Editore"s Note
Tilting at Windmills

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January 19, 2007
By: Kevin Drum

EAVESDROPPING....In the New York Times today, Adam Liptak makes a point about the NSA's domestic spying program that I meant to make myself yesterday: namely that negotiating a voluntary end to the program conveniently allows the White House to avoid settling the main issue the program raises:

The details remained sketchy yesterday, but critics of the administration said they suspected that one goal of the new arrangements was to derail lawsuits challenging the program in conventional federal courts.

"It's another clear example," said Ann Beeson, associate legal director of the American Civil Liberties Union, "of the government playing a shell game to avoid accountability and judicial scrutiny."

....The announcement about the surveillance program came two weeks before a federal appeals court in Cincinnati was to hear the first appellate argument about the lawfulness of the program. Government lawyers now say that case is moot, but their claim is open to question.

It's nice that this specific program has been brought under the oversight of the FISA court, but what's more important is the broader question of whether the president has the authority to eavesdrop on American citizens without a warrant. He still claims that he does, and that's a claim that deserved to be litigated in the Supreme Court. It still does.

Kevin Drum 1:55 AM Permalink | Trackbacks | Comments (58)

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Listening to NPR this afternoon, I thought I heard said that the senate judiciary committee had already caught onto this catch that the Administration could presumably return to their prior policy at whim.

Also both Leahy and Specter wanted to see the actual wording and Gonzalez was dodging surrendering the actual agreement filed with the FISA court. The court had said that they could not yield it without the agreement of the AG; the AG was saying he couldn't...because, well, I'm not sure.

In fact I think I'll surf for the audio. Leahy got so steamed he actually knocked Gonzalez off his smooth, I-don't-care-who-you-are attitude. I think Gonzalez finally woke up to the fact that HIS ass could be on the line.

I hope the Dems continue to work with responsible Repubs to return sanity, democracy and the Constitution to the people.

Posted by: notthere on January 19, 2007 at 2:39 AM | PERMALINK

"[T]he broader question of whether the president has the authority to eavesdrop on American citizens without a warrant" is also why the case isn't moot. If the President has the power he claims, he could remove the program from FISA oversight right after the case was dismissed for mootness. Then we'd be right back to the original problem and without a judicial determination. But the law's not so easily fooled and there's an exception to deal with this very situation ("capable of repetition, yet evading review.")

Think about an abortion case. If the state won't let you have an abortion, and you claim a right to have one, you'd be out of luck every time because the baby would be brought to term before the appeals were decided. Gotcha? No, such a legal problem is capable of endless repetition, but will always evade judicial review. So, the case, under the exception, isn't moot and the pregnant woman has standing anyway. The same principle applies in the FISA cases.

Posted by: Rat on January 19, 2007 at 2:47 AM | PERMALINK

I just told my local grocery store that will no longer shoplift from them. I guess that makes their legal action against me moot too.

Posted by: ogmb on January 19, 2007 at 2:48 AM | PERMALINK

Sue the motherfucker so others know never to do this again.

Sorry for my language, but I feel strongly about this.

Don't let the snakes slither away.

Posted by: Jimm on January 19, 2007 at 2:49 AM | PERMALINK

Thank you Rat. That's what I wanted to hear although I don't think Leahy or Specter will let any if this go. They both have an axe to grind for the last few years.

My realplayer has fritzed this week and I haven't sorted it out.

To hear Leahy v Gonzalez, go here and audio this or "Gonzalez under fire..." at the bottom. It is worth it to hear Gonzalez's smugness falter.

http://www.npr.org/templates/story/story.php?storyId=6906864

Posted by: notthere on January 19, 2007 at 3:00 AM | PERMALINK

Hey, you,
get off of my back

Posted by: Jimm on January 19, 2007 at 3:02 AM | PERMALINK

Sticky issue here that shouldn't automatically be broken dwon into right or left grid. First of all, the bugging serves as a viable method of unearthing genuine plots that wouldn't, otherwise, be uncovered - to a great extent because of government incompetence. Should we expect the intelligence services to do the appropriate detective work necessary to crack terrorist plots? No way. Bugging etc. may not be the ideal form of finding out what's really happening, but how many other workable options are there today?

