They Can’t Legislate $hit
Marty Lederman notes that Cheney’s latest dodge includes a reference to the ruling that limits Congress’ oversight over the Executive strictly to those areas where it pertains to legislation. From that, he argues that Cheney’s response was premised on the belief that FISA itself is an illegal restriction on the Executive.
Finally, the letter lists numerous reasons whythe VP’s office might not release the requested documents. The secondof those reasons is this:
The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.
Now,I happen to think that this so-called "limitation" on congressionalinquiries is not nearly so clear: Many of the earliest legislativeinvestigations were not for the purpose of designing statutoryamendments, but were instead "only" to investigate wrongdoing ormalfeasance in the Executive branch; and the better view is probablythat Congress has at least some such broad investigative power,unrelated to its lawmaking functions. (The Court has even indicatedthat Congress has an important interest in Executive branchtransparency simply in order to facilitate "the American people’sability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)
Buteven if it were the case that Congress can only investigate in areaswhere it can legislate, . . . so what? Such an objection would only bemeaningful in the context of this subpoena if there were some question about Congress’s power to legislate with respect to the relevant Executive branch conduct.Â
Sothink about what the VP’s letter is suggesting — that perhaps Congresscan’t legislate on the topic of the government’s domestic electronicsurveillance!
This is, I think, a fairly audacious assertion tobe making at this late date. After all, just a few days ago thePresident himself insisted that Congress legislate forthwith on thisvery subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.
Whatthe letter is getting at here, of course, is the Vice President’slongstanding view that FISA is unconstitutional, and that Congresssimply can’t regulate the Commander in Chief’s collection ofintelligence. In other words, Who Needs the Protect America Act?:Nothing would or could stop us from warrantless surveillance, anyway.
Lederman may be correct in this particular instance. But his conclusion does not necessarily follow from the available evidence. As I have repeatedly shown, the Administration has made precisely the same argument when Congress subpoenaed testimony relating to the USA purge. And as with the warrantless wiretapping program, the claim that Congress had no legislative interest in the matter at hand came after the Administration had very happily accepted the legislation Congress had passed on precisely that matter (in the case of USA Purge, the legislation was the provision of the PATRIOT Act that gave the Attorney General the power to appoint interim USAs).
But unlike the FISA case Lederman examines, there can be no dispute–not even from the Unitary nuts–that Congress has the authority to legislate on interim USAs. The authority is inscribed in the Constitution. Nevertheless, the Administration wanted to contest Congress’ legislative interest in it anyway.
So while Lederman may be right, I don’t think he is. I think the Administration is making a grander argument, one that makes an expansive claim that Congress cannot legislate away any authority enjoyed by the Executive, even one limited by the Constitution.
â€I think the Administration is making a grander argument, one that makes an expansive claim that Congress cannot legislate away any authority enjoyed by the Executive, even one limited by the Constitution.â€
That doesn’t mean SCOTUS would not strike down FISA. I don’t believe they would agree with the WH on expanded power for the Exec., but they might slouch to them on FISA. Is that Leahy’s fear, IYHO?
EW,
FWIW (exactly nothing, I stress) I certainly hope your take is the correct one. But I do think this is what Leahy was responding to in the press conference yesterday by referring to their upcoming continued work on FISA. Or should I say working over FISA…
Well, I agree that FISA is arguably unconstitutional, but not for the same reason as Big Time. This bit about them being a power base above and beyond all others, all on their own is complete BS.
It is interesting Addington’s crew is writing this response (Shannen W. Coffin Counsel to the VP) instead of Fielding.
It’s still entirely possible that in the first few hours after 911, Bush and Cheney cracked open a ’War Contingency Plan’ which has been the template for most of the Administration’s actions since.
It could have been a checklisted ’build-up/count-down’ Plan to marshall the strength of the Country for War against a Grave Threat representing a Clear and Present Danger. And that Plan may have contemplated an ’enemy’ secreted amongst our general population, for which the Country ’needed’ a surveillance in order to discriminate ’friend’ from ’foe.’
A good guess, since we are dealing with BushCo here, is that whatever the Most Extreme Measures Scenario was – that’s what Bush has ’enabled’ in order to Justify his Most Extreme Control Response – Totalitarian Control as the Untouchable/Indisputable Unitary Executive.
It’s hard to even imagine Bush and Cheney NOT playing with all the toys in the chest once it’s open, even if they had to generate legislation like the AUMF to bootstrap the phases leading up to Martial Law through Wars in Afghanistan, Iraq, Iran, etc.
Invoke a â€Doomsday Plan†and call the circle of ’people in the know’ members of the Kingdom – who take a Loyalty Vow to never tell the unintiated, and in return are promised they will never suffer from the Rule of Law if they remain Loyal.
And so what is the purpose of amassing all this unreviewable power in the C in C? Why argue that Congress basically can’t legislate anything relating to the powers of the Exec? Just to give it all to Hillary Clinton in January, 2009?
