MUST READ! NYT EDIT:Who Can Check the President?

[kpete]

January 8, 2006
Our Presidential Era: Who Can Check the President?
By NOAH FELDMAN


So how can Congress redeem itself? It could start by clarifying that, in authorizing the president to use force after Sept. 11, it did not mean to give him a blank check to violate existing laws without even telling Congress about the violations. Then it could pass new laws that leave no doubt that it intends to bind the president and his staff on matters relating, for example, to the conduct of war. Senator John McCain's torture bill, for instance, seeks to do just that. In the face of repeated presidential assertions that inhumane treatment does not count as torture and that the president cannot be constrained when it comes to interrogation, the law expressly prohibits cruel interrogation techniques.

Take the time to read the whole thing:

http://www.nytimes.com/2006/01/08/magazine/08court.html?pagewanted=print

[rodeodance]

1. unless the people are outraged-- this congress will as little as possible.

[rodeodance]

3. Roberts the Chair of Intel comm. agrees with the WH regarding eves-

dropping. He is stall and do little.

[fooj]

2. That's an excellent article. Thank you for the post.

Peace.

[Hissyspit]

4. Feldman's the guy who wrote "Divided by God: Our Church/State Problem..."

"and What We Can Do About It."

Nominated.

[rodeodance]

5. very sombering.

The administration of George W. Bush, emboldened by the Sept. 11 attacks and the backing of a Republican Congress, has sought to further extend presidential power over national security. Most of the expansion has taken place in secret, making Congressional or judicial supervision particularly difficult. Administration lawyers have gone so far as to claim that the president as commander in chief is not bound by laws that ban torture because he is empowered by the Constitution to fight the nation's wars however he sees fit. A memo from the Department of Justice to the White House counsel dated Aug. 1, 2002, argued that any attempt to apply Congress's anti-torture law "in a manner that interferes with the president's direction of such core war matters as detention and interrogation of enemy combatants thus would be unconstitutional."

The administration has also suggested, in other memos, that the president may violate international treaties if necessary to fight the war on terror. By these lights, the United Nations Convention Against Torture, the leading anti-torture treaty, could constitutionally be violated even though the United States signed and ratified it, and even though the Constitution declares treaties to be "the supreme law of the land." Meanwhile, the administration takes the view that the anti-torture treaty does not apply to its actions outside the United States as a matter of law, but only, as Secretary of State Condoleezza Rice recently stated on a trip to Europe, "as a matter of U.S. policy." When added to the newly declared presidential right to arrest American citizens wherever they might be and detain them without trial as enemy combatants, these claims add up to what is easily the most aggressive formulation of presidential power in our history.

For the last four years, a Republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president's assumption of new powers. In recent months, though, Bush's relative unpopularity, as reflected in opinion polls, has emboldened Congress to take some steps toward reasserting its oversight role. In addition to the new anti-torture legislation, there is talk of requiring regular reports on secret detentions; and last month Congress nearly allowed the U.S.A. Patriot Act to lapse, granting only a five-week extension instead of the full renewal sought by the administration. Still, political logic dictates that, as long as Republicans control Congress, its oversight will be cautiously managed so as not to harm the party or the party's next presidential candidate. And even accounting for a legislative backlash, history suggests that the presidency ultimately emerges stronger after a president makes new claims of his constitutional authority.

So what, if anything, should be done? If presidential power has been taken too far, who, if anyone, can impose limits on it?

II. WHAT THE COURT HAS DONE - AND MAY DO

[USA_1]

6. GREAT article.

Thanx.

[Oversea Visitor]

7. As usual bush expect someone to bail him out

GOP doing that but who is going to bail GOP out. :rofl:

Bush checkmate GOP to force them to bail him out
Of course he stop NYT from publishing anything before his own election.
Now he is safe he need free pass so show off his blown job
Get bail out
Home free :rofl:

But who is going to bail out the GOP?
If they impeach little chimp it be bad for them
If they dont impeach little chimp it also be bad for them

Gee GOP suckers you in a lose lose suituation.

[springhill]

8. Where is the real outrage?

I mean, even in this editorial he states that if Bush is going to break the law he at least needs to tell Congress about it. What? If he breaks the law, he needs to be IMPEACHED.....PERIOD........END OF STORY! I don't know how many times I have read how we need to make sure this is stopped, or he needs to confer with Congress about it. No, he broke the law and he should be arrested, or whatever it is they do with presidents who don't uphold the constitution and the laws of the land.

[eppur_se_muova]

9. How can the Republican Party redeem itself? They'd better start planning…

NOW.

They've already moved to replace the House party leadership. Now if they replace the RNC leadership, that would set them up to CENSURE ** for pursuing policies that will mean the ruin of the party. They don't even have to be sincere about it...but if the R's don't reject the Boy King they are going to find the putrefying corpse of this maladministration hanging from their necks for decades to come.