Posted by: laurent breach on January 19, 2007 at 3:09 AM | PERMALINK

Quite to the contrary laurent, we should push for a privacy amendment to the constitution, along with an amendment for the freedom of information, transparency in public operations, and accountability in public representatives and officers.

If you want to the government to be able to listen to any of your conversations at its discretion, move somewhere else than the land of liberty.

Thanks.

Posted by: Jimm on January 19, 2007 at 3:34 AM | PERMALINK

Not very sticky to me.

The issue is simply this. In the past the government has proven itself incapable of not infringing personal rights, and has proved so again. The laws were instigated for that very reason. If the administration disagrees with them, then changes should be debated in daylight and in the context of past and present abuses.

Anything less in itself undermines democracy as, in my opinion, would most degradations in privacy and increase in government intrusion without the most severely controlled firewalls.

The government has in no way earned anyone's trust. The reverse has ever been the truth.

Posted by: notthere on January 19, 2007 at 3:39 AM | PERMALINK

The Bush Administration wasn't just bugging individuals, they were data mining. Of course, it was all non-political. Right, Carl? Just like the firing of US attorneys investigating Republicans?

Posted by: mario on January 19, 2007 at 3:40 AM | PERMALINK

Bugging etc. may not be the ideal form of finding out what's really happening, but how many other workable options are there today?

One of the greatest methods is to be a country/government that would-be informants might possibly want to work with but the US of A seems to have rejected this option for now and for the foreseeable future.

(Heck, even for me, a Canadian, it would be a real tough call to inform or not of a terrorist plot against Drexel Hill, Chester country.)

Posted by: snicker-snack on January 19, 2007 at 3:44 AM | PERMALINK

...Just like the firing of US attorneys investigating Republicans? -- mario

Ah, yes. I was listening this afternoon to Gonzalez, all under oath. Yeah, all under oath! He said he would only fire those AGs for their work performance, never to interfere in a political way. Right!

Let's hear it from all those fired AGs. How incompetent were they?

That should illicit some interesting answers.

Posted by: notthere on January 19, 2007 at 4:08 AM | PERMALINK

"elicit" for "illicit", of course, though an interesting mistake.

Getting close to bed time!

Posted by: notthere on January 19, 2007 at 4:12 AM | PERMALINK

It's nice that this specific program has been brought under the oversight of the FISA court, but what's more important is the broader question of whether the president has the authority to eavesdrop on American citizens without a warrant

Yes, but what's even more important is the murder of thousands of innocent people here and abroad. The legal argument is interesting, but the murder of my family and friends is a more urgent concern.

Those who made the program public destroyed much of its effectiveness. Since it involved international phone calls, it could have prevented attacks overseas as well as here. Those who did the damage ought to apologize after the next big terror attack occurs here or in Candada or Europe or in Asia. And, the person in government who illegally divulged the program ought to be in prison.

Posted by: ex-liberal on January 19, 2007 at 6:33 AM | PERMALINK

The Constitution offers only one remedy for presidential abuse of power - Impeachment.

Care to show some balls, Democrats? Typing away on some political blog does jack squat in reining in this out-of-control presidency. Write your Senators and Representative and demand the impeachment of both Bush and Cheney. I have.

Posted by: The Conservative Deflator on January 19, 2007 at 6:38 AM | PERMALINK

The issue was never eavesdropping, and BushCo won when they got it framed as such.

The issue was and is that they clearly and blatantly broke the law!

Posted by: Gore/Edwards 08 on January 19, 2007 at 6:39 AM | PERMALINK

so, according to his own words, Bush has chosen to weaken his protection of our country for mere political reasons.

WHAT A PUSSY!

Posted by: cleek on January 19, 2007 at 7:32 AM | PERMALINK

Actually Kecin, the Senate is the place to litigate this matter, not the Supreme Court. Chief Justice Roberts can preside, however.

Posted by: JMG on January 19, 2007 at 8:16 AM | PERMALINK

And the Bush administration is still insisting it has the right to wiretap ANYONE, and that would include even Democratic Congress members.

