« Mercer's Non-Move | Main | Shorter Bush: I Wrote It in Invisble Ink »

June 23, 2007


brilliant, Marcy.

I don't say that enough.

what troubles me the most, over and above not knowing the chronology and who the individual(s) are who are backing away from the unitary executive, article II, and aumf arguments, is that bushco is still BEHAVING as if those arguments are valid and will continue to do so, imho, unless and until they are forcibly stopped and/or removed... they have made it perfectly clear that is their intention even prior to the 2006 elections* and they have given no indication whatsoever that they have changed course... talking about closing gitmo, troop draw-downs in iraq, meeting with iran and syria, and any other so-called "signs" of flexibility are merely tactical distractions to keep us off balance...

* from time magazine last october...

"In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as 'a cataclysmic fight to the death' over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is 'going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation.'"

we really have little choice but to find a way to get those bastards out of power in the most expedient fashion... as long as the white house remains occupied by this cabal, our constitutional republic is in serious danger...


It almost certainly isn't John Yoo, who just came out with a new book laying out all his creepy theories, and it's a little soon to be repudiating it.

I do think they are gearing up for a massive fight, and that, as I've been saying, we need to weaken Bush in every way so that he goes into that fight in the worst shape possible. I'm heartened that with the platform of Congressional hearings, the conventional press has started to take notice, for example today's WaPo article on Cheney.

The Imperial Presidency is so, I hesitate to say it, UnAmerican, and so wrapped up in the notions of Empire that the public is now rejecting, that I don't think they can ultimately win this battle, although I still find the passivity of most of the public disheartening.

So push the subpoenas, impeach Gonzo when he won't enforce the law, as Kagro says, and at the same time shape what Bush can do through the budget and other bills and force him to use his veto on measures the public supports.

And if Congress, especially the House, holds firm on the ethics rules, I'm willing to bet about 20-25 House members decide not to seek reelection because it won't be as lucrative, especiaqlly since they're going to be in the minority, thus opening another 12-25 House seats (plus 6 or so Senate seats), for Dems in 2008 if we are willing to work and pony up for it to happen.

while couched in terms of "practical philosophy",

all these justifications (wartime powers, unitary executive, and similar legal claptrap),

and executive demurrers have but one focus

to legitimize illegal activity and keep the bush mob out of the pokey.

that's all.

these arrogant power freaks know what they have done and they know that some of that is prima facie illegal.

some illegalities may have been done impulsively (electronic spying), but many were certainly done deliberately,

and all have unpleasant legal consequences for the bush gang after the bush presidency is over.

i was just thinking this morning, viz those top military who have been enablers of bush's invasion and occupation plans,

whether or not they could be court-martialed after retirement,

or at least reduced in rank with their pensions reduced, like the young solder who wore his uniform to a protest.

i don't see any barrier to similar legal actions against any and all members of the bush mob who have violated laws,

whether fisa or the presidential records act, or federal budgeting and accounting rules, civil service and hatch act, et al.

unless it's possible to issue a blanket pardon to any and all admin operatives for any and all illegal activity - sort of a presidential medal of dishonor.

if i'm right, and these boys are getting worried about doing time in the slammer,

we should be seeing more and more frantic efforts to protect themselves.

and you can bet that,

prior to january, 2009,

there are going to be lots of documents destroyed

or sent to daddy's library in texas.

You can't invent better satire than this.

Epitaph for the Bush/Cheney Crime Family (and the GOP carcass in general):


...although, I'm not convinced that it can't be proven they've done ANYTHING legal.

Excellent post, Marcy. At least one other candidate to consider for the person Blumenthal refers to as a "key framers of the war paradigm" is Jack Goldsmith. Though Goldsmith's name has generally come up in the context of resisting certain Administration legal theories, he appears to have been THE key architect of the AUMF theory, which is the primary justification the government has used over the last 3 years to defend its detention policies, its tribunal system, and the NSA program. Goldsmith even wrote a treatise-length article for the Harvard Law Review arguing that the AUMF should be interpreted expansively. I suspect that most of the currently operative OLC opinions on these issues were written by Goldsmith personally.

And it wouldn't surprise me if he has since come to regret having authored these opinions. If he were to come out and say publicly that the AUMF theory is bunk, it would be pretty devastating for the White House.

Right now, the democrats, and even the blogosphere, seem to be out of ideas for making something happen. Two thoughts:

1. Repeal the AUMF.

2. Change the Presidential Records Act to require that copies of all presidential papers be delivered to the National Archives before being taken to the Presidential Library.

