I’m so bored with the “Issue of the Day!”
Posted by Lance on 25 Sep 2006 at 8:36 pm | Tagged as: Law, Lance's Page, Foreign affairs, Domestic Politics
(Listening notes: The Clash)
I am not an attorney, and there are undoubtedly many things I do not understand about the legal points as to whether the NSA program complies with FISA or not, or whether the President has inherent authority to conduct such surveillance during wartime. I may have opinions, but they would hardly be authoritative. I have a deeper question. If the administration has violated FISA and they are bound by FISA, how much should we care? After all, we libertarians are supposed to value the “Rule of Law” and constraints on executive power above all. We are opposed to Princes and Kingly airs.
I’ll give my overview, and it is quite tentative. I think the 1st and 4th amendment arguments against the program are without merit, and the violation of FISA is an open question. I find the argument that the Bush administration has explicitly or implicitly agreed that what they are doing violates FISA exceptionally weak, but that doesn’t mean they do not in fact believe they are in violation of FISA.
Okay, let us move on. For the sake of argument let us assume that the program violates FISA. Should we care? In my opinion yes, but I mean should we really care, because in my reading there seems to be a belief (see any number of Greenwald posts for example) that this is a true catastrophe, that this issue and a few others like it, are so overwhelmingly important that most other political considerations should be dropped. Russ Feingold may be a big government liberal, but he is opposed to this mad power grab by this administration, so he should be supported. We are truly facing a crisis in our Republic, because the Rule of Law is being undermined. The rhetoric is well nigh apocalyptic at times.
I say hold on. Our history is littered with transgressions on these types of things when faced with a dire enemy. I have never voted for Bush and I have had the opportunity to do so in every election for public office the man has ever sought, so I have no great fondness for the man or his politics, but if this President is attempting to subvert our Republic, what am I to make of Lincoln, Wilson, Roosevelt, Johnson and Clinton? All but the last engaged in far more of a grab for power during war time, and Clinton attempted to enact all kinds of policies designed to track down money launderers, terrorists and drug lords of a similar scope to Bush during what was considered peacetime. Our Republic survived and many of these men are heroes to Bush’s critics. No administration engaged in large scale military operations has ever been so tender towards our civil liberties as this one. A phrase I have used before, and undoubtedly will again, still fits- History may have set a low bar, but this administration has jumped over it.
Ah, but we have higher standards now. We do and I am glad of it, but if it is higher standards that are the issue can we lower the rhetoric a bit? If we are to take news reports at face value, this is a program of limited scope, supposedly only applying to people of contacting known affiliates of our enemies on international calls without a warrant. All the administration is claiming they have a right to do is that. If it violates FISA that is still all they are claiming, not a broad based ability to monitor our citizenry at home, or even international calls generally. It is perfectly alright for one to object to that, but let us not make it out to be anything more than that. If the program does more we have a larger issue, but even then it would certainly fit in with past history from which we have survived. However, so far we have no reason to believe the program is anything more than it has been reported as being.
Still, some might argue, in the past it was not illegal, FISA now makes it so. Are we to tolerate law breaking by our executive branch? Of course not, that is why we have congress to oversee the program; I suggest they do so in a way that makes sure that the law is not being broken. We also have the courts if necessary to rule the program illegal. Is this some shocking thing? Have we ever had an administration not hauled before the courts, for that matter, our laws passed by congress, and declared illegal or unconstitutional? In each case the executive branch fought for the policy or law and when judged outside the lines of our constitution or existing law had to discontinue or modify the program or policy. That is the way it works. Exactly what is so unprecedented here? Nothing. Whatever one thinks of Althouse’s argument on this case in general, this seems perfectly correct to me:
the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
That is what the court is for, and it says nothing particularly bad about this administration that they lose a battle for powers that every other wartime President this century has assumed they had and used at times to great effect.
So go ahead and fight on, but the rhetoric surrounding this is hysterical. I think we should try out some more accurate rallying cries:
- If our civil liberties are eroded at the rate they have been under this administration, in another three or four years we will set ourselves back to…. 1975!