This is a lawsuit that MUST go foreward, Bush has no claim to violated his oath of office to protect the US Constitution, or wiretape anyone he wants to wiretap. I don't for one minute believe it had anything to do with terrorism because Bush would have used FISA, if indeed that was he was after.

Bush NEVER had this right. Its an impeachable offense and if Dems are serious about oversite, they better learn how to play hardball as nasty as this administration does. Don't back down.

Posted by: Cheryl on January 19, 2007 at 8:22 AM | PERMALINK

Who cares what they're doing in the future? The question is whether they broke the law over the past few years. That's what will be on trial.

Posted by: Jack on January 19, 2007 at 9:26 AM | PERMALINK

Y'know, I have no idea whether the "submission" to FISA that Gonzalez announced is real or some sort of bullshit. One must, at this point, presume the latter. And if it is bullshit, then of course the controversy is still very much real and alive and should be reviewed by the courts.

But...if they've really, honest-to-God backed down and are complying with FISA...Well, to say that you want the Supreme Court -- especially THIS Supreme Court -- to weigh in on the question nonetheless is just not wise. And it's why the Court has from its inception refused to involve itself in abstract questions. (And no, I don't believe the "capable of repetition, yet evading review" exception applies here.)

Look, I'm a litigator -- and when someone is violating your client's rights, and you threaten them with litigation, and they back down -- that's called a "Win". Let's be very skeptical of whether Bush has really backed down; but if it turns out to be the case, let's take yes for an answer, ok?

Posted by: Glenn on January 19, 2007 at 9:29 AM | PERMALINK

"ex-liberal": And, the people in government who illegally conceived and conducted the program ought to be in prison.

Fixed it for you.

Posted by: Gregory on January 19, 2007 at 9:49 AM | PERMALINK

Let's review:

1) According to the AG and the WH, the warrentless domestic wiretap program is essential for protecting security, and the president had and still has the legal authority to conduct these programs.

2) According to the AG, for the past two years, four years after the program began and a year before its disclosure in the NYT, the DOJ has been working with the FSC to bring this vital program under FSC review.

3) The current announcement has nothing to do with the takeover of congress by democrats this month.

4) The reason and consequences for the change now is too sensitive to discuss, even in a classified briefing.

I'm sorry, but is this story even remotely plausible? The most reasonable interpretation of this is that the domestic eavesdropping program included listening in on political opponents, something they believed a FSC judge wouldn't sign onto. The real question now is has the judge given them enough latitude to continue to do so.

Posted by: Jeff S. on January 19, 2007 at 10:01 AM | PERMALINK

I'm sorry, but is this story even remotely plausible?

No.

This has been another edition of Simple Answers to Simple Questions (h/t Atrios).

Posted by: Gregory on January 19, 2007 at 10:08 AM | PERMALINK

I think this nails it. Pretty much what they did with the Padilla case. Just before they were about to get their hands slapped, they reversed their position.

Seems to be their genral marching orders right now... trying to defuse investigations and avoid accountabiity for their actions.

Posted by: Buford on January 19, 2007 at 10:08 AM | PERMALINK

Bear in mind that FISA at its best is the most minimal fig leaf of judicial review that the drafters could come up with. What the adminstration recently accepted is even less than that. The battle lines here are between no judicial review whatever, and a nearly microscopic amount of judicial review.

Posted by: Ken D. on January 19, 2007 at 10:19 AM | PERMALINK

Dick Cheney, David Addington and fellow travelers in the "conservative" movement claim the executive is sovereign (a word actually used by Nixon to justify his authorization of wiretapping, opening domestic mail, and burglary) and his powers cannot be curtailed, and therefore investigated, by any other branch of government. This claim is informed by the idea of the executive as the sole arbiter of matters of security where he acts as a law unto himself. By this they mean he can, if he wills, suspend any right or ignore any law if he deems it necessary to maintain security. The executive determines the scope and nature of that security. It could be domestic radicals, political enemies or foreign threats.

This is beyond the powers of the executive in times invasion or rebellion. They are inherent powers the President can employ as a management tool.

