George Will's Imbalance
George Will is a good columnist. We like him, most of the time. However, op-ed today was simply wrong. Hugh Hewitt picked up on this today, and even brought it up to Mark Steyn. Andrew McCarthy of National Review put up an absolutely scthing response. I am hoping I can do at least as half as well as Andrew did.
The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 -- the Authorization for Use of Military Force (AUMF) -- the resulting legislation might be longer than Proust's "Remembrance of Things Past." Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.
But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes -- going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.
Mr. Will just became the first prominent conservative that we know of that has decided to latch onto the Democrat talking point regarding FISA. Mr. Will obviously has forgotten the first rule when it comes to laws: Nothing supersedes the Constitution. The FISA law does precisely that in a time of war. By demanding that the president abide by a law that clearly weakens his ability to handle foreign affairs. The president is tasked with the security of the nation, and under the Constitution, the president has virtually sole control over the foreign affairs regarding this nation. As Andrew McCarthy pointed out, only the president has the right to make treaties. Yes, Congress must approve them, but the president can make them; a power Congress does not possess, therefore their power is diminished in this case. The primacy of the president is enumerated in the Constitution.
Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance -- and that if the administration had asked, Congress would have refused to authorize it. The first assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it. Did the administration, until the program became known two months ago? Or was the AUMF then seized upon as a justification? Equally implausible is the idea that in the months after Sept. 11, Congress would have refused to revise the 1978 law in ways that would authorize, with some supervision, NSA surveillance that, even in today's more contentious climate, most serious people consider conducive to national security.
The NSA is considered connected to the military because it works with their intelligence often, especially now. Their directors have always been serving officers in the military. Lt. Gen. Keith Anderson, US Army, currently heads up the NSA. LTG Anderson has had a storied career in the army including much of it within the intelligence community. His credentials alone would make George Will cry. Needless to say, as it is considered a division of the military, it falls under the "to use all necessary and appropriate force" argument that is backed up thoroughly by the law. They are included regardless of who says they are not. He also alludes to the idea that there is no supervision over this program. That is patently false. Since his Executive Order, the program has been reviewed every forty-five days, and has been shut down twice in that time when questions arose to its validity and legality.
Anyway, the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution's text and do not strictly construe the language of statutes.
The language is being construed properly. Indeed, I suggest that Mr. Will read up on it. John Yoo does an outstanding job proving the point in his new book "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11." Andrew McCarthy also cited Mr. Yoo's work, and Thomas and I have both just recently finished reading it. Mr. Yoo lays out the case for the president's powers during war, and the fact that he does have inherent powers that the Congress may not challenge without proper justification. To even allege that the program is illegal is a farce. Research into the court cases surrounding such surveillance have always stood on the side of the president. Clay, Butenko, US v. US District Court, and In re Sealed Case 02-001 all have upheld his power to conduct warrantless surveillance.
The administration's argument about the legality of the NSA program also has been discordant with its argument about the urgency of extending the USA Patriot Act. Many provisions of that act are superfluous if a president's wartime powers are as far-reaching as today's president says they are.
And if, as some administration supporters say, amending the 1978 act to meet today's exigencies would have given America's enemies dangerous information about our capabilities and intentions, surely FISA and the Patriot Act were both informative. Intelligence professionals reportedly say that the behavior of suspected terrorists has changed since Dec. 15, when the New York Times revealed the NSA surveillance. But surely America's enemies have assumed that our technologically sophisticated nation has been trying, in ways known and unknown, to eavesdrop on them.
Mr. Will seems to forget that up until 2002, these people shared the security of a nation that was not truly steadfast in her approach to dealing with terror. And the steps that were taken, they were blocked from doing. The FISC has modified more warrants under President Bush than any other president prior to him. I know because I am the one who posted it right here. With a court constraining his ability to prosecute the war, and court precedent backing him up, he went around FISA and the FISC. They were obstructing his presidential duties, enumerated under the Constitution, and within the AUMF. As for the change in their tactics, it is apparent that they have. A recent series of robberies across the nation of disposable cell phones shows that something is up, and it is too coincidental not to be connected. A Wal-Mart employee after Christmas admitted to calling the FBI after a customer came into purches over 200 phones in one shot. Suspicious enough for an awake store clerk, but I suppose it is not obvious enough for Mr. Will that the tactics may have indeed changed.
Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."
John Yoo addresses this issue in his book, quite extensively, including a history of how the president ended up being the one who handled foreign affairs. Here, let me cite the Constitution for Mr. Will:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.
This clause, the second clause of Section 2, specifically gives the president the sole power to handle foreign affairs. The only role Congress plays in it is to approve those treaties the president wishes to have the nation be a part of. To argue to the contrary is likening the argument to the Senate's fallacious ideas that they, too, can choose nominees. It holds no water. The president's primacy in this retrospect is clear, and implicit. He controls the foreign affairs of the nation. He is the President of the United States, and the executive branch serves as the head of the nation; what he chooses to do cannot be superseded by Congress. It's simple, effective check on what it dislikes is a vote on those treaties. It cannot even grant itself authority through legislation that takes the handling of foreign relations from the president; likewise, the president cannot grant them extra authority.
The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration. This faux toughness is folly, given that the Supreme Court, when rejecting President Harry S Truman's claim that his inherent powers as commander in chief allowed him to seize steel mills during the Korean War, held that presidential authority is weakest when it clashes with Congress.
First, let us look at Justice Jackson's thoughts regarding said steel mill case:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
And the weakness of Mr. Will's argument is laid bare with the inclusion of the steel mill case. The cases I cited above had nothing to do with the seizure of a few steel mills. They had everything to do with the courts that have upheld the president's power to conduct warrantless wiretaps/surveillance in the name of national security. As yet, the United States Supreme Court has yet to render a decision on whether the president's authority is as complete as what has been asserted. It would stand to reason that he does, and that even the high court would agree with him. Furthermore, there is no clash with Congress. I dislike people bringing this part of the argument up. Congress has no authority in this matter other than oversight, and they cannot stop him from doing this. The only way that they can is to dissolve the NSA. Cut it's funding so it cannot operate. However, that chutzpah might be considered, in some circles, as a form of political seppuku.
Immediately after Sept. 11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the Sept. 11 terrorists made.
But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.
Why is it that people like Mr. Will cannot seem to grasp the most basic Constitutional powers? Cass Sunstein, noted Con Law expert stated the following while being interviewed by Hugh Hewitt on December 23rd:
HH: First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?
CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.
HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?
CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.
I am sorry, but Mr. Will does not come close to making a case against the warrantless surveillance. It is inherent. It is legal, backed up by precedent in the courts, and one utilized by presidents of the past. He need not approach Congress for anything regarding such matters because of his Constitutional authority. Mr. Will, while we respect him, has shown that like the Democrats, he has no clue as to what he is talking about. It would be best that he stick to other topics, and leave the legalities to the experts who know them and understand them far better than he does.
The Bunny ;)
George Will is a good columnist. We like him, most of the time. However, op-ed today was simply wrong. Hugh Hewitt picked up on this today, and even brought it up to Mark Steyn. Andrew McCarthy of National Review put up an absolutely scthing response. I am hoping I can do at least as half as well as Andrew did.
The next time a president asks Congress to pass something akin to what Congress passed on Sept. 14, 2001 -- the Authorization for Use of Military Force (AUMF) -- the resulting legislation might be longer than Proust's "Remembrance of Things Past." Congress, remembering what is happening today, might stipulate all the statutes and constitutional understandings that it does not intend the act to repeal or supersede.
But, then, perhaps no future president will ask for such congressional involvement in the gravest decision government makes -- going to war. Why would future presidents ask, if the present administration successfully asserts its current doctrine? It is that whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be. This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance.
