If we take the Hill’s portrayal of its sources as an accurate picture of the White House’s not-for-attribution statements and attitude, and put it next to an administration that insists it is “astounding” for Congress to even consider fulfilling its War Powers Clause/War Powers Act responsibilities (and yes, they are responsibilities and not just prerogatives) — we see a posture that goes way beyond the mere “unitary executive” theory. We see, in short, an administration asserting a monarchical supremacy that inherently assumes that there’s no need to even rhetorically argue the legality of actions, much less halt those actions.
Category Archives: Unitary Executive
If you had a ounce of doubt left
Obama intends to rule just as W did. I posted this link on my Facebook page last night:
White House Is Drafting Executive Order to Allow Indefinite Detention; Move Would Bypass Congress
The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, is drafting an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.
Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.
Ya think? “Change you can believe in?”
And let the mind-fuck begin:
One administration official suggested the White House was already trying to build support for an executive order.
“Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” the official said. Such an order can be rescinded and would not block later efforts to write legislation, but civil liberties groups generally oppose long-term detention, arguing that detainees should either be prosecuted or released.
Um…what civil liberties group has suggested this? This is just a flat out lie by the Obama Administration. I’m a card-carrying sustaining member of the ACLU and I’ve not gotten any word from them that this would be an acceptable solution. As the article implies, the ACLU has always asserted that our system is fully capable of either trying or freeing these detainees. Their position has always been that the government has a duty to either charge and try the detainees, or set them free. End of discussion.
Always with his eye on the next election, and fearing a backlash from his own party, Obama has done a bit of a 180 on the “national kangaroo security courts.”
Some of Obama’s top legal advisers, along with a handful of influential Republican and Democratic lawmakers, have pushed for the creation of a “national security court” to supervise the incarceration of detainees deemed too dangerous to release but who cannot be charged or tried.
But the three senior government officials said the White House has turned away from that option, at least for now, because legislation establishing a special court would be both difficult to pass and likely to fracture Obama’s own party. These officials, as well as others interviewed for this story, spoke on the condition of anonymity because they were not authorized to speak publicly about internal deliberations.
[...]
Three months into the Justice Department’s reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees can not be charged or released.
Why? Because we fucked up? Yes, that is what it boils down to. And it’s time for We the People to wake up and understand, if this can be done to these detainees, it can be done to us. Once a president or a government asserts that it has the authority to set aside the law for a particular group, there is nothing to stop them from doing it again and again and again.
Finally, for a Constitutional scholar, Obama sures seems in the dark about what his duties are and what powers belong to Congress. (Note that it is the legislative branch which is addressed first in the Constitution, not the executive. Also take note of which article has a more detailed list of powers.)
Lawyers for the administration are now in negotiations with Sens. Carl Levin, D-Mich., and Lindsey Graham, R-S.C., over separate legislation that would revamp military commissions. A senior Republican staff member said that senators have yet to see “a comprehensive, detailed policy” on long-term detention from the administration.
“They can do it without congressional backing, but I think there would be very strong concerns,” the staff member said, adding that “Congress could cut off funding” for any detention system established in the United States.
Concerns are growing among Obama’s advisers that Congress may try to assert too much control over the process. Earlier this week, Obama signed an appropriations bill that forces the administration to report to Congress before moving any detainee out of Guantanamo and prevents the White House from using available funds to move detainees onto U.S. soil.
“Legislation could kill Obama’s plans,” said one government official involved. The official said an executive order could be the best option for the president at this juncture.
Oh well, then, that settles it. We musn’t let anything as mundane as the separation of powers get in the way of the monarch we’ve elected now. I guess the Constitutional Scholar is unaware of Article Two, Section 3 which states:
He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient;
And if there is any doubt as to which branch of government should be dealing with the fate of the detainees, Article One, Section 8 enumerates the the duties of Congress. Among them are these three that follow in succession:
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The President gets to recommend legislation. The Executive Branch doesn’t get to legislate by Executive Order, and he most definitely is not allowed to go around the courts or Congress to lock up even one person without charge or trial, let alone 90.
“Sovereign Immunity”
Greenwald (Yes, again. He’s one of the few voices on the left actually speaking out on this):
But late Friday afternoon, the Obama DOJ filed the government’s first response to EFF’s lawsuit(.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush’s NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the “state secrets” privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new “sovereign immunity” claim of breathtaking scope — never before advanced even by the Bush administration — that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is “willful disclosure” of the illegally intercepted communications.
In other words, beyond even the outrageously broad “state secrets” privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and — even if what they’re doing is blatantly illegal and they know it’s illegal — you are barred from suing them unless they “willfully disclose” to the public what they have learned.
Joe Cannon speculates as to the “why” which he asserts has much to do with the not-so-secret NSA technology of mass surveillance. Go read. It will make you feel so protected.
“What we are talking about is, I believe, an already-existent system which sucks in everything: All landline phone calls, all cell phone calls (although many argue that VOIP is still secure), all email, all driver’s license information, all transaction records, all credit histories. Everything. From everyone.