Nixon put it best:

“But it is naive to attempt to characterize activities a President might authorize as 'legal' or 'illegal' without reference to the circumstances under which he concludes that the activity is necessary."

Cheney is trying to rescue the lawless ethos of the Nixon administration and enshrine it as the American tradition. It is not shocking they want this kind of power. Ambitious men have justified it for as long as there has been civilization. But this is exactly the kind of power the American revolution and Constitution were suppose to limit. The Constitution was written for these kind of bad men- these would-be kings.

Americans need to consider the constant state of emergency the leadership in both parties has sold them since WWII. This never-ending emergency can only elevate debase men like Nixon and Cheney to positions of power. It is clear that once in charge they will erode every liberty and right provided by the Constitution right down to habeas corpus and claim dictatorial powers for any mindless fool who can maneuver his way into the White House.

Posted by: bellumregio on January 19, 2007 at 10:22 AM | PERMALINK

Yesterday it was clear that Alberto hasn't abandoned his belief that the President is not obligated to follow the law. Somebody above his pay grade seems to have caught on that Alberto and John Yoo might be wrong. Maybe, just maybe, a President with a 32 % approval rating shouldn't be pretending to be king.

I suspect that this change reflects the advice of the people who recently pushed for and obtained the replacement of the Harriett Meirs as White House counsel. Those folks (I don't know who they are but they seem to include Laura) probably told the President in no uncertain terms (something beyond either Harriett or Alberto) that he could find himself impeached if he kept pushing his illegal wiretapping position.

Posted by: Ron Byers on January 19, 2007 at 10:39 AM | PERMALINK

It's nice that this specific program has been brought under the oversight of the FISA court

Don't believe that for a second. At best, the GWB admin bribed/coerced/cajoled one of the FISA judges to give blanket approval to their eavesdropping/data mining program. This is hardly the intent of FISA, and hardly protects the rights of US citizens.

Posted by: Disputo on January 19, 2007 at 10:41 AM | PERMALINK
The Constitution offers only one remedy for presidential abuse of power - Impeachment.

False. The President is not above the law, the whole panoply of legal process is available against the President. Impeachment is a special remedy for actions for which other remedies are unavailable, insufficient, or frustrated by a civil officers continued abuse of his position to avoid accountability.

That being said, its an appropriate remedy for several of the abuses of this President and others in his administration.

Posted by: cmdicely on January 19, 2007 at 10:49 AM | PERMALINK
Cheney is trying to rescue the lawless ethos of the Nixon administration and enshrine it as the American tradition.

Its worth noting that Cheney has essentially admitted this outright, its not an out-of-the-blue hostile characterization.

Posted by: cmdicely on January 19, 2007 at 10:50 AM | PERMALINK

there's an exception to deal with this very situation ("capable of repetition, yet evading review.")

No, "capable of repetition..." is for situations where things change too fast to get through the courts (e.g., standing arises from a transient state like pregnancy).

This is a "voluntary cessation" case, where the government would not be allowed to evade review (I hope) just by ceasing the contested practices, thus preserving the power to resume those practices later.

Posted by: dj moonbat on January 19, 2007 at 10:54 AM | PERMALINK

From one perspective the details don’t matter. These people have nurtured the same views for over 40 years. If rebuked they will just go underground with their machinations.

The important point is that the American ‘conservative’ movement is properly understood as another 20th century authoritarian movement against liberal constitutionalism, consensus government, and pluralism.

Posted by: bellumregio on January 19, 2007 at 11:15 AM | PERMALINK

Robert Ho, a Singaporean dissident has an interview in the Asia Times On Line today. He said some very interesting things about blogs and government attempts to stop people from questioning its authority. The NSA is going to need much better computers if it is going to read every comment on every blog and every email.

"Most still have to be careful, but the Internet is spawning a freedom to think, associate and opine. For example, you can read a blog and leave an anonymous comment. That comment may be a sentence or a whole essay. Can Lee Kuan Yew clamp down on commentators? I think not. Can Lee Kuan Yew even take bloggers to court? Maybe today, but it gets less and less likely as the Internet age progresses. Already, there are proxies and encrypted communications that allow anonymous postings. If the PAP tries to wipe out blogs and Internet postings, all these will simply go underground."