The first should force the Article II argument into the public discourse. Without the AUMF, they are left with only that to justify themselves. Are we at war? No. So how does the Article II argument even work?

As to the second, it will force their hand. The next president can send someone over to look at the records and publish what needs to be published to discredit the republicans forever. We can name names and destroy the prospects of a generation of young republicans. Or at least we can try.

I am sick of this helpless feeling.

So some of the architects of the Unitary-Executive-Imperial-Presidency school of thought are starting to back away from it just as it appears more and more likely that all those yummy extraordinary powers are likely to fall into the hands of a Democrat in 2008? How conveeeeenient.


The reason I didn't include Goldsmith is because he seems to have renounced those theories earlier than last year and he does not have the same Federalist Society stature. From what Sidney says, I'm thinking it's someone who is still considered a bad guy. Goldsmith, bc of his connection with the hospital fight, wouldn't fit, I think.

I also think it is Dinh b/c I read a quote of his recently on the current state of DOJ (can't find the story) that was something like "I'd rather stab my eyeballs out with a knife tham be working at the DOJ right now." Not the exact quote, but I remember being very surprised when I read it.


Ah, was that Dinh? I'll have to look for it again. I remember the quote but didn't realize it was Dinh.

dinh's quote was (approx):

"i'd rather change places with jose padilla than work in the doj right now."

When Cheney (and Bush) insiders start blabbling to Sidney, you know the walls are starting to crumble. I think they'll start speaking out on the record. Not much Dems can do but shine the light in.

Cheney is a very scary guy. Is it tinfoil to suspect he's holding some personal dirt on Bush?

I would add to masaccio's suggestions that the House start impeachment proceedings. I'm led to believe (and may very likely be incorrect) that there are no executive privileges in an impeachment proceeding. There's no reason for the House to conclude the proceedings and send it to the Senate for conviction since that aint gonna happen but they could uncover all the illegality and questionable partisan decision making with an unfettered investigation and put the neo-con mafia on defense.

Thanks for finding the quote orionATL.

As to Philbin, why can't he be subpeoned by Leahy to fill in Comey's testimony about the wiretapping program and Cheney's involvement in him not getting a promotion?

According to Scott Horton, the admin. officials' remarks were made at an off-the-record counterterrorism conference in Europe.

We, the people, and our "representatives" in Congress, are already acting the part of subjects of a king, whether we acknowledge it to ourselves or not, and in absolute defiance of the intent of our Founders as expressed in our Constitution. What's more, this has been going on for decades to one degree or another - not just since Bush/Cheney took office - but especially in the post-WWII era during the age of television and Hollywood's mass-marketed myths about the "ever-good American" vs. the "evil-incarnate Nazi."

To understand this, simply envision the claims of power and privilege that would have been asserted if the shoe had been on the other foot: in other words, if Bush/Cheney had the enumerated inherent Article I powers of the Legislative Branch under our Constitution to assert as inviolable and untouchable by the Executive Branch, instead of simply the powers enumerated for the President under Article II...

When you understand how comparatively and obviously weak the inherent powers of the Executive Branch under our Constitution are as compared to the inherent (dormant, unexercised but absolutely vital) Constitutional powers of the Legislative Branch, the state of affairs is clear. Give Bush/Cheney credit: at least they exercise the full extent of the authority and power the Constitution gives the Executive Branch (while endlessly reaching for more without effective resistance from either the media or the Legislative Branch). The Legislative Branch can make no such claim, to their everlasting discredit, demonstrating their extreme ignorance of, contempt for, and thorough dishonoring of the wise Constitutional legacy of America's Founders.

Article I, Section 8, Clause 11: the sole, plenary, exclusive power to declare (and thus end) war, vested in the Legislative Branch alone. What wouldn't the Executive Branch attempt to do with such "inherent" power?

Yet, unbelievably (to the Founders at least), the United States Congress has effectively ceded that all-important war power to the Executive Branch, in absolute contravention of the Constitution, and with scarcely a murmur from the populace or the "free press." Why? Because the Executive Branch, with the ability to command and access a standing army, simply decided to take it, in all but words (starting in the modern era with Harry Truman and his Korean "police action"). The Legislative Branch has never seriously fought back to reclaim its war powers since. The closest it came was with 1973's War Powers Resolution legislation, after Nixon and Vietnam pushed the envelope too far. But that effort has probably only made things worse by assuming, as usual (unlike the wise Founders, who knew better than to so assume, from bitter personal experience), that a good faith actor would be holding the presidency, which all too often has failed to be the case.