Not good, I was no fan of either Nixon or Johnston before him, much less the McCarthy era and the massive violations of law and liberty under the Roosevelt and Wilson administrations, but hardly a point of panic for me. Of course that doesn’t even take into account earlier periods wholesale abrogation of the rights of African Americans, but that of course only strengthens my point.
-If our civil liberties are eroded at the rate they have been under this administration, in another five or six years we will be not much different than …..Britain!
Not good once again, but Britain is a fairly nice place to live all things considered. In fact many of my more progressive friends and relatives live there in preference to the US, so obviously we are not in crises on that metric.
-If our civil liberties are eroded at the rate they have been under this administration in another 10 to 15 years we will be no different than …..France!
Now that hurts! I am something of a Francophile, but even I don’t want to be associated even tenuously with the curtailments of civil liberties and domestic intelligence gathering of France. So if things keep going this way I am admittedly in a bit of a panic. However, given the constant moaning about the US relative to Europe most of the critics should quiet down.
Obviously battle cries like that are a little less stirring than the exaggerations I hear daily. They are a good reason to look for new leadership, but hardly the beginnings of a monarchy.
Technorati Tags: NSA, civil liberties, FISA, wiretapping, Bush
23 Responses to “I’m so bored with the “Issue of the Day!””
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My personal perspective is that I’d rather have this administration’s anti-terror laws than the previous administratin’s anti-terror laws (which didn’t become law), which would have added taggents to gun powder, etc. Frankly, Clinton’s proposed laws were similar except they also made a point of punishing American gun owner’s. Another difference is that the Democrats would prefer the ‘efficiency’ of labor unions.
The evil aspect of Bush’s efforts are due to the ‘R’ after his name on the ballot.
I would argue that there are many reasons to oppose a great deal of what Clinton passed, tried to pass or did by administrative fiat (some of it struck down by courts) more vigorously than what this administration has done, but I can certainly see why people might feel differently. What I cannot understand is the hysteria about, and uniqueness attributed to, this administration.
You want to know where to start looking? Bill Clinton got impeached -
—- ****impeached**** — for the second time in US history
for lying to a witch-hunt, five-year special tribunal about an extramarital affair - the least job-relevant criteria imaginable, harming the rights of zero actual citizens, tripped up in a once-removed legal trap, in a manner comparable to Scooter Libby.
And the Republicans fell all over themselves about the neccesity of no one being above the law.
You know what the law says about FISA violations? Five years in jail per count. See, no hysteria. I’d just like to see flagrant violations of the law be punished as the law states that they’ll be punished. I’d like to see President Bush held to the same standard - hell, *half* the standard - of the Democratic President before him.
Bush is *unique*, because the last time we caught a president directing outright violations of the law was Nixon. He didn’t walk right up to the line. He didn’t creatively interpret the law. He creatively interpreted the Constitution to allow him to pretend that he could break the law.
It’s a very important difference. You pretend not to see the importance, but that’s just a rationalization outwards from your core point, simplified: you’ve stated: you don’t really care if GWB broke the law.
Fine.
But it makes other people angry to hear you say it, as it amounts to an admission that you’re in it for the naked exercise of power against your opponents, ahead of mutually agreed rules of the game, and people who believe in the rules want to see you punished for disowning them.
And your president punished for breaking them. Nothing unusual or unqiue about that. That’s the glue of civilization, baby.
There’s a lot of other things I’d dispute here, but let’s start (and maybe finish, i haven’t really enjoyed the experience) with this.
My President? I thought he was our president. Maybe you think it is because I am a fan of his? No, I am not and haven’t voted for him. I didn’t vote for him for governor either.
As for Clinton, okay, I don’t agree they are comparable on that matter, but even so, then I also didn’t think Clinton was somehow unique either. In fact, I think that was my point.
I’ll explore the rest of this in the morning.
I agree with this statement wholeheartedly. Clinton lied under oath, which is simply unforgivable for any attorney (under oath or not), and he brought a large measure of the scrutiny on himself for being such a sleaze, but there’s no doubt in my mind that he was set up from the beginning. I thought then, and continue to think now, that Clinton was set up to fall into the Lewinsky trap (even if it depended on his flawed character to make it happen).
