Commander-in-Chief

George Bush is vigorously advancing an argument for essentially unlimited Presidential power. The basis for this assertion of power is the President's role as commander-in-chief. He is arguing, as conservatives have been arguing for some time now, that the position of commander-in-chief implies a position that must have authority that is free from any check or review from any source. That this complete independence is inherent to the position of commander-in-chief. In my opinion that is a nonsensical and unsupported interpretation of the meaning of the position of commander-in-chief, as I have argued elsewhere here and here. The appropriate role for the Congress and the commander-in-chief is that Congress will determine that the nation is at war and set the objectives of that war and what resources will be available to achieve those goals. The commander-in-chief is to determine exactly how to use those resources to achieve those goals.

It terns out that I am not alone in seeing the roles as such. This letter was sent by a number of Constitutional scholars to the leaders of Congress back in January, outlining this argument in a more detailed scholarly manner. (Thanks to Balkaninzation for the reference). To quote from the letter's final paragraph

The Constitution's drafters understood the immense national sacrifice that war entails. Moreover, they understood that during time of war presidential power tends to expand. For these reasons, the Constitution assigns Congress the power to initiate war and to fund and define the parameters of military operations.As James Madison wrote, "the constitution supposes what the History of all Gov[ernments] demonstrates, that the Ex[exutive] is the branch of power most interested in war, & the most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative branch]."

The vastly expanded powers claimed by George Bush for the President of the United States have no basis either in good sense nor in our constitution.

Promising

The fourth circuit court of appeals has handed down a ruling thoroughly eviscerating George Bush's theory of the unitary executive and upholding our constitutional protections and the rule of law. This is very good news. The conservative view of the unitary executive is completely at odds with our constitutional system and it is counter-productive to any security interests we citizens have. Granting the President nearly unlimited power to seize and detain American citizens does not serve to protect us in any way whatsoever. It can only serve to protect the personal interests of the person of the President, not of the nation or its people.

I recommend reading more detail about the case at Kos, and Hullabaloo.

Override Fails

Well the vote to override the veto failed as all expected. The purpose of the vote was only to put Republicans on the record on this issue. I was hardly going to comment on the vote, however one sentence in the WaPo article stood out for me.

The bill he refused to sign yesterday would have required the administration to begin the "phased redeployment" of U.S. troops out of Iraq no later than Oct. 1, with a goal of removing all combat forces by April 1, 2008, except those carrying out security, training and counterterrorism missions.

The highlighted part of the paragraph is what struck me. Now this has nothing to do with the appropriations bill itself, or Democratic strategy or the Iraq War. For that read Kos, or Digby or MyDD. The thing about that highlighted part is what it says about ability of today's press to actually report anything. A journalist reporting on the fate of a bill passed by the United States Congress ought to have at least a basic understanding of the American legislative process. The issue was not that Bush refused to sign it. If he had only refused to sign it, it would have become law on May 8. The President's signature is not needed for a bill to become law. It just isn't. The President did not refuse to sign the bill, he vetoed it. He sent it back to the Chamber in which it originated with his objections to the bill for it to be debated again and voted on again. That is different from refusing to sign. It may seem a minor point, but we should expect that reporters for the major daily newspaper of the nation's capital will at least get the minor points right. What I am describing is not a new feature of the Constitution. Our reporters should be familiar with the document.

Bush Weakening

It is my conviction that the only strength Bush has ever had was his unwavering insistence in his own near absolute authority. A refusal to ever doubt that one is correct and in charge can carry one very far. However, unless this conviction in one's own abilities is backed by actual abilities, disaster and failure eventually follow. Bush's assertions of competence and authority have always been fantasies. We are seeing that collapsing now.

Consider Bush's threatened veto of the recently passed spending bill for Iraq. Gene Lyons has raised an interesting point, why is Bush threatening a veto rather than use his long standing signing statement. For all of Bush's bluster and confidence over the past several years, he has never had the authority he claims. He was able to assert it and use it only because of a completely servile Republican majority in Congress and a Democratic minority unwilling and/or unable to put forth effective resistance. With the Democrats in Congress not rolling over and offering a fight, Bush's bluster is coming apart. With the Democrats unwilling to roll over he must fall back on the authority he actually has, the veto, not the fake authority he has been claiming, the signing statement.