If we had Congresscritters with balls, one would hope they would just hold up the appropriations bills and tell the Pres to appropriate his own damn money if that’s how he feels. Where does he get the power to appropriate funds, lay and collect taxes and coin money?
Despite the reference to case law, I’m not convinced that Cheney’s people have any argument at all. I think a re-reading of Harry Frankfurt is probably the best reference; their whole response to investigations, from â€executive privilege means Executive Branch personnel never have to show up to testify†to this latest round is pure BS. They’re throwing out layer after layer of crap the same way the wingnuts throw out â€arguments†disputing details of the evidence against them that don’t actually weaken their opponents’ case — to try to send investigators down one rathole after another.
One bit of credit I will give to Leahy (even though his planning for yesterday sucked) is that he’s smart enough not to take the bait; he just keeps telling them â€you haven’t responded to our lawful request; you have to respond.â€
Very interesting that OVP is calling their own shots on this. Has anyone ever heard if the OVP crowd agrees with or controls Fielding?
The Bush administration has always relied on the courts to cut the President’s powers, otherwise it’s used.
I don’t know whether, at bottom, they really care whether they have a case or not. I think they’re just throwing the furniture in our path as they try to run away.
And like good, patient incrementalists, we’ll busy ourselves with methodically straightening up that furniture, hoping the â€administration†will show itself out and we can tidy up a bit. Because once things are tidy, well, no one would ever dare muss things up again. America loves tidiness! Even Hillary!
Why do we continue to have these showdowns?
As I view the conflict, Neocon organized criminals have used (and apparently continue to use) some less-than-impressive counsel (like John Woo and AGAG-AG=former white house counsel Alberto Gonzales) to find the weak mortar in the wall of justice, and try to bring it down or hide behind it.
Their arguments are not strong ones (IANAL), it appears. They appear absurd, opportunistic, wrong; like someone with some background in this can easily pop up and point out the rot in the briefs.
So why aren’t Dems or neoLibs doing the same with the constitution and demanding accountability, transparency, and jail time based on laws that demand legal behavior? Aside from the fact that there appear to be no neoLibs in power at this time willing to use it, why aren’t people showing these spurious arguments up for the quackery that they are?
I’m probably over-simplifying too much, missing too many gnarly points.
Seems to me that taking OVP’s argument, that investigation only being legitimate when impinging upon legislation, to the extreme, that would also preclude Congress from investigating for the purposes of fulfilling the requirements of a resolution of inquiry into impeachment. ???
It’s possible they’re simply scared of the future, the unknown, the uncontrolled and they’d rather have someone from the past like Hillary, who is in some way complicit in their 9/11 failure, to be next as Prez. Going off in some other direction means not knowing whether they’re going to be smashed to bits by a 9/11 investigation which focuses just on their failures. They need a madd policy choice: Hillary, because she wouldn’t dare bash Rs when the Ds were clearly guilty of not stopping Al Qaeda either (in their theory).
The facts may be a little different, but you can imagine them grasping at this straw to avoid problems. Just how far they’re willing to go to enforce HRC on us isn’t clear.
look: nothing counts as a victory until all the loyal Bushies are doing jail time. It’s not a â€showdown†until there is skin in the game on both sides. Otherwise, Theom: and Kagro are right- they’ll just keep creating their own reality, and the legal system tries to react, they’ll move on and throw more furniture in our way.
I feel like I made a post similar to this one three months ago, and six months ago, and maybe even nine or ten months ago… and we’re effectively in the same damn place. Instead of furniture, think of fighter planes: if the Executive and Congress are fighter planes in a dogfight, Cheney and Chimpy keep cutting guys loose like magnesium flares, hoping that the heat-seekers in Congress will go after the decoys and focus on the story of the minute instead of the core of the problem. Waxman and Leahy and Conyers and Whitehouse need to fight the urge to chase the decoys, and go after the main engines. Otherwise they’ll never bring it down. And just to be clear, I won’t be satisfied with anything less than the total evisceration of the Bush adminsitration. I’m talking about 50 or 60 felony convictions with 10+ years and a couple of hangings for good measure.
Pat Leahy needs to start throwing some of these assholes in jail, like yesterday, to show that he means business. Start with Gonzales. He’s clearly perjured himself openly before both houses of Congress, multiple times, just since February of THIS YEAR for christsakes. It’s goddamn on tape, on youtube, for the whole world to see. The time for talk is over- just do it. What are they afraid of- the army is going to show up and stop it? Not likely- Bush has made sure that the army is stretched too thin abroad to do a goddamn thing here at home.
Due process be damned. Just lock someone up. If not Gonzales, then Goodling, Sampson, George Fucking Tenet, Addington, Hadley, Leeden, Foggo, Doan, Rove, Tony Snow for christsakes- anyone. Do it now. Because otherwise, one imaginary â€showdown†after another, it’s all just talk, and in six months all the guilty parties will just walk off into the sunset of election news coverage.
Damn right tekel — thanks for that!