By Meteor Blades
For the past three months, Glenn Greenwald has been putting together one of the best First Amendment-oriented legal blogs in wwwLand. He has just generated an exceptional collection of 10 questions that the Senate Judiciary Committee should ask Alberto Gonzales when the Attorney General is the (only) witness at the hearings on "Wartime Executive Power and the NSA's Surveillance Authority."
I can't praise Glenn enough for his work on these. If the Democrats on the committee only asked these questions, and didn't let Gonzales get too slippery with his replies, it would be better than the entire set of sessions on Samuel Alito. And that's not hyperbole.
A sample to whet your appetite:
In a September 25, 2001, Memorandum Opinion addressed to the Deputy Counsel to the President, John C. Yoo, then-Deputy Assistant Attorney General in the Office of Legal Counsel, wrote (emphasis added):In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
(a) Does this paragraph reflect, or did it ever reflect, the position of the Bush Administration with regard to the President’s powers to respond to "any terrorist threat."
(b) If not, in what way does the Administration’s positions on this issue differ from that paragraph?
(c) What powers does Congress possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?
(d) What powers does the judiciary possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?
(e) Are there any limits at all on the President’s power to order actions as a response to threats of terrorism and, if so, what are those limits?
(f) In his Memorandum, Mr. Yoo wrote, quoting the Supreme Court opinion in Youngstown: "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Does the Administration believe that, as Mr. Yoo suggested, that the threat of terrorism means that we must choose between preserving the Nation or preserving the Constitution?
And one more:
Various members of Congress, including then-Majority Leader Tom Daschle, have stated that the Administration specifically requested that Congress insert a provision into the AUMF [Authorization for Use of Military Force- Sept. 18, 2001] authorizing the Administration to use war powers within the United States, but Congress refused to include such a phrase, and the AUMF does not include such an authorization.
(a) Is that an accurate rendition of events – that the Administration requested, but Congress refused, the inclusion in the AUMF of a clause authorizing the Administration to use its war powers within the U.S.?
(b) What is the legal meaning or significance of that refusal by Congress, if any? Would it have made a difference one way or the other if Congress had agreed to include that provision rather than refused to include it?
(c) Despite that refusal, is it the Administration’s position that it has the authority to exercise its war powers within the U.S.?
Eight more just like those and Gonzales's head may resemble that scene in Scanners when Darryl Revok does his thing.