Wednesday, January 18, 2006


The Bush Führerprinzip Doctrine

American Civil Liberties Union sues to stop domestic spying without warrants.

"President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it,” said ACLU Executive Director Anthony D. Romero. “The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon.”

Read all about it.

Read about the plaintiffs and other info.

On the "unitary executive" doctrine:

" ... The position taken by adherents of the 'unitary executive' doctrine ... holds that a U.S. President can not be restrained by any law, national or international. Critics note that such a stance, resembling the Führerprinzip, is not unlike the one seen in police states. With this in mind they point to a statement by Bush in December 2000 when he joked that 'if this were a dictatorship, it would be a heck of a lot easier – so long as I’m the dictator.'

Read all about the "unitary executive" doctrine.


TheConstitution of the United States of America does, indeed, give the President of the United States the entirety of the executive power. This seems to be another case of people not liking what the Constitution says. In true fashion, they'd rather go to the courts than to the legislature and ask for a Constitutional amendment.
I’ll freely admit this is the unresearched opinion of an interested Brit, but I always thought that Executive Power was the merely the power to enforce the Constitution and the Law, not the power to set them aside. Is there an accepted definition of Executive Power somewhere? If the Executive is above the law, that totally undermines the system of 'checks and balances' which is supposed to keep individual megalomania in check.
Howdy, Liam.

Shame that one from the Mother Country seems to have a better handle on matters tha ... some ... others.

Rem, if we followed the Constitution to the letter, jot and tittle, this blog would probably not exist, because the goldarn First Amendment guarantees the freedom of the press -- and this aint a dadgum press.

Then there's that whole three-fifths of an Indian non-taxed stuff.
Sorry. I got that mixed up.

Article 1, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
ER, You help my case with your citations. I believe the thirteenth and fifteenth amendments correct those 'problems'. Amendments, not judgments were the answer.
Also, we've had the discussion of "the press" before. I don't think your definition is correct, and in my research (limited though it was), I find nobody else who interprets 'the press' in the way that you do.
You'll probably find ageement with E.R. among those who have studied journalism history and journalism law, and know that the "freedom of the press" means that publishers will not be taxed by the government.
Free speech is a different matter.

And Rem, Liam is correct. The President does NOT hold unlimited power. As the executive branch, the President can only enforce the law of the land. He is NOT above it.
The key to this discussion is "checks and balance". The president is not "above" the law, but so long as he is president he (and he alone, not the vice, not the staff, or other henchmen) is "outside" the law and it can not touch him, not even for murder, rape, child molestation, not for nothing, nada. But he can be impeached, and that is the check and the balance to granting such excutive powers. Once a president is no longer president he is fair game for any laws broken during his time as president. If that would work or how that would work is yet to be tried. But it hangs over every presidency as a possiblity.

The last president to unilaterally commit crimes against humanity and the consitution that was not held accountable was Andrew Jackson.
Another point:
By the way as an ex-soldier, you should know that every soldier takes an oath to protect and defend the Constitution (not the Country, not the President), from the lowest private right up to the Joint Chiefs of Staff. No soldier is under any obligation to follow an illegal order. In practice that is a really hard thing to do, but it is the law. So if for instance, if Bush ordered the military to take all of Congress into custody, or impound the Supreme Court,or blow the shit out the entire state of Oklahoma, the military would have to decide if that was a lawful order. The Comander in Chief, is not the supreme comander of the armed forces, the Constitution is, and the Constitution means what the Supreme Court says it means.
"when he joked that 'if this were a dictatorship, it would be a heck of a lot easier – so long as I’m the dictator.'"

Who knew he wasn't joking?
A word of caution to my Republican friends:
GW obviously led a shelterd life. He aparently never learn the basic lesson in Kindergarten, that if you change the rules to a game, the rules change for everybody not just you. Even if he plans to hold on to power by force of arms, that means he can lose power by force of arms. But given that such a senerio is not probable, then all he is doing is setting up a super strong presidency for eventually a future Democrat to inhabit. Just imagine my dear Republican friends a Hillery Clinton Führerprinzip with the first lady being Bill. Does anyone really want such a principle set for future Presidents to use. If not, then your party, the one in power, has to do something about it, now. You have the votes. Otherwise, see you guys and gals in three years to discuss what on earth has happened.
Here, here! The righties want to make this an anti-Bush thing. It's an anti-PRESIDENTIAL POWER thing, vis-a-vis Congress and the courts.

I really do prefer my federal government like my dang tires: balanced!
If you'll notice, I didn't take a stand on whether such power in the President's hands is good or bad. I simply pointed out that the Constitution gives him this power. If enough people oppose it - get it changed properly and don't try to legislate from the Judicial Bench.
Anyone else here a Star Wars geek?