Except, not only is FISA not as clear as you assume (with respect to the NSA program), there is the U.S. Constitution to contend with as far as countervailing (and trumping) authority. Even if the Bush Administration ran afoul of FISA, the motivation was to protect the Nation based on a reasonable interpretation of the law, as opposed to getting one’s jollies and trying to hide that fact. Surely you see the difference.
Which “opponents” are you referring to? Why does al Quaeda need to protection of our laws, which they don’t find legitimate, don’t ascribe to in any theoretical sense, and don’t fall under the jurisdiction of in any way shape or form?
And let’s be clear, glasnost, you don’t like the Bush Administration because is represents something you find distasteful as a matter of principle — i.e., you think they represent Christian fundamentalists. I don’t care that this is your beef with them, even if I disagree. By now, I would hope that you understand how much I respect your opinion, but I think that you are often too ready to accept tenuous arguments just because they attack what you find so distasteful.
Mike,
I interpreted Lance’s argument was as follows: Bush probably violated FISA - something I don’t hear admitted very often, but why should we worry about it? Reason X, Y, and Z. Complaints about hysteria.
While this is a more honest argument than the dissembling I usually hear, it’s also, a little ironically, even more irritating, because the part that makes people like me so angry - the “who cares?” - the acceptance of disproportionate, politically convenient disparate treatment of violation of the law - is being stated boldly and clearly.
Except, not only is FISA not as clear as you assume (with respect to the NSA program), there is the U.S. Constitution to contend with as far as countervailing (and trumping) authority
Mike, I’m not a lawyer, but (this is a consistent stance of mine) I don’t feel you have to be one to know the story. The penalty section for violations of FISA are very explicit. In other words, I think you’re wrong. How much more explicit can it be? The program’s essence depends on the avoidance of the FISA court and on wiretaps. The Constitutional argument is bogus- this is the consensus argument. Even honest right-wing sites like Volokh admit it, in couched language. It’s obvious. The Supreme Court is the sole authority in determining laws to be unconstitutional, and until it finds as such, the President must obey the law. End of story!
There is no real constitutional argument.
Even if the Bush Administration ran afoul of FISA, the motivation was to protect the Nation based on a reasonable interpretation of the law, as opposed to getting one’s jollies and trying to hide that fact.
I don’t feel that their legal interpretations were reasonable, I think that they were radical. I don’t feel that the arguments that this was neccesary to protect the nation - I find those arguments extremely weak, given the extremely permissive nature of FISA as it was written to begin with. They may have been motivated to protect the nation, and if a judge wanted to use that factor to acquit, once an appropriate trial had been convened, I would accept that. It would at least have precedent, albeit one I don’t like (lots of ordinary citizens who break the law may have had good intentions - who cares?)
I think that you are often too ready to accept tenuous arguments just because they attack what you find so distasteful.
I’m as fallible as the next guy, but I do my best, especially on this relatively sober-toned website, to stick to clear logic.
Clinton got impeached for breaking a perjury law under quite murky circumstances.
Bush is having his Congress pass laws that retroactively vindicate him for actions that, in my opinions, subvert and endanger American liberties far more seriosly than Clinton’s lie to a special prosecutor about his affairs.
If you think it’s “tenuous” to demand equal treatment, then I guess you’ve been contextually desensitized to the concept of “equal treatment before the law” - the core concept of the legal system itself.
If you think something else here is “tenuous”, I welcome your specification of what and why.
Why does al Quaeda need to protection of our laws, which they don’t find legitimate, don’t ascribe to in any theoretical sense, and don’t fall under the jurisdiction of in any way shape or form?
It’s not about protecting Al-Queida - definitely not in this case. It’s about protecting American citizens - and to a lesser extent - other human beings - who the government designates as deserving of the Al-Queida-member treatment.
Lance, I’m sorry about my implication that GWB is your personal president. This issue pushes my buttons. I revised this for niceness, but that’s as far as I got.
Don’t worry glasnost, I just want to make it clear that right or wrong it has nothing to do with partisanship. Not that I am completely immune to such things, but not here. I would make the same argument in Clinton’s case. In fact I can think of several instances where I have.