The 2001 AUMF and the 2002 IWR were both based on the 1973 War Powers legislation, and thus were in the form of legislation and did not explicitly invoke the inherent Constitutional War Powers of Congress. As a result, to repeal or revise either the AUMF or the IWR, it will take a legislative act (and thus a Presidential signature or veto override) to succeed. However, that does not mean that a separate vote to end the war cannot take place, outside of that Congressionally-created and imposed box of the 1973 War Powers Resolution legislation (which itself is founded on the inherent Constitutional War Powers of Congress). That is what always goes unsaid by Members of Congress...

In short, it would take only a simple majority vote in both houses of Congress to declare an end to hostilities in Iraq, if Congress were to (finally!) invoke its inherent, plenary Clause 11 powers under Article I of the Constitution. No signature from the President to obtain, and thus no veto override required, anymore than Congress has a right to okay decisions the Commander in Chief makes before he executes the mission of the Armed Forces in battle, under Article II. [And if smartly handled (Carl Levin, Chair of the Armed Services Committee), such a Clause 11 vote could probably endrun a filibuster in the Senate by being attached to the annual defense appropriations bill which cannot be filibustered.] Arguments fearing such a course, because Bush would try to defy that Clause 11 vote and throw the question to the Supreme Court, are the sort of arguments that prevented filibusters of Alito and others because of the so-called "nuclear option" in the Senate. We either have a Constitution or we don't. We either conduct our federal government in accordance with the Constitution in deeds as well as words, or we don't. We need to know whether our modern behavior as subjects of a kingly president is in fact now the law of the land, or still an unConstitutional dereliction of duty by the Legislative Branch and an abuse of power and overreach by a would-be-tyrant in the Oval Office.

Governor Richardson picked up on this. No one else seems willing or able to mention it (and even Richardson seems to be hardly promoting it). Now that I see it so clearly, it appalls me all the more how everyone in Congress, including Democrats depite all their empty words of protest, defers to the Executive. It may well be only human nature to worship a "leader" in this way - but it is the same human nature that our Founders recognized as a threat to liberty, and carefully engineered our Constitution to compensate for and overcome. [See: their oaths of public office, in which Members of Congress swear to uphold and defend the Constitution. Is that now "optional," under the law and corporate culture of America today?]

But the worst of it is these decades-long experienced Congressional incumbents who helped get us to this pass, and now compound their failure to uphold the Constitution by actively trying to deceive and misinform the American people about the inherent powers of their own branch of government. Case in point: Michigan's Senator Carl Levin, and his despicable attempt (in Thursday's WPost op-ed) to befuddle the public about the options Congress has available to it to end our violent occupation of Iraq (in which Americans are a "security blanket" for Iraqis about as much as Bush and Cheney are for the American people). Levin's piece, besides the obvious AIPAC-underwritten motive, makes me increasingly sure that the 'collective wisdom' inside the Democratic caucus is that no mostly-Democratic Congressional vote shall lead the way out of Iraq.

The Democrats are evidently desperate to hide behind Republican cover on this to avoid "blame" for ending the humanitarian crisis in Iraq. It's impossible to reason with such absolutely incoherent, brainwashed, trembling subservience to the status quo. It does explain, however, exactly how our Constitution has somehow been rewritten in invisible ink to give the Executive Branch all war powers it's willing to take from a corporate-beholden, fundamentally and absolutely corrupt Congress, for which Carl Levin has apparently chosen to be the poster child of our endless imperial adventure in Iraq.

United States Constitution, Article I, Section 8, Clause 11: Congress, INVOKE IT.

Yoo is a True Believer/Useful Idiot. I very sincerely doubt that he's a source for Blumenthal. I have the same view of Addington.

Dinh is not a bad bet as a source. I attended the event aptly described here, which we all expected to be some sort or rumble or, perhaps, smackdown, but ended in a whimper when Dinh refused to contradict anything that Cole said.

It was a real turning point in my thinking-- from, "well, both sides might have some merit, and we are at war, after all!" to, "my God, this administration might be acting completely indefensibly, with utter disregard for the law."

Now, Dinh is no longer at the commanding heights of the presidency. So he's not the big source.

And Kmeic, very recently, has been flacking his neo-postmodern view that all views are equally valid, and that accurate legal interpretation is merely a tale agreed upon. He's still pulling the "loyal soldier" act that Colin Powell pulled in front of the UN in 2003. God only knows what he thinks he's defending by his obfuscations, but it seems like he's too embedded in the cabal to help out the reality-based community.