If you haven't seen Revenge of the Sith, see it. Best Star Wars movie yet. And the one most relevant to our times.

Senator Palpatine comes to create the Galactic Empire because (GASP) the people let him. They believe his lies, they believe he has their best interest at heart. Anyone who questions his motives or methods (the Jedi) are silenced.

I see the American people asking for a dictatorship if you want my opinion., Bush has convinced everyone that everything he does is within their best interest, in the name of security. And he's relying on after-the-fact evidence--we know it works because it worked, basically. This is scary! This is supposed to be the kind of totalitarianism that Americans hate! Screw Hitler man, Bush is Stalin!

Look, I'm not advocating violent descent but going back to the movie: Jedi Master Mace Windu has Palpatine cornered and argues that he's too dangerous to be kept alive while Anakin argues to spare him. Anakin (who wants the chancellor alive so that he can learn how to cheat death) says that the would-be emperor should be tried in a court of law. Mace's answer: "He controls the Courts and the Senate."

Well, I see no need to execute Bush but I must say he is too dangerous to be in power in any regard. And he has an iron grip on the Legislature. Can we trust them to remove him from office. Hell no. I fear this is going to get a lot worse before it gets better, and violence may be what comes of it. I just hope that the farthest it gets is peaceful civil disobedience. I'd chain my self to fence before I took up arms.
Damn I was right then, I thought I saw Dick C. and Rummy sitting behind Palpatine in that scene where Yoda went after him, and that would have been Condoleesa (How long is your condo lease eh?)
sitting by his side. Lucas was a lttle heavy handed in his parallels, especially when he had Senator Amidala say, "So this is how liberty dies-with thunderous applause."
Yes, having been a closet Zorasterian most of my life I am a Star Wars fan. A fan, follower if you please, of Yoda, for whom there is a shrine in my garden.
A most remarkable shrine, it is.


I don't think Bush has Congress in his grop any more. I think once they get Alito on there, Repubs in moderate House districts who want to get re-elected will start jumoin' back from POTUS's extremes.
Robbins needs to grow up and learn a little history. Comparing Bush to Hitler is bad - something I don't recall seeing here before, although it occurs often on the far-left-leaning blogs (if this becomes the new norm, I'll have to second Toper's opinion on Cyber-Berkely). Comparing him to Stalin is purely asinine.
Some things ARE better left unsaid -- like rash comparisons of the president to actal mass murders and true dictators, and, ahem, admonitions to young'uns to "grow up."

Everyone ought to learn more history, though! :-)
In terms of the masterful use of the media to promulgate (those things that are not exactly true; we must not call them Lies), the current administration certainly deserves comparison with totalitarian regimes of years past. Also their effective demonization and marginalization of anyone who disagrees with them.
But yes, to actually call them despots is mean, I know. So let's euphemize, by all means.

And of course, since we're here and everything, of course the chief executive has the entirety of the power allotted to the executive branch, but again, to paraphrase Trixie, it's those powers alone, and not sole power over the entirety of the gov't, and especially in certain areas that aren't governed by the executive at all. Y'know, the whole Checks n' Balances thing again.

What I'm really loving about this (I'd call it a totalitarian regime, but this is America, and we don't have those things) is that the current administration can just come right out and say not only offhand weird jokes about dictatorship, but also make it clear that they don't feel any compunction about doing away with what remains of the Bill of Rights (and frankly, the War on Drugs took care of most of it)due to some flimsy excuse about preventing terrorism.
Even nicer, the people most likely to lose (but who think they're safe, because they have white skin and not-funny names) in this scenario love it dearly, and defend it with a fierce pride that is touching in its futility and childishness.
Y'know, the same people who would've said that Joe McCarthy was a great man, since there never was a Communist takeover of the U.S. in the Fifties. That kind of reasoning.
I think a better comparison, although not to scale, would be to think of the Bush administration as the kind of sheriff in a one-lawman town who nobody ever opposes because he also is the tax assessor, sits on the board of the bank, is part-owner of the newspaper with veto power over news and editorials, and whose wife is a teacher, who spys on what kids say their parents are saying and doing at home.

But damn it, Bush ain't an effing mass murderer. That's all I'm sayin'. And, of course, I realize how surreal and pitiful it is to have to say that in his defense.
And if it was a totalitarian regime, this blog woulda done been took down by now.

Totally discnnected from reality maybe. Totally cynical, perhaps. Totally serious about eroding civil rights in the name of security, yes. Totally intent on wresting power away from Congress and the courts, absolutely.

But I think it cheapens the meaning of the word totalitarian to use it now, and the hyperbole actually draws attentiomn AWAY from the actual legal and civic sins of Bush & Co.

