Wednesday, December 21, 2005

Bush above law and following it AG claims

since Jack Balkin et al say it so much better (them bein' law professors and all) I'll make like Instapundit and just refer you to their well written posts which I happen to agree with. To wit:

"...The latest version is Attorney General Gonzales' assertion that the September 18, 2001 AUMF [Authorization for Use of Military Force] -- which gave Congressional approval to fight terrorism militarily-- gives the President carte blanche to override the Foreign Intelligence Surveillance Act of 1978. On its face, the claim is preposterous. The logic of the claim, however, is far more important. If the AUMF impliedly alters federal laws that limit the President's power to fight terrorism, then there is no law that the President may not disregard in the name of fighting terrorism.

The second, and even more chilling argument is that the President has inherent authority to fight terrorism even absent the AUMF. Under this theory, the President can create exceptions to law whenever he determines that it is necessary to fight terrorism. If so, then not only is there no law the President may disregard, but all attempts by Congress to rein him in are presumptively unconstitutional because they interfere with his prerogative to determine the nature of the terrorist threat and the most effective means to fight it.

Thus, the strategy of "governing through terrorism"-- using the threat of terrorism as a justification for maximizing presidential power and minimizing presidential accountability inevitably produces bad incentives for executive officials. Ever-expanding power without accountability invites self-righteousness and overreaching."

in another great post there by Marty Lederman, he describes AG's twisted logic:

"But the Attorney General's press conference today makes it clear that that's their story, and they're sticking to it. The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims.

First, Gonzales is asked why, if this authority is so important, they didn't just "address that issue and fix it," i.e., through statutory amendment, rather than taking the "backdoor approach" [of pretending that it had already been authorized]. Here's his response:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

Did you catch that? It's a two-part answer: (1) Congress has authorized the circumvention of FISA (in the AUMF); and (ii) We didn't ask Congress for an amendment to FISA because we were informed they would have denied it.

And then there's this exchange, in which the answers are inverted (1. We couldn't have gotten congressional authorization; 2. In any event, we got congressional authorization):

Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

The interesting question now, of course, is whether Congress will permit itself to be treated with such contempt."

recall Alberto is our same friend who advocates torture. Balkin has another good post on that. my sentiment echos commenter George Gregg who says:

"Basically, when the need for breaking a law is so extreme in one's estimation that it warrants doing so, one goes ahead and does it and accepts the consequences of that afterward. If I must break into someone's home to save them from a fire, I don't worry about the illegality of breaking and entering. I don't worry about destroying their front door, breaking their window, pulling their frightened child out of the burning house without permission. I trust, however, that the system of justice we have in a civilized society can take the context into consideration when determining whether to charge me for a crime or, if so, on what kind of punishment I deserve. We don't need a set of exceptions to the law against breaking and entering to factor in the possibiity of saving lives from a fire.

So with torture. Make a total ban, with the understanding that, if there is such a compelling reason to break the law, it is always within the realm of possibility. But that the one who does it will have to answer to the law afterward as to whether it was truly an overriding, compelling need that drove the breach."