I don’t want to get too caught up in the Lewinsky matter, but a few clarifications. First of all Clinton was accused of something, and it wasn’t about policy (I’ll return to why that is important soon) that he was probably guilty of. I don’t particularly care that he was probably guilty in the Paula Jones case, since I think the laws in question are pretty stupid, but she deserved her day in court either way. It does however leave me with a bit of schadenfreud since it was his administration which pushed for the legislation under which his petard was hoisted. So somebody’s rights were affected by him stonewalling in the suit.
It also should be pointed out that despite claims otherwise the Republicans practically begged Clinton to avoid the impeachment. They did not fall all over themselves. Once it was clear he had in fact perjured himself in his deposition all he had to do was stop there. Instead he dared them by lying about it publicly and again in front of a grand jury. That was what broke the camel’s back, not his affair or the original crime. They gave him outs and they then felt they had to follow through. Condemn that if you want, but that is what happened, not some myth about being tripped up or prosecuted for sex. They were ready to let him off the hook on both counts, he declined the offer.
Clinton broke a number of laws similar to Nixon, who also was being pursued for a non-policy related crime. The most egregious was the campaign finance laws relating to foreign powers, but more in addition. I won’t relate them all, but if that is your standard then Clinton got off easy. His wife actively participated in a number of transactions which violated a number of securities laws in addition to being a bribe. So spare me any tears for Clinton who all in all was an okay President in my book. However, I do think he and his wife should have suffered quite a bit for their legal, non-policy, transgressions.
Now let us examine Bush’s transgressions. Basically they come under policy disputes, and disputes over the law. You can say that he was wrong in his policies and that they violated the law if you wish. They may, but he doesn’t think so. This is what I consider a policy violation. These are the norm for every President. The Clinton administration was repeatedly told by the courts that various actions and policies were in violation of the law and the constitution. I don’t remember any of those times people calling for their impeachment. There were people who railed against them of course. Many claimed we were sliding down the hill towards tyranny because of them, and they sounded silly to me as well. That is why we have the courts, to tell us when the government is stepping over those boundaries. If we impeach or criminally prosecute every President who has their policies declared in violation of the law or our constitution we would have had to do so with every President we have ever had and ever will.
From my end, since I think far more that the government does should be considered unconstitutional, the jails would be damn well full of bureaucrats, politicians and other evil-doers.
Well I guess we are past that, but I believe in the rules. When Hillary or whoever comes waltzing into the white house and sets up some environmental program which leads to somebody losing their livelihood and it is later ruled unconstitutional under the takings clause or some such thing I promise not to rail on that she (or he) is some Queen/King who should be punished for thinking that protecting the environment puts them above the law.
I also will be glad to call for the impeachment of Bush if it turns out that while in office he has been awarding lucrative contracts to people who are making deposits in his name to secret bank accounts. One is crime of a personal nature, the aforementioned environmental policy amounts to a disagreement about the law, no matter how tenuous or unreasonable the legal reasoning was used to justify it. I felt that way about Kelo, which is a much bigger issue, and yet the court ruled in the governments favor. Had the government lost I wouldn’t have called for the local officials to be put in jail for theft no matter that it would have been satisfying.
Traditionally once it has been determined a program is unconstitutional or illegal by statute the program is halted, reformed or “retroactively” legislated so as to be legal. That is how it has always worked in the past and I see no reason for it not to continue in that fashion. That is the difference for me and I am quite consistent about it. Fight policy transgressions by this administration, just don’t claim they are unique or a crises.
That, I understand. We should care if the law is broken.
The problem is that FISA does not, and cannot, trump the Constitution. It’s a matter of supremecy. The Constitutional powers granted to the various branches of government cannot be taken away by a bill. The Constitution must be changed in order to do that. Accordingly, the Executive branch powers regarding the prosecution of war cannot be unilaterally curtailed by Congress (with a great many exceptions, to be sure).