More nouns and verbs, fewer adjectives, please.
Did I miss something? There seems to be references to things said that I can't see on the blog. Are you guys jumping back and forth between two blogs, deleting stuff, smoking dope, or I am just getting old and foggey? Sometimes I think ER just does this to confuse me, which ain't had to do after 9pm or before my morning coffee.
Nah, I'm witcha. The calling of names is always a sideshow.
I wonder though, sometimes are we a little too polite to call bullshit what it needs to be called, when we see it?
And-here's the problem-is the enforcement of an almost certainly unjustified war against the largely unarmed civilians of nations elsewhere coupled with what sure sounds like officially mandated torture...Not Somehow Mass Murder? I mean, I'm not a true pacifist: I think there's reasons why nations should go to war.
But this one is for profit, both political and economic, both short-term. Inexcusable, like murder.
The new Statist conservatism frightens me beyond my cynicism. Conservatives would like to aspire to be the heirs of the Founders, the Framers of the Constitution, a document marked by a constant desire to hedge unbridled government power, the famous checks-and-balances and rights that we learned in elementary school. How can they trust an Executive - especially one that could be held by their loathed ideological opponents - so completely. It almost makes me want to see Sinners in the Hands of an Angry Hillary. Almost.

1. If Marbury vs. Madison established that judicial review could invalidate laws passed by Congress and signed by the Presdient if they conflicted with the Constitution, then how could Executive actions not be subject to Constitutional and legal review by the judiciary, and rendered invalid when they conflict?

2. One clear tenet of Anglo-Saxon legal tradtion is that later laws supercede earlier laws on the same constitutional level when there is a conflict. Despite some desire of the first generation of Americans to include the Bill of Rights in the body of the Constitution, they actually were amendments to it and therefore supercede it when in conflict. Regardless of any interpretation of the powers in the body of the Constitution, the rights of the people in 1-10 and the later amendment modifies it. Therefore, one cannot claim the Executive Powers in Article 2, no matter how interpreted, permit violations of these rights, including the 4th and 5th amendments, at the option of the President. As my friend REM the strict constructionist would say, pass a new amendment if you wish to do so.

3. Ex Parte Quirin was a typically terrible wartime decision. There are combatants and there are criminals. The treason statutes are more than adequate to deal them. Recall, also, that disloyalty or taking up arms against the government are the prototypical political crimes: the argument that they must be decided by a jury of one's peers is even stronger than normal crimes.

4. The claim of wartime powers by the Bush administration becomes a claim to permanent powers, when the "war" is against a nonState adeversary, which is not limited to Al Qaeda or the Taliban but "international terrorism." As the Washinton sniper case demonstrated, continuous and very effective (in this case, domestic) terrorism can be committed by two morons with a Plymouth and a rifle. There are 4 1/2 billion people in the world - when could we EVER say that none hate us enough to pick up whatever minimal tools are needed: fertilizer, firearms, or box cutters, and kill Americans.
Rich, read "State of War," byJames Risen. I don't think torture was sanctrioned at the highest levels, although it-was intentionally ignored at the highest level, and I mean by the president himself. Still not mass murder., war, rightly or wrongly, is not mass murder -- not in the historical sense. Just don't buy it. This may be a rhetorical-semantic thing, though -- and it may very well be that the idea, even in the face of evidence or at least strong suggestion of so much wrong-doing, just sticks inmy still-red-blooded-American craw. I am biased to not believe the worst, even tho0ugh I can't assume the best.

TStock: I'm pretty sure that Rem thinks Marbury vs. madisan itself was a power grab -- as some did think at the time -- and so tends to dismiss any decision of SCOTUS sinece 1803. But Rem can splain himself himself on that if he so chooes.
The reason the decision has stood for over 200 years despite the overwhelming power and often coinciding interest of the Exec and Leg branches, is that it's widely recognized with an institution somewhat apart, those Constitutional protections and any number of amendments are simply meaningless. One could rely on the electoral process itself - assuming it wasn't subverted by Legislation or Executive order - but then that power could be exercised without reference to the Consitution, and, if the protection of minority rights of any kind were involved, squarely in the face of it. It's not just that M vs. M is right, but that there is no alternative.
True, but it's all by a gentlemen's agreement.

If the chief executive chooses to ignore the chief judiciary, there's not much that can be done about it, as proven by Jackson. What's the SCOTUS going to do? Send the U.S. marshalls to the White House?

(Actually, in the surreal world we live in, I can see that happening, although maybe not with this particular court.)
Hyperbole is a common rhetorical technique, used to make a point and not meant to be taken seriously. A historian I am not; a writer I am.

No, Bush is not Stalin, and his regime is not wholy totalitarian. But I do see it heading in that direction. And while the legislators themselves may not be unquestionably loyal to Bush anymore a vast majority of the PEOPLE still are, and it's my theory that the legislators who most rabidly want re-election do not want to be remembered as someone who "betrayed" Bush.