This brings me to something I've been wondering about for a while now. Why signing statements? That is, why not not-signing statements? Consider what the US Constitution has to say about bills becoming law in Article I, section 7

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Note the part I highlighted. If the President doesn't sign the bill it becomes law anyway. So the President could just as well not sign the bill, state why he thinks it should not be signed and let it become law that way. Such a move would be more consistent with the constitution and more honest. I believe that Bush has chosen instead to use signing statements in order to maintain the fantasy that his signature is needed for the bill to become law (it is not) and to assert an equal or even superior status to Congress in making law. It is this fantasy authority of his that is coming down now that the Democrats are asserting themselves in Congress.

Understand that I am not claiming that Bush's power and authority are going to immediately vanish. His fantastic claims to authority are falling away, his actual authority, as President, will remain and be effective. Also, he will continue to fight for his war, he will not be giving up. He will continue to fight because that is all he has, his unwillingness to ever change his mind. That may seem an odd claim, but there appears to be about 20-30% of the population that admires that steadfastness above all else, and at this point, that steadfastness is all Bush has. If he gives it up, he is nothing to everybody.

Congress and the War

A lot of commentary has been put forth on the limitations of what exactly Congress can do to limit President Bush's escalation of the Iraq war. A lot of this commentary, in my opinion, is quite wrong.

Kevin Drum and Big Tent Democrat argue that the only Constitutional option available to Congress to limit President Bush's war making is to cut off funding. They argue that something like Obama's proposal to limit the number of troops that Bush may use in Iraq is an unconstitutional violation of separation of powers. I am decidedly unconvinced by their arguments as I'll show below.

For other view in opposition to Drum and Big Tent see Matthew Yglasias and Mark Kleiman.

The first place to start in understanding why Drum and Big Tent are wrong is to read Glen Greenwald's recounting of how the Congress has, in fact, already exercised the powers that folks are arguing it can't. In 1993 Congress expressly limited the forces which could be used in Somalia and set dates as to when those forces had to be removed. The passage of those resolutions limiting Presidential authority was lead by Republicans in Congress, including many of those arguing now that such legislation is unconstitutional. At the time, not only were had these Republicans not yet discovered the unconstitutionality of the legislation, but no one else was apparently aware of it as well. The sudden discovery of this principal well into the third century of the Republic's existence suggests to me that it is not built on a firm foundation.

The arguments for limited allowed Congressional response seem to me to depend upon very odd assumptions about the inherent power of a "commander-in-chief". The arguments seem to insist that it is an inherent power of a "commander-in-chief" to use any and all forces under his command to achieve whatever objectives have been assigned to him. In other words the only option open to the people of the United States should we deem that some limited military action against some foreign power is called for are:

1. Forgo the action and live with the condition that called for the action, however dire it might be.
2. Declare war, in which case the President may use every last bit of the military of the United States against this power, however unwise such a large use of force might seem

The one option which is absolutely forbidden to us is to declare war and direct the President to eliminate the condition which provoked hostilities using only that portion of the military deemed wise to use. Why this option should be forbidden is a complete mystery to me.

At every level of command in the entire structure of the United States military it is a perfectly normal event that a commander is

1. assigned an objective to achieve
2. instructed as to what portion of the forces under his command may be dedicated to the objective.

There is no general rule that if an officer is assigned some objective that he may always use the entirety of his forces to achieve it. Military command would, in general, be rendered impossible if a commanding officer could not order a subordinate to accomplish some tasks using a portion of the subordinate's forces while leaving the rest in place. I have seen absolutely no reason why the President as commander-in-chief should not face the same condition.

In the President's case the military objectives he is given are set by Congress via a declaration of war. And just like any other commander of some portion of the United States Army and Navy, it is perfectly reasonable for Congress to assign to the President not only the objective but what forces he may use to achieve it.

Habeas Corpus

Link to Daily Kos: Clearing Up The Confusion Over Habeas Corpus

The above link is to a useful diary on Daily Kos on Habeas Corpus, the Supreme Court and AG Gonzales.