Perhaps Mr. Ho has not yet heard about net neutrality being disposed of. In the US there will be a bipartisan effort to end net neutrality.

Posted by: Brojo on January 19, 2007 at 11:17 AM | PERMALINK
From one perspective the details don’t matter. These people have nurtured the same views for over 40 years. If rebuked they will just go underground with their machinations.

Its not whether these same people have the views that really matters, its whether (1) they are allowed in positions of public trust, (2) the views are socially endorsed and therefore more easily propagated, and (3) when the views are acted on contrary to the law and discovered, those so acting are held accountable.

So I would say that, even if what you say about "these people" is true, the details, and the responses to them, do, in fact, matter.

Posted by: cmdicely on January 19, 2007 at 11:37 AM | PERMALINK

I meant to include this with the last:

The important point is that the American ‘conservative’ movement is properly understood as another 20th century authoritarian movement against liberal constitutionalism, consensus government, and pluralism.

That's what conservatism has always been about, before and after the 20th century as well as during it.

Posted by: cmdicely on January 19, 2007 at 11:39 AM | PERMALINK

Ken D. wrote: Bear in mind that FISA at its best is the most minimal fig leaf of judicial review that the drafters could come up with. What the adminstration recently accepted is even less than that. The battle lines here are between no judicial review whatever, and a nearly microscopic amount of judicial review.

I agree. The tragedy of divulging this program is that the civil liberties gain was neglible, but the harm to our security is substantial.

Posted by: ex-liberal on January 19, 2007 at 11:45 AM | PERMALINK

More bullshit from "ex-liberal": The tragedy of divulging this program is that the civil liberties gain was neglible

You really get a cheap thrill from lying by omission, don't you? Of course it wasn't so much of a gain in civil liberties -- as in having new rights where none existed before -- as it was the opportunity to prevent the loss of civil liberties -- to wit, the right of citizens to be secure against unreasonable searches of siezures -- not to mention the opportunity to hold the government accountable for willful lawbreaking.

but the harm to our security is substantial.

Prove that statement. To have any credibility, you'll need something other than Administration claims that there was harm.

While you're at it, "ex-liberal", you stinking, neocon liar, I'm still waiting for you to back up your claim that people "want America to lose in Iraq."

Put up or shut up.

Posted by: Gregory on January 19, 2007 at 11:56 AM | PERMALINK

Kevin, the snooping HASN'T been brought "under oversight."

Instead, ONE, just one, FISA judge has issued a blanket OK, not a case-by-case approval.

That is NOT "oversight."

And Jimm, absolutely; I've written a couple of newspaper columns about the need for a privacy amendment, and how most continential Western European goverments already have one.

Posted by: SocraticGadfly on January 19, 2007 at 11:58 AM | PERMALINK

Buford wrote: "Seems to be their genral marching orders right now... trying to defuse investigations and avoid accountabiity for their actions."

Yup, and this policy stands in stark contrast to their oft-repeated assertions that what they are doing is entirely legal and ordinary. If they are so confident of this, why have they so desperately avoided any review or oversight?

Posted by: PaulB on January 19, 2007 at 12:02 PM | PERMALINK

By the by, "ex-liberal," by your claim that "the harm to our security is substantial," I presume you also believe that your beloved Administration, therefore, sacrifices American security for domestic political concerns. Welcome to the club.

Posted by: Gregory on January 19, 2007 at 12:03 PM | PERMALINK

What makes you think that the liars in this administration are telling the truth about what they are doing now? I'm sure there is a preemptive signing statement somewhere. And, firing possibly unfriendly US attornies is surely a signal to all of the results of disloyalty.

Posted by: Neal on January 19, 2007 at 12:11 PM | PERMALINK

Thanks for the approving quote, ex-liberal, but lest there be any doubt, I reject your conclusion totally. I am a judicial review/bill of rights person all the way.