You’re giving short shrift to the legal arguments. There are judicial decisions that support the President’s position. Indeed, even Volokh does not contend that the Article II argument is “bogus” although he does find it weak. The question is, is it reasonable? If it has an arguable basis in the law then it is reasonable. Whatever the consensus argument may be, it has no relevance.
Again, it does not matter if YOU don’t find it reasonable. That you disagree with the arguments does not make them unfounded or even wrong. In addition, FISA is not as permissive as you seem to think. For example, no warrant can be issued for longer than a year under FISA. What happens if we need longer?
The point is that if indeed Bush has transgressed the law, it was not for personal gain, but instead in the act of prtecting the nation. Clinton’s transgression was purely selfish. I don’t mean this to be a legal comparison, merely a moral one. I don’t think there could possibly be an actionable case against the President anyway.
The “tenuous” arguments to which I am referring are those that automatically assume the President has violated FISA, and that if so he should be prosecuted like a common criminal. This is wrong on many levels.
The arguments concerning the legality of the NSA program are based on incomplete information and only a passing understanding of the law itself. I do not mean to argue that FISA was absolutely not violated — it may very well have been. But that really is not the end of the story. How does the President’s inherent (i.e. Constitutional) authority to interdict enemy communications square with seemingly incompatible FISA provisions? In a normal conflict of laws situation, teh Constitution wins every time. But there is a lot of nuance to tease out of the question, and they are numerous factors that go into getting the answer right. Assumptions one way or the other are bound to be wrong, no matter how confident the assumer is.
OK. But this is a different issue than the NSA program.
Bill was lynched with the rope the Dems put up for Clairence Thomas. However, I don’t see how your points tie into the topic at hand.
Bush was caught?
I have a dang good idea that Bill Clinton used the IRS as a tool to attack his enemies. He wasn’t “caught”, and no one proved it, but there is a strong correlation that is highly suggestive.
Bush was never “caught” violating FISA, and frankly Clinton was likely guilty of far greater missdeeds that were done specifically to benifit the Clinton administration, including funny fundraising deals with forign powers.
No, I think the point of the thread is that it is actually about attacking the Republican President. The people attacking the President were silent when Clinton was working towards similar anti-terror efforts. And frankly, I consider Clinton’s efforts to be much worse towards US citizens, with less value against real terrorists.
The “tenuous†arguments to which I am referring are those that automatically assume the President has violated FISA, and that if so he should be prosecuted like a common criminal. This is wrong on many levels.
The arguments concerning the legality of the NSA program are based on incomplete information and only a passing understanding of the law itself. I do not mean to argue that FISA was absolutely not violated — it may very well have been. But that really is not the end of the story. How does the President’s inherent (i.e. Constitutional) authority to interdict enemy communications square with seemingly incompatible FISA provisions? In a normal conflict of laws situation, teh Constitution wins every time.
Long story short, it is in no way clear to me, to understate significantly, that the Constitution justifies Bush’s actions at all. I think the idea of the Constitution possibly trumping a law is fine, but the *only* mechanism to assert that superiority is the Supreme Court, first, and second, I find it pretty clear from Articles I, II, and III that Congress was granted the power to regulate FISA issues in the first place. And the courts have obviously agreed.
I don’t feel that the Bush Admin’s constitutional arguments were made in good faith. I feel that they were classic fig leaf arguments, based on the knowledge that any argument at all is good enough to grant the behavior when there is no one to challenge you.
At any rate, as to whether or not “the president should be prosecuted like a common criminal”, I’m not hooked on that outcome (good thing, to, because, not a chance in h*ll.) I think an impeachment trial would be reciprocal, objectively equal treatment of the relationship between the president and the law as was applied to Clinton, and I wouldn’t mind it. But I’m not fighting for that personally, either. I’d have settled for censure. Which was also backed away from.
But Lance’s question was “why are people so angry?” I may have come to grips with the minimal possibility of Bush being given the Clinton treatment, but my two cents remains, if you want to start looking into why people are angry, it starts with the feeling that their president can get away with whatever he wants. Or, in other words, differential treatment and perceived hypocrisy.