The MAEP scoops it all up. Data-mining techniques winnow it down.”
That’s the “state secret” Obama will not discuss in public. No, I’m not rationalizing his move: An explanation is not an excuse. We need to have candid public debate over the NSA’s new capabilities.
Hoo boy.
There’s a reason I’ve placed “Obamabots” as a sub-category to Barack Obama. Not all of Obama’s supporters fall into this category (some of them are actually waking up to what we tried to tell them all along) but Joe’s capture of some of the still starry-eyed Obama supporters over at Democratic Underground reminds me of not a few of those Bush supporters who would twist themselves into all kinds of ideological pretzels to justify their guy’s actions. They know it’s wrong, but they just can bring themselves to admit the obvious. So sad.
Frightening
Forget my “encouraging news” comment from my post below. Glenn Greenwald lays bare the Obama administration’s intentions when it comes to executive power.
According to Obama, only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind. Therefore, the President has the unilateral, unchallengeable power to prevent any judicial challenges to his actions by simply declaring that the relevant evidence is a secret and refusing to turn it over to a court, even if ordered to do so. That’s the argument which the Obama DOJ is now aggressively advancing — all in order to block any judicial adjudication of Bush’s now-dormant NSA program.
[ . . . ]
. . . after a few symbolic (and potentially important) decrees in the first week, which I praised at the time — the Obama administration’s approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal. None of this has anything to do with complaints that he hasn’t yet done enough. It’s the opposite: these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.
In other news
Different day, same Bush (Buck Naked Politics)
More on the bailout, and it ain’t pretty
Any of you catch this? WKW at William K. Wolfrum Chronicles:
From Section 8 of the Treasury’s Financial-Bailout Proposal to Congress:
“Decisions by the Secretary [Henry Paulson] pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”
If this bail out passes, everything U.S. Treasury Secretary Henry “We need this to be clean and to be quick” Paulson says and does goes, without question or review.
Anglachel quotes Krugman and riffs on Mother of All No-Docs
So, Hank Paulson wants the US taxpayers to make a loan to Wall Street. It seems that the big financial firms are underwater on the investments they made.
They don’t want to provide actual balance sheets, just self-reported assets which may or may not exist. They want borrow the full value with no collateral down. Oh, and none of that pesky insurance against their defaults. They don’t have any proof of income, and their employers can’t really be reached. In fact, it’s not clear they have any employment at the moment.
We’re talking major league NINJA loans here. Oh, and it appears to be a 0% interest loan, too.In short, the Wall Street banks are asking to be excused from the kind of underwriting of their credit-worthiness and ability to repay that typifies the toxic loans (subprime, ALt-A, prime, whatever) that got us into this mess in the first place. And Paulson wants to give them exactly that.
For a “real life” perspective on this, go read The Red Queen’s letter to her congress critters and the presidential candidates.
The government’s first and most important job is to provide security for the people. For the Republicans, this has always been interpreted to mean strictly military security. But the current economy is inflicting a kind of violence on the populace that only strong governmental measures can stop. It is your job to protect us. The current plan from the treasury department will only strengthen the case for continued economic violence against the American people. It might be a better idea to just take the 700 billion and directly pay off as many sub-prime mortgages as possible. At least then we’d know the money was going to the people who need it. What difference does it make that they are paying income taxes instead of mortgages? Households first, then banks and brokers and insurance companies. This country is made up of households and the people that create them. And we are suffering. Please do you job and stop this continued assault on the American people. Don’t pass the bailout bill without remembering who is paying for it, and how little we will benefit from it.
Anglachel again:
As bad as the publically stated objectives for Paulson’s plan may be, they are a misrepresentation to cover up the even more egregious truth of what Paulson actually intends. And the Democratic leadership is 100% in the know about what Paulson intends. Read this excerpt from naked capitalism’s post Why You Should Hate the Treasury Bailout Proposal
Go read her whole post and click over to naked capitalism while you’re at it.
While reading it dawned on me. Damn! They couldn’t get our SS money, so they are doing it this way. The numbers are about the same!
Anglachel concludes:
This really is little more than a scam to make the taxpayers provide the money to cover the losses for all the bad debt issued by the financial industry. What the Democrats have to do is refuse to get on board and put forward their own legislation that actually addresses the problem, send that to Bush and dare the bastard to veto it. Hang this around Bush’s neck and stop letting the High Broderists shame the Dems into backing down. Barney Frank and Hillary are showing them how it’s done.
Yes, Harry & Nancy, it IS class warfare, there is no “bipartisan” option, and you have a world historic moment in which to redefine both your party and your nation for the better.
Obama and the Supreme Court
Cass Sunstein is an advisor for Obama for America? That is extremely troubling as Cass Sunstein holds views that I believe should be anathema to most progressives.
In the comments it is mentioned that Sunstein is often mentioned as Obama’s first SCOTUS pick.
That is a scary thought (5.00 / 3) (#57)
by talex on Sat Jun 21, 2008 at 10:13:36 AM ESTAlthough Presidents do tend to nominate those who are in within their circle of influence. And that is the case here.