Posted by: Ken D. on January 19, 2007 at 12:25 PM | PERMALINK
.... the civil liberties gain was neglible, but the harm to our security is substantial. ex-lax at 11:45 AM
Any time our civil liberties are restricted by an out of control government, it is a treat to our constitution and our way of life. That is an existential treat whereas the threats of terrorists are merely physical ones. Because FISA makes it easy to obtain legal warrants, following the law and obeying the Constitution poses zero threat to our security. Posted by: Mike on January 19, 2007 at 12:26 PM | PERMALINK

Not to put too fine a point on it, but a conservative within a liberal democratic tradition does not claim unlimited authority for the executive (e.g. Winston Churchill). Communism and fascism were radical authoritarian critiques of this tradition. The people around Dick Cheney present the same arguments for executive power that became popular on the right in Germany after the abdication of the Kaiser. They argue the security needs of the nation are too great for anything less than rule by decree. They thought the enemies within the state, often acting as foreign agents, necessitated a permanent parallel system of arbitrary justice overseen by the dictator and those acting on his authority. There was also the other normal constitutional order to handle less political issues.

The designation of enemy combatants is an expression of the dictator's dual system. This is a radical departure from liberal democracy and cannot be rightly called ‘conservative’ within that tradition. It is also distinct from monarchy . I believe it is the institutional result of the Cold War.

Posted by: bellumregio on January 19, 2007 at 12:36 PM | PERMALINK

Troll: "Those who made the program public destroyed much of its effectiveness.... Those who did the damage ought to apologize.... blah blah blah"

First things first: Robert Redford has called for a Bush apology for misleading the nation. That could help.

Then the trolls here could apologize to the reasonable people. That would help the discussion along.

Anyone man enough?

Posted by: Bob M on January 19, 2007 at 12:37 PM | PERMALINK

I for one welcome the self destruction of the republican party.Maybe in 2008 the Dems and Ind. parties can show somw repect for each other and we can get back to doing things that are truly great for this "once" great country.

Posted by: Thomas3.6 1/2 on January 19, 2007 at 1:04 PM | PERMALINK

Who needs an apology from Bush?

Were it not for the American and Iraqi lives that have been lost and endangered, I would have encouraged, cheered and applauded him for undressing the Republican Party for all Americans to see it in its gory detail.

Posted by: gregor on January 19, 2007 at 1:09 PM | PERMALINK

Krugman's column today is about the firing of the U.S. Attorneys.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 19, 2007 at 1:12 PM | PERMALINK

Gonzales also had this interesting exchange with Arlen Specter yesterday:

GONZALES: The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

Posted by: asdfg on January 19, 2007 at 1:42 PM | PERMALINK

Several comments and observation:

cmdicely:

Not to be argumentative, but impeachment is the sole remedy for a president who abuses the privileges of power. Better get out the old civics textbook. A president must first be impeached before other legal remedies are available against them.

bellumregio:

Very good analysis - you always have good insights.

Observation:

Kevin mischaracterizes what the NSA was doing as "wiretaps" and that is simply not correct. One commenter noted that the NSA was data mining and that is a better description of this nefarious activity. What the NSA was doing was getting call records, which are digital flat files containing data about originating and terminating numbers, etc., and sorting, filtering and applying statistical analysis algorithms to identify suspicious patterns, calls originating from dubious foreign locations like Afghanistan or the UAE, etc., as a basis for conducting additional surveillance. A wiretap, in its simplest form, involves attaching an alligator clip to a circuit or phone jack and listening in on the calls that come in or go out. Big difference.

Of course, Bush has mischaracterized the program himself, using some idiotic line like, "If al-Qaeda is calling the United States, we wanna know about it". But this data mining approach doesn't ensure that you are going to even identify an al-Qaeda member calling the U.S, particularly if the call originates in say, Germany, which is where much of the planning for 9-11 was done.

This NSA program was an intrusive fishing expedition that invariably would result in a lot of "false positives" like men calling their mistresses or calls from your Grandma in Egypt. The fact these arrogant assholes undertook such a broad, invasive program without Congressional oversight begs impeachment, or at least, censure.