Since I consider them bot my President the “they mistreated Clinton” argument doesn’t move me at all. I think you are right however with many, but it doesn’t explain Mona or Greenwald (assuming their characterizations of their past is accurate.) That seems a shallow reason to me however given the importance of the issue. It doesn’t justify any claim that this President or his administration is a unique threat to our liberties, but it is honest.
More importantly they haven’t been treated differently when it comes to the kind of policy differences we are discussing. I don’t believe that much of the violations of statute and our constitution that have occurred in the past including under Clinton are in good faith either, though I admit that people are able to convince themselves often enough of some pretty outlandish things that many times they actually are. Most arguments on the second amendment, the takings clause and campaign finance reform are incredible to me, at least as incredible as the inherent powers of the president in wartime I am sure are to you.
As to the powers of the President that Michael refers to the courts may disagree, but that is hardly a basis for determining that the Bush administration is arguing in bad faith, though they may be. It should be remembered that every President before Bush, including Clinton argued that they had such authority. I am not sure they should, but that should at least demonstrate that it isn’t novel. Once again, under our sysytem the traditional remedy is the one being followed as it was under Clinton. No President since Reconstruction has been punished over such policy disagreements any differently than what is going on now. If we change that then that would be the novel thing, not that Bush makes what to many appears to be a tendentious reading of the Constitution.
My complaint is not just the anger, it is the claim of a unique depravity or threat from an administration which has not exceeded the bounds of his office (assuming the arguments of his critics are correct) or behavior that is even close to that of many of his predecessors. That is true as to the NSA, the Ptriot Act or the level of human rights issues. Bush is on the progressive side of our (and most definitely the worlds) history. That is true even if one restricts that to the last thirty years and the western world.
I guess in the end I agree with you glasnost, I do understand, but it isn’t right any more than the more extreme critiques of Clinton were right.
Lance, you’ve lost me.
More importantly they haven’t been treated differently when it comes to the kind of policy differences we are discussing.
You’re kidding me. Clinton broke the law - coming out of a hearings on his personal behavior and was impeached. Bush broke the law -violating substantive privacy rights of US citizens - and what?
How is the respective consequences so far not “treated differently?”
You’re conflating all kinds of things that don’t deserve to be conflated.
It’s not a “policy difference”. It’s breaking the law. Whatever the Clinton or other adminstrations may or may not have argued - we’re not making detailed assessments of the record here, just throwing out assertions - they were probably making these arguments in a **Court of Law**, to be ruled on by a **judge**. That’s respecting the system. Doing whatever the h*ck you feel like under cover of lawyers you are paying to create legal justifications as to why you can do it, is not respecting the system. It is criminal behavior.
Once again, under our sysytem the traditional remedy is the one being followed as it was under Clinton
Are you high? They *impeached* Clinton.
I have to tell you, I’m not enjoying this discussion. I don’t find Michael’s arguments credible, but at least he’s being systematic and specific about his point of view.
Michael:
The problem is that FISA does not, and cannot, trump the Constitution. It’s a matter of supremecy. The Constitutional powers granted to the various branches of government cannot be taken away by a bill.
Mike, consider the following:
regardless of the legal doctrine that says that a law cannot impinge upon the Constitutional powers of the other branches of government, the systemic method for resolving a law that the executive branch feels impinges upon his powers, is to challenge the law in the courts and accept their ruling. The courts, not the president, decides if a law violates the President’s constitutional powers. Any other method, such as just going ahead and breaking the law under a DOJ finding, gives the President de facto power to break any law he wants in any way according to his interpretation of his own constitutional powers.
So even if his “weak” arguments about his Constitutional perogative disallowing the right of Congress to regulate whether the NSA can wiretap US citizens are correct, his behavior was still wrong. It was contrary to the Constitutional system and method for resolving these questions.
Now it’s only a question of what one personally feels to be the appropriate consequences.
Go ahead, tell me what’s incorrect about the above.