OK, and after that, I got nothin'.

I think it's safe to say that the 'awakening' Sidney Blumenthal is chronicling behind the scenes by some members of the Bush administration in the first paragraph of his column is primarily due to one thing and one thing only: the Constitution, its separation of powers, and the fact that the Judicial Branch, unlike the Legislative and Executive Branches, is still primarily upholding its sworn allegiance to that Constitution. Which has resulted in the checks on overreaching Executive Branch power that the Judicial Branch is slowly but surely creating, with regard to Guantanamo Bay, the MCA, NSA spying, and other matters that have reached it for a ruling.

This is another reason I actually have more confidence in the ultimate decision of the Judicial Branch in a struggle about Constitutional war powers between the Legislative and Executive Branches, than I do in either of the other two branches at this point in time (thanks in large part to the oppressive, enforced 'two-and-ONLY-two party' political faction system). Where would we be today, without even the handful of key Judicial Branch rulings about Guantanamo Bay, the MCA, Padilla, the Fourth Amendment, etc.? We should not take those vital Judicial Branch checks for granted - they have become far too rare in our system to be treated lightly; I for one am very grateful for them.

All it takes to seriously begin to right the ship of state is for the Legislative Branch to learn a lesson or two from the recent rulings of the Judicial Branch, and likewise uphold its duty to the Constitution, by invoking its own profound Article I, inherent, Clause 11 plenary powers, invoking and exercising its own profound Article I, inherent, plenary powers to impeach, or both. Congress can use the powerful words of the 4th Circuit Appeals Court decision Blumenthal cites to back it up:

The Court has specifically cautioned against "break[ing] faith with this Nation's tradition" -- "firmly embodied in the Constitution" -- "of keeping military power subservient to civilian authority." Reid, 354 U.S. at 40. When the Court wrote these words in 1957, it explained that "[t]he country ha[d] remained true to that faith for almost one hundred seventy years." Id. Another half century has passed but the necessity of "remain[ing] true to that faith" remains as important today as it was at our founding.


...it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws "to go unexecuted, and the government itself to go to pieces." We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

As Blumenthal summarizes the Court's June 11th decision:

...the government's assertion that the president has "inherent constitutional authority," rooted in his "war-making powers," is a "breathtaking claim" contrary to U.S. constitutional law and history.

Why can't and why won't our Legislative Branch, controlled by Democrats, join the Judicial Branch and "refuse to recognize a claim of power [by the Executive Branch to endlessly continue the conflict in Iraq on its own say-so] that would so alter the constitutional foundations of our Republic" and invoke its Clause 11 powers to end the American occupation of Iraq?

Speaking of the Judicial Branch, major kudos to Judge Walton's fellow jurist, Judge Royce Lamberth (former chief FISA judge) for speaking out today, regarding the NSA spying and FISA:

"I haven't seen a proposal for a better way than presenting an application to the FISA court and having an independent judge decide if it's really the kind of thing that we ought to be doing, recognizing that how we view civil liberties is different in time of war," he said.

"I have seen a proposal for a worse way and that's what the president did with the NSA program."


Some most interesting news: The Washington Post has kicked off a four-part series on Cheney and his "methods and impact." Part one, by Barton Gellman and Jo Becker, is on Sunday's front page. Here's a pertinent-to-this-thread bit:

In expanding presidential power, Cheney's foremost agent was David S. Addington, his formidable general counsel and legal adviser of many years. On the morning of Sept. 11, Addington was evacuated from the Eisenhower Executive Office Building next to the White House and began to make his way toward his Virginia home on foot. As he neared the Arlington Memorial Bridge, someone in the White House reached him with a message: Turn around. The vice president needs you.

Down in the bunker, according to a colleague with firsthand knowledge, Cheney and Addington began contemplating the founding question of the legal revolution to come: What extraordinary powers will the president need for his response?

Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan, the deputy White House counsel, linked by secure video from the Situation Room. Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command center. White House counsel Alberto R. Gonzales joined later.

Thus formed the core legal team that Cheney oversaw, directly and indirectly, after the terrorist attacks.


am I imagining this? wasn't Dinh one of the Bork Amici???


Yes, he is among the Amici Illuminati. Remember, we're looking for a hardcore wingnut, who has begun to see the borders of the law.

And as I said, Dinh also wrote a brief of some kind in favor of the AIPAC spy defendants.

The comments to this entry are closed.

Where We Met

Blog powered by Typepad