Posted by: The Conservative Deflator on January 19, 2007 at 1:42 PM | PERMALINK

If the Bush administration is afraid of a federal court system packed with conservative ideologues, then their actions must be very, very disturbing indeed.

Posted by: Google_This on January 19, 2007 at 2:00 PM | PERMALINK

Conservative Deflator says: A president must first be impeached before other legal remedies are available against them.

This is wrong. Paula Jones, after all, was permitted to sue Bill Clinton while he was a sitting president. It has not yet even been fully established that a president is completely immune from actions taken while president, although Nixon v. Fitzgerald said that the ambit of absolute immunity for actions by a president was very, very wide.

Your civics textbook will only get you so far.

Posted by: dj moonbat on January 19, 2007 at 2:33 PM | PERMALINK
Not to be argumentative, but impeachment is the sole remedy for a president who abuses the privileges of power.

No, its not, in general; for specific kinds of abuse, that may be true.

Better get out the old civics textbook.

If a civics textbook says that, it is wrong.

A president must first be impeached before other legal remedies are available against them.

False, generally. Now, its true that the President is generally held to be immune from federal criminal prosecution while in office (this is different from the rather more contested dispute over the scope of immunity for acts done while in office). [Although the logic for this rests on a unitary view of the executive which seems inconsistent with the result in, e.g., U.S. v. Nixon in which intra-executive disputes were held not to be, as a class, non-justiciable.]

However, legal action may be taken against the President while in office, whether stemming from actions while in office or not, and remedies may be, and have been, imposed by the courts.

As a practical matter, impeachment and removal may turn out to be necessary to efficiently impose other remedies, as the ability of the President to obstruct other processes may continue while he remains in office.

Posted by: cmdicely on January 19, 2007 at 3:08 PM | PERMALINK

Again, to compel testimony in a civil case, as happened in the Paula Jones case, is a different matter than to impose criminal penalties on a sitting president - it cannot be done until after they have been impeached. Which is why I always say - impeach, then imprison George W. Bush, not the other way around!

Posted by: The Conservative Deflator on January 19, 2007 at 7:38 PM | PERMALINK
Again, to compel testimony in a civil case, as happened in the Paula Jones case, is a different matter than to impose criminal penalties on a sitting president - it cannot be done until after they have been impeached.

This is quite likely true (its generally held to be true, but various decisions which contravene the unitary executive theory suggest that it may not be the right result), but not what you said previously, which was that no other legal remedies were available without impeachment, not that merely criminal remedies were unavailable without impeachment.

Which is why I always say - impeach, then imprison George W. Bush, not the other way around!

On this much we agree, though if it were succesfully done the other way around, I wouldn't object.

Posted by: cmdicely on January 19, 2007 at 7:51 PM | PERMALINK

What cmdicely said. You said no remedies were available against the president. That's just crrrrazy.

Posted by: dj moonbat on January 19, 2007 at 10:10 PM | PERMALINK

Cspsn's Washington Journal early this morning presented ACLU's legal counsel for privacy issues, Timothy Sparapani, noting the Justice Department declined to appear. He says basic 4th amendment rights are being cut away blow by blow, the president has stepped over the line, congress needs to act-- the public needs to demand it,
and Gonzales in his rhetoric gave inconsistent positions testifying before congresss with "now we have the speed and agility we need but we still need to modernize FISA" --Sparapani, as a strong advocate of transparency in government, says this is inconsistent, adding that clearly courts have a role to play in multiple court cases; 40 cases were consolidated by the 9th district court, but still going on, he says
it seems there is an end in sight, BUT other warrantless spying is going on--the president admitted he is opening our mail, and it was disclosed this week they were attempts by the Defense Dept. & CIA to do background checks on military people. And the billions of innocent phone calls being monitored without a warrant in the US--
it has all been one-sided, with the administration not going to court, to congress or to the American people.
FISA was always flexible, Sparapani explains, able to grow with technology, yet the administration went around it. They failed to come up with a justification why they went around it to "modernize" it.
I take heart these issues will be spotlighted by the ACLU

Posted by: consider wisely always on January 20, 2007 at 8:34 AM | PERMALINK




 

 

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