Mostly this:
That’s not how it works. The courts only have jurisdiction over “cases or controversies” and cannot give advisory opinions (with one, very limited exception which does not apply here). In this instance we are talking about a conflict of laws issue (Art. II of Const. vs. FISA). Every president since FDR has insisted that such Art. II powers exist and have exercised them to some degree or another. When there has been overreach, and a case was filed, the Court’s have tailored the power. Until someone with standing files a legitimate claim against the Pres. regarding this issue, it can’t be resolved by the courts. Accordingly, the Pres. did just what he was supposed to — exercise the Constitutional power consistent with a reasonable interpretation of the law and, if an objection is raised in court, follow the judiciary’s ruling.
glasnost,
You obviously need to re-read the comment. The Clinton impeachment has no bearing. It was about personal conduct, not the application of policy. That is my point. Under Clinton the courts ruled his administration violated the law or the constitution numerous times. In not one instance of such rulings against his policies was he impeached or, as far as I know, was it ever even discussed seriously. Those were matters of policy and I would argue that any reasonable person in a number of those cases would have recognized that the courts would rule as they did. By your standard I should have argued for his impeachment. In a number of cases where the administration won I would argue that they should have lost under any reasonable reading of the law or Constitution. There were actual victims whose lives were altered dramatically by the actions of government. Nor is that unique to Clinton, the Bush administration has lost some as well that have not been made a cause celebre and every other President as well. FDR lost so many, and had to dismantle or alter so many of his programs that he preceded to alter the make up of the Supreme Court. Now that was radical.
If you don’t want to recognize the difference between losing a legal or constitutional argument (”breaking the law”) over a policy or how a policy is pursued as opposed to personal criminal conduct go ahead, argue we should treat them all the same. That would be consistent. However, I am being consistent with how it has always been done. Think of the hundreds of decisions which have been handed down by our courts over the years declaring the government has stepped over its bounds. Name one time when it has resulted in impeachment, criminal proceedings or even censure. You can’t, because it has never happened. If you find one you still will not have found an argument that it is the norm.
Every President we have ever had would have been impeached by that standard. I am being systematic and specific, the problem is you are refusing to acknowledge that there is a difference between policy disputes which you feel break the law and personal criminal activity. Even amongst policy disputes which break the law or violate the Constitution this is small potatoes if the press reports are accurate.
Look, you can spew all the invective at me you want if you demand that past Presidents be brought before the courts for their actions. I’ll tell you I think that is a bad way to run the government, but at least we will have a basis for disagreement. Set up a website and list the “crimes” of each President and why they should be prosecuted. I’ll even help you with the research. Heck, I’ll host the site because I think it would be instructive about how often our government violates our liberties. That will do my political beliefs some practical good. We can fill the website up just with a quick search of the records of the Supreme Court. I’ll dig into the archives of Reason magazine, Mother Jones, The National Review and other sources for all the cases where the government won, but should have lost because any reasonable reading of the Constitution would show they should have. We can even go after the little guys in various municipalities and states which have been slapped down for violating the law or our constitution. The Institute for Justice would be an ally there. We can go after those who for decades were denying the citizens of Massachusetts right to contraception before Griswold. The opportunity for denunciation, various impeachments, criminal prosecutions and censure should keep us busy for a while.
I am the one arguing we keep things going as we always have, you are proposing something radical and new. Even if that is the way to go, it doesn’t change my point which is that the behavior of this administration is in no way worse on civil liberties than most of the previous one’s. We would just be saying we are ready to raise the bar to a new height for this and future administrations to jump over. If so, I only ask that his critics on civil liberties admit that instead of acting as if he is some new and terrible threat.
glasnost,
I happen to think Clinton broke quite a few substansive laws. This includes shutting down a large mine in a Western state, an act that benifited a forign power that subsequently contributed to Clinton’s campaign chest, and IRS investigations into a surprising number of Clinton enemies. But I can’t PROVE he broke the law (at least in any way that’s actionable; see Gore’s point about “controlling legal authority”).
What can be proven is Clinton’s purgery. Purgery in a civil court case; harming not “zero actual citizens” as you claim but at least one in particular.
You think Bush breaks the law, but your thoughts on the matter are no stronger (and, IMHO, weaker) than my thoughts on Clinton breaking the laws I can’t prove he broke (or which are effectively unactionable; see Gore’s response above).
You challenge the law by violating it. That’s how you get standing.
