John Dean: Vice President Cheney and The Fight Over "Inherent" Presidential Powers
Vice President Dick Cheney has stirred up an old fight in Washington. He sent a rookie, however, to make his case publicly. It did not work.
Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon's Justice Department invoked the views of King George III.
King George III's take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government's lawyers that warrantless searches were among the very reasons the colonies fought for their independence.
As for the reaction to the Gonzales testimony, a New York Times editorial described it as "a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling." The Times also noted committee chairman Arlen Specter's analysis of the Attorney General's legal position: It "just defies logic."
The Illogic Of the Bush Administration's Position on Congress' Law and Views
Chairman Specter is correct. Gonzales' position is that the President can make his own rules, notwithstanding the existence of a federal statute - the Foreign Intelligence Surveillance Act (FISA) - that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies "the equilibrium of our constitutional system" to use Chairman Specter's words - treating Congress' clear word on the matter, as if had never been spoken at all.
Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law....
Since the time the Constitution was adopted, there has been an unresolved (if not irresolvable) debate over the allocation of foreign policy powers between Congress and the president. There are highly respected authorities on both sides of the question. No wonder, for as Harvard professor and presidential powers scholar Edwin S. Corwin explained, the Constitution itself "is an invitation to struggle for the privilege of directing American foreign policy."
Corwin added, however, the "verdict of history … is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the President." (Emphasis in original.) If there is a more accurate assessment of these powers, I have never found it.
Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces -- the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches."
Madison believed the meaning of this great charter would "be liquidated and ascertained by a series of particular discussions and adjudications." But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs - each suitable for citation by one side in the ongoing debate.
Cheney, and those who subscribe to his point of view, find solace in the Court's 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling - which recognized President Franklin Roosevelt's preeminence in foreign policy....
Read entire article at findlaw.com
Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon's Justice Department invoked the views of King George III.
King George III's take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government's lawyers that warrantless searches were among the very reasons the colonies fought for their independence.
As for the reaction to the Gonzales testimony, a New York Times editorial described it as "a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling." The Times also noted committee chairman Arlen Specter's analysis of the Attorney General's legal position: It "just defies logic."
The Illogic Of the Bush Administration's Position on Congress' Law and Views
Chairman Specter is correct. Gonzales' position is that the President can make his own rules, notwithstanding the existence of a federal statute - the Foreign Intelligence Surveillance Act (FISA) - that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies "the equilibrium of our constitutional system" to use Chairman Specter's words - treating Congress' clear word on the matter, as if had never been spoken at all.
Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law....
Since the time the Constitution was adopted, there has been an unresolved (if not irresolvable) debate over the allocation of foreign policy powers between Congress and the president. There are highly respected authorities on both sides of the question. No wonder, for as Harvard professor and presidential powers scholar Edwin S. Corwin explained, the Constitution itself "is an invitation to struggle for the privilege of directing American foreign policy."
Corwin added, however, the "verdict of history … is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the President." (Emphasis in original.) If there is a more accurate assessment of these powers, I have never found it.
Article II of the Constitution, which sets forth presidential powers, is so vague that not even the Framers of the Constitution themselves agreed about its meaning. James Madison made the point in Federalist No. 37, stating "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces -- the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches."
Madison believed the meaning of this great charter would "be liquidated and ascertained by a series of particular discussions and adjudications." But it has not worked out that way. For example, the U.S. Supreme Court has two rival holdings regarding the conduct of foreign affairs - each suitable for citation by one side in the ongoing debate.
Cheney, and those who subscribe to his point of view, find solace in the Court's 1936 decision in U.S. v. Curtiss-Wright Export Corporation. Ironically, conservatives once loathed this ruling - which recognized President Franklin Roosevelt's preeminence in foreign policy....