And no, Bush would not kill mass numbers of Americans; that would be far too obvious. Instead he subtly dictates the people; such as his speech to the Veterans of Foreign Wars. He encouraged people to not debate the idea of faulty intelligence or ulterior motives concerning the war in Iraq.

As the comedian on "The Daily Show" put it: "We can debate about anything he wants."

Bush uses his influence and his popularity to further his agenda. So okay, Stalin he's not, but damn it him and Palpatine would get along just great.

And before anyone says "But Bush hasn't ordered a purge of liberas like Palpatine ordered a purge of Jedi!" let me say that they are similar at least in ideas if not execution.

With that being said, I'll believe that the legislators will do the right thing when they do it.
Federalist, where is Aaronn Burr when we need him?
Robbins said:"
"With that being said, I'll believe that the legislators will do the right thing when they do it."

Once upon a time I would have agreed with you but......
Apparently Congress didn't learn those rules in Kindergarten either. You know the one about a change in the rules can be used by everybody.

Here is a snippet from the NYT editorial page, written by their long term Congress Watcher:

"The problem starts not with lobbyists but inside Congress. Over the past five years, the rules and norms that govern Congressional deliberation, debate and voting - what legislative aficionados call "the regular order" - have routinely been violated, especially in the House of Representatives, and in ways that mark a dramatic break from custom.

Roll call votes on the House floor, which are supposed to take 15 minutes, are frequently stretched to one, two or three hours. Rules forbidding any amendments to bills on the floor have proliferated, stifling dissent and quashing legitimate debate. Omnibus bills, sometimes thousands of pages long, are brought to the floor with no notice, let alone the 72 hours the rules require. Conference committees exclude minority members and cut deals in private, sometimes even adding major provisions after the conference has closed. Majority leaders still pressure members who object to the chicanery to vote yea in the legislation's one up-or-down vote."

So instead of critising the Congress let us critised old Hillery for critising the Congress.
Tstockman made some good points. In his second argument, he says, One clear tenet of Anglo-Saxon legal tradtion is that later laws supercede earlier laws on the same constitutional level when there is a conflict. I had never considered this point before (I guess it wasn't clear to me). It is an interesting statement. I need to think on it a while.

ER is partially correct in his interpretation of my views on Marbury v. Madison. I do believe it was an unConstitutional power grab by the Supreme Court - and by Marshal in particular. His views/opinions/judgements reshaped the court from what I believe was intended. The judicial branch of government was set up by the Founders to be the weakest branch of government. The reason for this is quite clear (to me, anyway) - because the judges are not elected by the people (and more importantly, because they cannot be voted out), their power should be limited. I.e., they should have less power than the other two branches. However, I do not dismiss all decisions made by the court since that time. There are several decisions made, though, where the Court overstepped its Constitutional authority and began to legislate (Brown v. Kansas board of education comes readily to mind). I guess that these decisions I mentally dismiss as being illegal/unConstitutional, but for practical, every-day purposes, I cannot totally disregard them. It will take a strong bi-partisan leader in the legislature to ever be able to put the Supreme Court back in check.

Tstockman's last point, though, warrants alot more fleshing out. The whole idea of the future, where foreign relations must deal with more than just nation-states (or, as T points out - domestic enemies as well) represents a paradigm shift. We (as a people) will have to find new ways to meet this challenge. The President's methods may not be the best way, but they are currently the only way being presented.
This comment has been removed by a blog administrator.
I tried reposting. Blogger must be stuck.
Unstuck now.
ER, et al, when Andrew Jackson thumbed his nose at Justice Marshall, and said something on the order of "If Justice Marshall wants to keep us from removing the Cherokee from Georgia let Justice Marshall come down here and do it."

Chief Justice Marshall had about a dozen U.S. Marshals under his control at the time. After Jackson ignored his Court order, he built himself a small army of U.S. Marshals to act as court police and enforcers of Court Orders. The first place he sent them was to the Indian Territory to provide Civil Law enforcement in the Territory.
Yes indeed, the Court is quite capable of sending U.S. Marshals wherever the hell they think they need them. Someday, might that include the White House?
Wow. Damn that was good, drlobojo.
Marbury Vs. Madison, as I understand it, was nowhere near the power grab on the part of the judiciary that it might appear to our eyes currently. It was a reaffirmation of the idea of checks and balances, which Jefferson would have gladly ignored.
It needed to be said again, in legal writ, that the various branches have their rightful purview, and have seperate-though-intertwined powers.
I know that might sort of sound weird to someone with entrenched political views from the early 21st century, but...Well, who cares what anyone fitting that description thinks? M v. M upheld the original intent of the Constitution, and did not 'legislate from the bench' at all.
Hell most of our legislators then or since haven't been qualified to legislate anyway, but that's a different post...
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