If I wanted to challenge Bill’s unConstitutional gun ban, I’d have to be arrested for violating it. Otherwise I lack standing.
My reference to Gore’s point about “controlling legal authority†is that it’s a fact that the Clinton administration broke campaign finance laws. There just were no cops around to arrest them. In the mine shut done incident, Clinton returned the money IIRC, but when he received it he knew it was coming from a forign power. As lawyers, the Clinton’s (and Gore) were careful what was said in the transactions, for essentially the same reason he didn’t have intercourse with the chubby chick.
It’s a fact that he didn’t have intercourse with that woman . . . and he didn’t since he knew he might have to lie about it. His behaviour was the same with respect to financial dealings. One of the things I despise most about Clinton was that he was 80% DNC fundraiser, and at most 20% US President.
In my last post, make that “mine shut-down incident”.
Lance,
I see what you’re saying. It’s a reasonable concept. I still don’t believe it.
Why? I don’t feel that Clinton’s legal argumentations and policy differences that were judged to be in conflict with whatever statutes, are in the same league of violation. It’s that simple. Now, I’ll freely admit that I’m no expert on whatever laws it’s claimed that Clinton broke through his policy enactments. In fact, I don’t really know what incidents you’re talking about. But I’m not saying I know they don’t exist.
I do, however, feel pretty certain that his policies never ignored a clear and obvious *entire point* of a federal statute, *unless he challenged that statute in court* and won.
As an example - did Clinton’s use, oh, the interpretation of the “endangered species act”, or whatever, to extend protection to species that some people feel weren’t endangered? Okay, policy dispute. Maybe even court ruling that he was wrong. I don’t hold Bush to be an unusually serious threat to balance-of-powers because of his affirmative action arguments, his faith-based policies, his administration’s bribing of Armstrong Williams, or his suppressing of the release of presidential libraries. Or even his FBI’s “national security letters”. These represent, in order:
a) arguments before a court- fine.(in this context, anyway).
b)outgrowth of laws passed by Congress.
c)isolated incident, I assume.
d) questionable stretch of presidential perogative/policy.
e) questionable interpretation of existing law (Patriot Act).
The wiretap situation fits into none of the above. d) and e) might be comparable to Clinton. But Clinton never completely ignored an uneqivocal legal mandate the way Bush has done. Find me a case of it, and I’ll retract.
FISA does not have ifs, ands, or buts. It’s the law of the land. There’s nothing to stretch. It’s categorically and completely illegal to do what was done. Now, that’s just my judgement, but it’s a logical judgement. The logic is - law says you must always have warrants from the FISA court. Policy is: not getting warrants. I don’t see the holes in this, and I don’t feel it’s the same.
And I understand your argument about personal lawbreaking vs. policy lawbreaking. For the record, I’m not in favor of impeachment, either pragmatically or in my holistic sense of what’s best for the nation. But I don’t feel that policy lawbreaking is somehow morally more okay than personal lawbreaking. Policy lawbreaking is actually much more dangerous, to me, precisely because it is policy and not inherently illegitimate, a political collapse waiting to happen.
Now, how does Bush compare to history? I don’t know. I think, on civil liberties, he’s worse than the last five presidents, and maybe worse than anyone since FDR. Some of this is a product of historical circumstance, but it’s still the way the situation is. I don’t know if he was on a one-to-one basis, worse than FDR, who I think was a great guy. You’re right, FDR put people in internment camps, and Lincoln suspended habeus corpus. But, the difference is not just that those happened before I was born, but that those have been repudiated! They are no longer a threat.
Civil liberty rollbacks happening *now* have *not* been repudiated and stand a chance of becoming permananent, and that’s what agitates me.
Lastly, I find *general* violations of civil liberty - voter suppression, wiretapping, police powers, changing rules on the court system, free-speech limitations, and so on to be much more threatening, personally, than alledged constutional violations by liberal presidents on issues I personally feel to be marginal. Speech, assoications, spying, and police powers form the core of democracies vs. autocracies, to me. There are democracies with restrictive firearms laws, but countries with unchecked wiretapping are headed down the wrong path. This final set of arguments is completely my own judgement.