadegg. “It is a well-known fact that the size and scope of the federal government has exploded since the New Deal. Congress continues to operate without Constitutional restraint, creating costly and ineffective programs and blatantly ignoring the principles of federalism.”

As a symbolic reminder of where Congressional authority originates from and what its limits are, the bill is a good idea. In reality, though, it really wouldn’t amount to much of anything. As James Joyner points out, given the manner in which Congressional authority has evolved beyond the limits of the Constitution over the past 220 years, a bill like Shadegg’s would do nothing to stop the expansion of government:

Unfortunately, we so long ago moved away from governing according to the Constitution that a return to the 1789 model is inconceivable. Further, the Framers themselves left a gapping loophole in the concept of enumerated powers-only governance in the very section where said powers are enumerated, Article I, Section 8: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” So, really, all Congress would need to do is claim that any bill it signed was “necessary and proper” and that it related to those “other powers.”

While I would argue that the Founders never intended the necessary and proper clause to be the catch-all phrase that it has become, that is how it has been interpreted for two centuries now. It’s going to take alot more than something like the Enumerated Powers Act to change the way things are today.

More information about Shadegg’s bill can be found on Thomas.

H/T: Marshall Manson

Chuck Hagel Speculates About Bush’s Impeachment

There is much discussion in the blogosphere about Senator Chuck Hagel’s interview in Esquire where he speculates about the possibility of President Bush’s impeachment:

“The president says, ‘I don’t care.’ He’s not accountable anymore,” Hagel says, measuring his words by the syllable and his syllables almost by the letter. “He’s not accountable anymore, which isn’t totally true. You can impeach him, and before this is over, you might see calls for his impeachment. I don’t know. It depends how this goes.”

The conversation beaches itself for a moment on that word — impeachment — spoken by a conservative Republican from a safe Senate seat in a reddish state. It’s barely even whispered among the serious set in Washington, and it rings like a gong in the middle of the sentence, even though it flowed quite naturally out of the conversation he was having about how everybody had abandoned their responsibility to the country, and now there was a war going bad because of it.

“Congress abdicated its oversight responsibility,” he says. “The press abdicated its responsibility, and the American people abdicated their responsibilities. Terror was on the minds of everyone, and nobody questioned anything, quite frankly.”

All of this is true. Grave mistakes were made on both sides of the political aisle that have plunged America, and the rest of the world, into a situation that seems to be without an easy solution right now. But that’s not a ground for impeachment.

Here’s what Article II says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

It is without question that profound policy mistakes have been made by the Bush Administration, especially when it comes to the Iraq War. They relied on faulty intelligence, ignored evidence that didn’t conform to their predetermined conclusions, and started a war without planning what would happen after it was over. We have paid the price for those mistakes for four years now.

But….

Making bad policy decisions is not a ground for impeachment under the Constitution. Turning the impeachment power into a method of removing from office a President who is merely unpopular would, I think, be a grave mistake.

Cheering For A Venezuelan Coup

In the comments to Doug’s last post, and in the comments on Reddit, people seem shocked that Doug would advocate a military coup to overthrow Chavez.

They’re shocked, of course, because a site called the Liberty Papers would suggest that a military coup to overthrow a quasi-democratically elected president. The key, of course, is that they equate liberty and democracy. Only they’re not equal. Chavez’ propensity to nationalize sectors of his economy and his desire to destroy personal wealth through monetary inflation make him a distinct threat to liberty. To me, it doesn’t matter if he was democratically elected or not.

You see, there are two definitions of democracy. One is the correct definition, and that is rule through elections. However, that definition is not in common parlance. The second definition is a state where many of the levers of power are controlled through a democratic manner, in a state which also protects individual rights through the rule of law. The first definition leads, quite commonly, to tyranny. The second definition is generally a pretty liberty-friendly society.

You see, here at The Liberty Papers, we have little love for democracy for democracy’s sake. We are interested in outcomes which support liberty. The first definition of democracy doesn’t usually do so, as Chavez and Venezuela are pointing out. The second definition of democracy usually does support liberty, but Chavez has been ruling by decree, not by law, nationalizing the economy, and destroying the currency, so Venezuela doesn’t meet the second definition.

Whether Chavez was elected democratically or not, he is acting as a dictator in ways to fundamentally destroy the liberties of the people of Venezuela. Thus, it is my position that he should be removed from power, for the good of the Venezuelan people. Now, I’m not advocating that this be something the United States get involved with. After all, while Chavez is a loudmouth, he doesn’t threaten the United States. However, should he be overthrown from within by forces who will restore the liberties of the Venezuelan people, I’ll be raising my glass in support.

UPDATE: It appears that commenter “lifeofliberty” is willing to allow anyone who is democratically elected to do whatever they like. I would assume, then, that he supports President Bush choosing what portions of laws he will or will not enforce through “signing statements”? I would assume he wouldn’t have a problem with our Congress giving him near-dictatorial power for 18 months? I would assume he’s in favor of domestic wiretapping, and the suspension of habeas corpus, and Guantanamo bay? Because even though Bush was democratically elected, I find those things deplorable and think they are anti-liberty. I guess “lifeofliberty” believes that because “the people” voted for Bush, all these things are just fine?

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