Mr. Will just became the first prominent conservative that we know of that has decided to latch onto the Democrat talking point regarding FISA. Mr. Will obviously has forgotten the first rule when it comes to laws: Nothing supersedes the Constitution. The FISA law does precisely that in a time of war. By demanding that the president abide by a law that clearly weakens his ability to handle foreign affairs. The president is tasked with the security of the nation, and under the Constitution, the president has virtually sole control over the foreign affairs regarding this nation. As Andrew McCarthy pointed out, only the president has the right to make treaties. Yes, Congress must approve them, but the president can make them; a power Congress does not possess, therefore their power is diminished in this case. The primacy of the president is enumerated in the Constitution.
Administration supporters incoherently argue that the AUMF also authorized the NSA surveillance -- and that if the administration had asked, Congress would have refused to authorize it. The first assertion is implausible: None of the 518 legislators who voted for the AUMF has said that he or she then thought it contained the permissiveness the administration discerns in it. Did the administration, until the program became known two months ago? Or was the AUMF then seized upon as a justification? Equally implausible is the idea that in the months after Sept. 11, Congress would have refused to revise the 1978 law in ways that would authorize, with some supervision, NSA surveillance that, even in today's more contentious climate, most serious people consider conducive to national security.
The NSA is considered connected to the military because it works with their intelligence often, especially now. Their directors have always been serving officers in the military. Lt. Gen. Keith Anderson, US Army, currently heads up the NSA. LTG Anderson has had a storied career in the army including much of it within the intelligence community. His credentials alone would make George Will cry. Needless to say, as it is considered a division of the military, it falls under the "to use all necessary and appropriate force" argument that is backed up thoroughly by the law. They are included regardless of who says they are not. He also alludes to the idea that there is no supervision over this program. That is patently false. Since his Executive Order, the program has been reviewed every forty-five days, and has been shut down twice in that time when questions arose to its validity and legality.
Anyway, the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution's text and do not strictly construe the language of statutes.
The language is being construed properly. Indeed, I suggest that Mr. Will read up on it. John Yoo does an outstanding job proving the point in his new book "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11." Andrew McCarthy also cited Mr. Yoo's work, and Thomas and I have both just recently finished reading it. Mr. Yoo lays out the case for the president's powers during war, and the fact that he does have inherent powers that the Congress may not challenge without proper justification. To even allege that the program is illegal is a farce. Research into the court cases surrounding such surveillance have always stood on the side of the president. Clay, Butenko, US v. US District Court, and In re Sealed Case 02-001 all have upheld his power to conduct warrantless surveillance.
The administration's argument about the legality of the NSA program also has been discordant with its argument about the urgency of extending the USA Patriot Act. Many provisions of that act are superfluous if a president's wartime powers are as far-reaching as today's president says they are.
And if, as some administration supporters say, amending the 1978 act to meet today's exigencies would have given America's enemies dangerous information about our capabilities and intentions, surely FISA and the Patriot Act were both informative. Intelligence professionals reportedly say that the behavior of suspected terrorists has changed since Dec. 15, when the New York Times revealed the NSA surveillance. But surely America's enemies have assumed that our technologically sophisticated nation has been trying, in ways known and unknown, to eavesdrop on them.
Mr. Will seems to forget that up until 2002, these people shared the security of a nation that was not truly steadfast in her approach to dealing with terror. And the steps that were taken, they were blocked from doing. The FISC has modified more warrants under President Bush than any other president prior to him. I know because I am the one who posted it right here. With a court constraining his ability to prosecute the war, and court precedent backing him up, he went around FISA and the FISC. They were obstructing his presidential duties, enumerated under the Constitution, and within the AUMF. As for the change in their tactics, it is apparent that they have. A recent series of robberies across the nation of disposable cell phones shows that something is up, and it is too coincidental not to be connected. A Wal-Mart employee after Christmas admitted to calling the FBI after a customer came into purches over 200 phones in one shot. Suspicious enough for an awake store clerk, but I suppose it is not obvious enough for Mr. Will that the tactics may have indeed changed.
Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."
John Yoo addresses this issue in his book, quite extensively, including a history of how the president ended up being the one who handled foreign affairs. Here, let me cite the Constitution for Mr. Will:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.
This clause, the second clause of Section 2, specifically gives the president the sole power to handle foreign affairs. The only role Congress plays in it is to approve those treaties the president wishes to have the nation be a part of. To argue to the contrary is likening the argument to the Senate's fallacious ideas that they, too, can choose nominees. It holds no water. The president's primacy in this retrospect is clear, and implicit. He controls the foreign affairs of the nation. He is the President of the United States, and the executive branch serves as the head of the nation; what he chooses to do cannot be superseded by Congress. It's simple, effective check on what it dislikes is a vote on those treaties. It cannot even grant itself authority through legislation that takes the handling of foreign relations from the president; likewise, the president cannot grant them extra authority.
The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration. This faux toughness is folly, given that the Supreme Court, when rejecting President Harry S Truman's claim that his inherent powers as commander in chief allowed him to seize steel mills during the Korean War, held that presidential authority is weakest when it clashes with Congress.
First, let us look at Justice Jackson's thoughts regarding said steel mill case:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
And the weakness of Mr. Will's argument is laid bare with the inclusion of the steel mill case. The cases I cited above had nothing to do with the seizure of a few steel mills. They had everything to do with the courts that have upheld the president's power to conduct warrantless wiretaps/surveillance in the name of national security. As yet, the United States Supreme Court has yet to render a decision on whether the president's authority is as complete as what has been asserted. It would stand to reason that he does, and that even the high court would agree with him. Furthermore, there is no clash with Congress. I dislike people bringing this part of the argument up. Congress has no authority in this matter other than oversight, and they cannot stop him from doing this. The only way that they can is to dissolve the NSA. Cut it's funding so it cannot operate. However, that chutzpah might be considered, in some circles, as a form of political seppuku.
Immediately after Sept. 11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the Sept. 11 terrorists made.
But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.
Why is it that people like Mr. Will cannot seem to grasp the most basic Constitutional powers? Cass Sunstein, noted Con Law expert stated the following while being interviewed by Hugh Hewitt on December 23rd:
HH: First, did the authorization for the use of military force from 2001 authorize the president's action with regards to conducting surveillance on foreign powers, including al Qaeda, in contact with their agents in America, Professor?
CS: Well, probably. If the Congress authorizes the president to use force, a pretty natural incident of that is to engage in surveillance. So if there's on the battlefield some communication between Taliban and al Qaeda, the president can monitor that. If al Qaeda calls the United States, the president can probably monitor that, too, as part of waging against al Qaeda.
HH: Very good. Part two of your analysis...If...whether or not the AUMF does, does the Constitution give the president inherent authority to do what he did?
CS: That's less clear, but there's a very strong argument the president does have that authority. All the lower courts that have investigated the issue have so said. So as part of the president's power as executive, there's a strong argument that he can monitor conversations from overseas, especially if they're al Qaeda communications in the aftermath of 9/11. So what I guess I do is put the two arguments together. It's a little technical, but I think pretty important, which is that since the president has a plausible claim that he has inherent authority to do this, that is to monitor communications from threats outside our borders, we should be pretty willing to interpret a Congressional authorization to use force in a way that conforms to the president's possible Constitutional authority. So that is if you put the Constitutional authority together with the statutory authorization, the president's on pretty good ground.
I am sorry, but Mr. Will does not come close to making a case against the warrantless surveillance. It is inherent. It is legal, backed up by precedent in the courts, and one utilized by presidents of the past. He need not approach Congress for anything regarding such matters because of his Constitutional authority. Mr. Will, while we respect him, has shown that like the Democrats, he has no clue as to what he is talking about. It would be best that he stick to other topics, and leave the legalities to the experts who know them and understand them far better than he does.
The Bunny ;)
posted by Syd And Vaughn | 8:48 PM
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Very cool design! Useful information. Go on!
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