If there was any doubt that Bush envisions himself to have unlimited authority that cannot be challenged, this article should put that to rest. The ACLU, representing several citizens, has filed suit against the NSA's call tracking system and the government is arguing not only that they cannot challenge that program, but that no citizen has any right to challenge any allegedly anti-terrorist policy in court at all:
The Bush administration has urged a judge to dismiss a similar case, saying it threatens to divulge state secrets and jeopardize national security. The government argued in briefs that the courts cannot decide the constitutionality of the president's asserted wartime powers to eavesdrop on Americans without warrants.
If the courts cannot decide the constitutionality of such programs, then we might as well not have a constitution or courts at all. That is the function of the courts, to determine the constitutionality of executive and legislative actions. Absent that, there is no means of petitioning the government for a redress of grievances, as guaranteed in the first amendment. Let us once again revisit what the Federalist Papers say about the importance of judicial review:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Without the courts to protect us from the unconstitutional acts of the executive and legislative branch, all of our rights are in grave jeopardy.
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http://pandagon.net/2006/05/22/secret-rooms-the-entire-internet/#more-2…
That's about AT&T building spy rooms for the NSA which enable it to see every message on the internet.
All I can say is, thank you Wired magazine.
Sorry, Ed, but I can't resist. If you want to delete this to prevent the thread from being hijacked, no offense taken.
If the President asserts that the Executive's power during a time of war cannot be reviewed by the courts or restricted by Congress, has the President failed to "preserve, protect, and defend the Constitution of the United States"? Is that a high crime or other misdemeanor for which the President is subject to impeachment? Discuss. (You may assume for purposes of your answer that a state of war actually exists, but extra credit will be awarded for coherently discussing whether the United States is, in fact and as a matter of law, in a state of war.)
In the 70's Nixon used the argument that asserted executive privilege and national security gave him the same status. Didn't work then, and this similar argument shouldn't work now.
Huh? Checks and Balances, what? Anyone who believes in the constitution should be mad as hell. If the program is legal, then it will stand up to court scrutiny.
I second Dan's comment. Are we in a state of war? I thought that only Congress can declare war. Have they done so? Who are we at war with?
Some may argue that this is a new, different situation than was ever envisioned by the framers and therefore that rule doesn't apply, but isn't that also a constitutional question?
I suspect that the question is moot, since, with the current court, they will probably agree with whatever the president wants.
I would like to see some discussion from constitutional scholars.
A lawyer I know is arguing that this is a separation of powers issue, not a 1st Amendment issue, and that case law supports the administration.
I'm not an attorney, so perhaps someone could expound on this idea a bit for those of us who are troubled by what's going on without being able to fully document exactly why.
thanks
Dan-
My answer would be yes, he has violated his oath to the Constitution. And I don't think it matters whether we're at war or not. The Constitution gives the president the authority as commander in chief to run the military; that is not a blank check to do whatever he wants to as long as he thinks there's a war going on. Being at war does not suspend the Constitution.
John-
Your friend is wrong. Determing the constitutionality of executive and legislative acts is precisely the power given to the Supreme Court. The separation of powers issue cuts the other way, it's the administration trying to take away the legitimate powers of the court.
Rudyard Kipling in the poem A Death Bed:
Nothing new about this, except that the framers tried their very best to prevent it.
Let me respond to both Ed and John. Yes, it is clearly a separation of powers issue, one with profound implications for our entire constitutional structure and all of the rights we think are secured by it. Onward, so to speak, to the next question: What's the remedy? Assume we have (i) a President who is willing to disregard everything in the Constitution except that part making the President the Commander-in-Chief (together, of course, with every implied and inherent power that might accompany it); (ii) a Congress that will not (or cannot, because the President ignores it) provide any meaningful oversight of or check upon Executive power; and (iii) a Supreme Court which, for institutional reasons (namely, and as I've argued here before, a Court that is afraid of being institutionally weakened because the President might disregard its orders) is unwilling to do much to maintain any meaningful separation of powers. Is there a remedy? What is it?
Do we know which case they're talking about? Is there text of the administration's argument anywhere? It could be that the administration isn't explicitly challenging the consitutionality of judicial review, but only implicitly (well, we know it's doing so implicitly) and the reporter is getting a bit carried away. I'd like to see what their legal reasoning is before jumping to conclusions. Of course, based on their defence of the NSA programme so far, it's unlikely to be a tour de force.