Impeachment

There has been much talk round about the internets, in lefty circles, about impeaching the President. Indeed, there has been a fair amount of consternation about the failure of the Democrats to get cracking on this and start impeaching the man ASAP. Now I am no fan of Mr Bush's, and agree fully that the sooner he leaves office the better. Immediately does seem too long a wait, and two years is hard to imagine. However, those dreaming of impeachment need to keep a few things in mind.

The first thing to consider is the Constitution and what it actually says about impeachment. Specifically, it says:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. [emphasis added]

Now he can be impeached, as Clinton was, with a simple majority vote in the House. However, he can also stay in office, like Clinton did, with anything less than two-thirds of the Senators voting to convict. So keep in mind two things (sorry for the repetition, but it is important)

1. We need to have two-thirds of the Senate willing to vote for conviction to remove him
2. Any attempt to remove him from office that fails, will make him much, much stronger than he is now.

Things can still get a lot worse if an attempt has been made to remove him from office and that attempt fails. For George Bush to do harm to this country he needs to have people in the executive branch do things he orders. Many people will obey Bush's illegal orders if he is strong and secure who will resist them when he is weak. Attempting, and failing, to remove him will embolden those people.

This brings me to the current set of bills the Democrats are putting forth that many folks argue are too little, too weak. Consider this, if we can't get two-thirds of the Senate to vote for a non-binding resolution expressing Senate disagreement with the President on Iraq, or two-thirds willing to override a Presidential veto on funding, then there is no chance is Hell that we will get two-thirds for impeachment. However, if the Democrats can get a growing number of Republicans to vote for these lesser things, and if the Republican disaffection with Mr. Bush keeps growing, and Mr. Bush's popularity keeps falling, then the possibility of veto proof majorities for truly restrictive legislation become possible. I think that it is this process that the Democrats are starting and that this process is the only chance to rein the President in. The flip side of this argument is that if the votes to impeach the President ever do materialize in the Senate then the votes to tie his hands with legislation will already have been present for some time.

As an aside, the reality is that given what the Constitution says on the subject of impeachment and the party distribution in the Senate, the question of impeachment is entirely in the hands of the Republicans. That is just the way things are. We need to work within the political reality that exists, not the one we wish existed. We are, recall, the reality based community.

My Opposition to Alito

There are a host of reasons to oppose Alito as a SCOTUS justice. However, one thing stands out for me as, in itself, sufficient to oppose his nomination. He has taken the position that

Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress,...

to argue for the value of presidential signing statements and how the court should consider them as equal to legislative intent. Anyone this ignorant of the actual US Constitution should not sit on the highest court. The US Constitution clearly states in Article I section 7

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

If the President fails to sign the bill it becomes law "in like manner as if he had signed it", his signature, his approval is unnecessary so long as congress stays in session for 10 more days. Even if he disapprove's congress may overrule him. Alito's claim that "the President's approval is just as important as the House or Senate" is nonsense. The President's approval is completely unnecessary, Congress's approval is essential. These are not equal.

Gore's Speach

Hits all the right points.

The following selections

The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.

A commitment to openness, truthfulness and accountability also helps our country avoid many serious mistakes. Recently, for example, we learned from recently classified declassified documents that the Gulf of Tonkin Resolution, which authorized the tragic Vietnam war, was actually based on false information. We now know that the decision by Congress to authorize the Iraq War, 38 years later, was also based on false information. America would have been better off knowing the truth and avoiding both of these colossal mistakes in our history. Following the rule of law makes us safer, not more vulnerable.

and this

Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.

Once violated, the rule of law is in danger. Unless stopped, lawlessness grows. The greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles. As the executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.

also this

The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.

Yet, in the teeth of those dangers, they insisted on establishing the full Bill of Rights.

Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country? Is America in more danger now than when we faced worldwide fascism on the march-when the last generation had to fight and win two World Wars simultaneously?

It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they did. Yet they faithfully protected our freedoms and now it’s up to us to do the very same thing!

just to select a few, sum up many of the points I've been making here. I could quote a great deal more as well. It is truly an excellent speech. Read it.