Can they afford NOT to eject ** from the Party?

[bunny planet]

19. seems Rs are hanging all their hopes on crooked, proprietary voting

software and voter disenfranchisement offering them another stolen election. I think that can't work in a landslide against them which is what will occur if their corruption continues to be exposed every day until November.

They better throw the blivet from the train soon.

[dweller]

10. yes, required reading! Print and pass to others.

Consider what happens when Congress actually tries to engage in oversight - for instance, demanding that the president turn over documents concerning prewar intelligence about weapons of mass destruction in Iraq. The president refuses, citing "executive privilege" - a term, by the way, absent in the text of the Constitution. What can Congress do when the president ignores its dictates? One option would be to stop cooperating with the presidential agenda on other issues. Another would be to suspend financing for some relevant program.
Holding hearings would be a way to possibly broaden public awareness (though hearings are difficult to carry off without relevant documentation). The ultimate sanction, of course, would be to initiate impeachment proceedings. All of these approaches have costs, though. They would require coordinated action by the Congress and would draw public scrutiny to the issue. By going to the court and asking it to enforce a subpoena - or better, waiting for public-interest groups to do so, as with Vice President Dick Cheney's energy advisory commission - Congress avoids most of these costs.

Once the Supreme Court hears a case involving the balance of powers, the situation actually becomes worse for Congress. The court may find for the president. And even if the court does find that Congress's powers trump those of the president, and the president complies with its ruling, the logical implication is that the president is listening to the court when he was not willing to listen to Congress. This concern was evident in Scalia's dissent in the Hamdi case, in which he asserted that an American citizen in his home country is always entitled to a judicial hearing justifying detention - unless Congress suspends the writ of habeas corpus. To Scalia, the case was about Congress and the president: the former had not authorized the latter to detain citizens without a hearing. Yet far from functioning as a vote of confidence in Congress, Scalia's dissent made Congress look like the patsies that they had been throughout the Guantánamo detentions. Scalia was clearly angry at the president for violating a basic constitutional principle, to be sure. But his anger also reflected his frustration with Congress's reluctance to stand up for its rights.

cuts to the quick.
dp

[ThomWV]

11. Nom and Kick nt

[dobegrrrl]

12. My students will have to read this

I have been stressing over and over about the balance of power - I teach gov't and am not as balanced as I should be - but I just cannot see any justification for the Repugugs. How can they be defended? This is a good article because it is scholarly, without emotion.
Thanks for posting.
Beth

[Free the Press]

13. um, Professor Noah Feldman has put together a brilliant analysis, AGAIN!

While most of us have been focused on this or that detail, Professor Noah Feldman has put the big picture upon the big screen for all to see. Let his efforts not be in vain! He is one who knows!

[ConcernedCanuk]

14. Wake up USA! - y'all ain't got no democracy down there

.
.
.

Voting is just a motion y'all go thru to THINK ya got a democracy,

if the PNACers can't buy the votes, they steal them . .

and/or brainwash the citizens with this "fear" thing . .

and if ever a president ever gets in that really tries to help the country, they assasinate him or smear him with a sex scandal

Imagine what the USA could be if'n they just legalized pot, - everybody would mellow out, the WarMachine would grind to a halt, and those billions of dollars spent to maim and kill could be used to feed the hungry, house the homeless, and tend to the medical needs of it's citizens . . .

silly idea I know

But I's just a Canuk . .

whadda I know?

[upi402]

15. you're right. Republicans hate our freedom!

and our kids

[buddysmellgood]

16. Holy moly that is a long piece. Great stuff

[rman]

17. The fundamental problem with concentration of power

is that it is outside of the control of the ruled if and when that power is abused.

[enough]

18. Important reading as we head into the next few weeks of hearings.

Feldman rightly says: "The lesson for the balance of powers is a deep one: the prize of power goes to the bold."


Will we be able to goad and inspire Congress to some boldness? It's hard to be optimistic about that, given what we have seen in the past five years. They really do not seem to WANT to exercise their rightful powers and duties.

[greiner3]

20. Damn, where to begin;

What struck me most of all was Noah's continuous thread of b*** having so much power. How many remember their philosophy 101 class? David Hume held that man is barely above the beasts. In order to live a civilized life, every man had to give up all rights and freedoms. These would be given to a ruler known as the Leviathan who controlled the state AND WAS ABOVE ALL LAWS. The problem with that analogy and present day is that the people voluntarily gave up their rights whereas ours were taken from us! Bushco can and will be stopped. Totalitarianism is next unless we do something.

[applegrove]

21. Yes - Thanks for posting. n/t