As others have said here if their was one reason to vote for Obama over McCain it would be because of their choice for the SCOTUS. But in this case if it were Sunstein then we no longer have that reason to vote for Obama.
It could be correctly argued that it would be easier for a Democratic majority to beat back a bad McCain nomination than it would for them to beat back a nomination from a Democratic President.
Think about that people.
And:
My oh my (5.00 / 6) (#23)
by hookfan on Sat Jun 21, 2008 at 09:29:27 AM ESTand the reasons for women to vote for Obama seem to be getting less and less. I thought SCOTUS was the big reason to vote for Obama. Couple this with his change on withdrawal from Iraq, flip on Nafta and campaign finance, and now fisa, explain to me again why a progressive would vote for Obama? Is the only reason to be against McCain?
I’m through. I won’t vote for Obama now. Nor will I support a party that has brought us this debacle. Where will I go? I dunno. Guess I will wander in the wilderness for awhile. . .
Blueprint for Bush?
“The first thing we do, let’s kill all the lawyers.” ~ character in William Shakespeare’s Henry VI (Part 2), Act IV, Scene II
Things in Pakistan are really bad. And Musharaf is Bush’s boy.
Behind the public rage of Pakistan’s lawyers, who protested for a second day on Tuesday, lies a long-smoldering resentment toward the country’s military president, who at first held out promise for educated, politically moderate Pakistanis, but steadily squandered their support.That disappointment turned to fury after the president, Gen. Pervez Musharraf, abolished the Supreme Court and scrapped the Constitution, touching a raw nerve among Pakistan’s lawyers, some with degrees from the best universities abroad and with experience in how other societies had preserved legal rights.
Hundreds of lawyers took to the streets again in the eastern city of Lahore and in Multan, about 200 miles to the southwest of Lahore. The police arrested scores of protesters, and more than 100 lawyers were injured in street battles.In interviews on Tuesday, a day after hundreds were tear-gassed, beaten and rounded up by the police, the lawyers said they had taken to the streets because they felt that Pakistan’s first taste of judicial independence was being snatched away.
“How do you function as a lawyer when the law is what the general says it is?” said a prominent Islamabad lawyer, Babar Sattar, who has a Harvard law degree.
I swear, you could substitute United States for Pakistan, Bush for Musharaf, etc, in this article and it would sound like us. Seriously, this sounds like our country, doesn’t it?.
By then, it was clear, he said, that the general was keeping the opposition political parties headed by two former prime ministers, Benazir Bhutto and Mr. Sharif, out of the political arena.“That vacuum was filled by the religious forces,” Mr. Minallah said. “Now Musharraf is targeting the liberal forces of this country. Yet they are the ones who want to fight extremism.”
The lawyers have been the only force in the country to mount protests since Saturday night. The political parties have remained notably subdued.
Ms. Bhutto, leader of the country’s largest opposition party, returned to Pakistan in October after living abroad for eight years to avoid corruption charges. She was hoping to find a way to share power with General Musharraf, her old nemesis.
Sigh.
Hear, hear!
Exactly. From this morning’s NYT letters to the editor:
Re “Defying the Imperial Presidency” (editorial, July 26):The House Judiciary Committee, by voting to hold Harriet E. Miers, the former White House counsel, and Joshua B. Bolten, President Bush’s chief of staff, in contempt, did what the Constitution demanded of it. It reclaimed its oversight responsibilities, which this imperial presidency refuses to recognize.
But before we become too intoxicated by this reaffirmation of our democratic principles, let us not forget that all 17 Republican members of this committee voted against holding these two in contempt.
This is an invitation, perhaps, for the voting public to hold the Republicans in contempt when Election Day arrives in November 2008.
Morris Roth
Fort Lee, N.J., July 26, 2007
Next on my "to read" list – It Can Happen Here
I can’t wait to read Joe Conason’s new book. SusanG (one of my favorite bloggers at DailyKos) reviews it here. Here’s a snippet:
Conason, after introducing a bare-bones synopsis of It Can’t Happen Here, breaks his own book into digestible sections, beginning with “The ‘Post-9/11 Worldview’ of Karl Rove,” which explores the rise of the notion that this nation is at permanent war, that civil liberties must be surrendered for our own protection and that anyone who questions this philosophy is a traitor. The second section, “Lawlessness and Order,” outlines the often under-the-radar rise of restrictions and controls more closely associated with a police state than a functioning democracy. The third section, “State Secrets and Unofficial Propaganda,” examines the manipulation of the compliant media in advancing – and rarely questioning – an authoritarian national agenda. The fourth section, “The Corporate State of Grace,” reviews the history of the coupling of corporate America and the religious right – and what both parties are getting out of the partnership that superficially appears to share disparate aims. The final section, “The Revenge of Nixon’s Heirs,” traces the careers of those responsible for strengthening the idea of the unitary executive, from the reign of the man who asserted there were no limits on the president in wartime to the current officeholder who has adopted the same attitude – with the alarming advancement of more sophisticated and proven techniques over his predecessor.
For further reference: It Can’t Happen Here by Sinclair Lewis
