I recently finished Jane Mayer's The Dark Side, which recounts the ugly, ongoing history of the Bush administration's policies of torture. As to whether torture happened, there simply can be no doubt; the volume and horror of the practices approved by the government are just stunning. We have tortured the probably-guilty, the marginally-involved, and the utterly innocent. We have used waterboarding, “stress positions” (crucifixion is death by “stress position”, by the way), temperature extremes, nakedness, noise, sleep deprivation …. and on and on, often in conjunction and sequence with each other. We have deprived people of their rights, health, and their sanity. We know all this.
It occurs to one that the Constitution itself only continues to exist due to the consent of the governed. That means everyone — the Executive Branch, the lawmakers, the courts … and the voters themselves. If one institution after another simply decides to cast it aside, either by action or inaction, malice or neglect … poof! It disappears. It ceases to have any meaning. It has the power of a quaint proverb stitched onto a sampler, hung on the walls, if one after the other of our institutions simply decides not to follow it anymore.
That's not to say there hasn't been resistance to the overarching, malignant machinations of David Addington, Dick Cheney, John Yoo, and the other bad actors. People like Jack Goldsmith and others certainly displayed personal and professional courage in resisting the wild legal fantasies and fear-drenched megalomania of Addington and Yoo; and the Supreme Court has consistently ruled against the Bush Administration on its handling of prisoners. But to what end, exactly?
There simply must be prosecutions. It's not enough to imagine that we can restore the Constitution by popular vote, by just electing people of better morals, of more restraint, of greater reverence for the law and human history. Because “good people” come and go. You don't always get the people you need in positions of power. The law itself must be affirmed, and those who intentionally and flagrantly abused its practice — for the purpose of abusing humans — must be punished.
If there is no prosecution for the shredding of the Constitution, then we really have to wonder exactly what of our great inheritance is left to us. Without prosecution, we are all subject to the whims of those in power, and whether they feel like restraining themselves or not. We are back in the age of an unlimited monarchy — forget about 1787, we're going back to before the Magna Carta.
There is little doubt that prosecutions would be made to seem politicized. Perhaps Congress can appoint a special prosecutor. Whatever means necessary to keep the proceedings fair and impartial ought to be undertaken. Unfortunately, the question at hand is whether the law of the land itself is legitimate. Even if independent, a prosecutor still needs to refer to a common standard of justice, to essential shared values. But if law itself is in question, what remains of that?
At the close of the Constitutional Convention in 1787, someone asked Ben Franklin whether we had a monarchy or a republic. “A republic — if you can keep it,” replied Franklin. The lesson is that the Constitution is not magic, not an all-seeing eye, not a god that imperceptibly guides the machine of state. It depends on people of good faith and forbearance to keep it. Are there enough such people? Or have those qualities become another partisan bona fide, a cliche, a shibboleth easily defeated in a bad election year?
As voters, all that we control is who gets elected. That's where the restoration needs to start. And then our elected officials must re-establish trust, professionalism and honor to the powerful but mostly-invisible areas of the executive branch. So far our Congress has done little to do so. Now, or even next year under a new administration, is not too late to address past violations. There simply must be accountability. If nothing is punished, then all is permitted.
We're on very thin ice.
there have to be consequences for people who behave as badly as that lot has. If there aren’t, it serves as precedent for the next bunch of sociopaths who get into power. I firmly believe that we’d all be a damn sight better off if Nixon had been prosecuted, or at least impeached. That healing never did begin, and Cheney, Rove, Wolfowitz, etc. are the fruits of not taking that opportunity.
http://www.youtube.com/watch?v…
http://www.youtube.com/watch?v…
If so, you are an idiot. Please advise.
Well done. I’m in total agreement.
Charley,
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p>Is there some tradeoff involved in pursuing this aggressively?
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p>Asked about this in August, Obama said:
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p>
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p>Were he to win — hopefully campaign stay on attack in home stretch, as GOP will upshift to full diet Rezko/Ayers/SomethingNew — seems like Obama’s options are:
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p>1. Pursue aggressively
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p>2. Pursue with molasses Commission that will make findings in 2014
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p>3. Something else?
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p>You favor 1?
The lack of accountability in the Executive Branch over the last 8 years, and all the consequences of that, represent our number one problem.
If a society refuses to prosecute the worst of crimes, merely because they were committee by the most poweful people, it deserves to fail.
Terrorism is nothing compared to the destruction of our democracy.
There’s the rub. I think that as a political matter, it comes down to how many Republicans actually value the Constitution enough that they want this mess cleaned up. Gut check for them.
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p>In any event, I think I’m suggesting that it’s our duty to pursue it vigorously. Should he become President, Obama’s going to have his hands full eight ways from Sunday; but in any event, I think this is mostly Congress’ job. Not sure about that.
The term “witch hunt” comes from the Salem Witch Trials by the Court of Oyer and Terminer.
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p>What many may not know is that one of the judges on that court, Judge Samuel Sewall, publicly repented of sending 30 men and women to be hung, two of them his own friends.
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p>In his own words, Judge Sewell stated that:
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p>
See Page 200, Salem Witch Judge, The Life and Repentance of Samuel Sewall by Eve LaPlante http://forum.wgbh.org/wgbh/for…
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p>In fact, witchcraft was the terrorism-equivalent of those days; people did really believe in it and that they were under attack by Satan; witches were being put to death all over the known world. Only one man ever repented, sought to make amends, and in due course wrote the first anti slavery and women’s equality Op Eds of their day [The Selling of Joseph, written in 1700, and Talitha Cumi, written in 1724].
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p>I wonder if any of the torturers of the Bush Witch Hunt will ever achieve the moral statute of Samuel Sewall?
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p>On the other hand, prosecution for a crime requires a statutorily defined crime, which meets constitutional muster for clarity, as well as proof beyond a reasonable doubt.
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p>The analogy to the Salem Witch Hunt holds because all it takes know is what it took to be tortured as a witch then; mere accusation. Like with the accused witches, dying under torture or confessing under it does not clear the accused. I wonder, indeed, whether George Walker Bush will ever ask pardon and take upon himself the blame and shame of it?
that ranting about something in a blog posts may well change no minds and move no one to action. It may not even move me to action, in any particular case.
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p>I’m just saying what I think.
You are right. Will civilization be able to do what is right?
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p>There are many pairs of dirty hands in government. Would you expect Nancy Pelosi to head up an investigation? Any talk of an investigation and prosecution would have to come when a new administration is empowered.
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p>If that administration is Republican, there will be no change in the status quo. Certainly, John McCain will be four more years of the Bush administration. (You don’t expect the 2008 elections to be more honest than the 2004/2000 ones, do you?) There may be some hope with a new, Democratic administration, but there are many Democratic enablers out there that the Republicans have relied upon. I wouldn’t expect them to assist in any investigation.
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p>The present administration has many tricks to play with. They were given the power of declaring martial law by the enablers. It is possible that they would suspend elections or the transfer of government. It is my understanding that some congressmen were threatened with martial law if the bailout bill was not passed. Military forces already are now being rotated from the wars to the United States for deployment in the United States. There are also private armies such as Blackwater that owe allegiance to the present administration and never take any oath to protect and defend the Constitution. This is a strong possibility. There may not be a free country to defend.
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p>Expect at least a general pardon of crimes by the President (either the present one or successor) on all sorts of criminal activity that has gone on for eight years. A successor would reason that an investigation is too divisive for the country. Too, there is the rumour that the Bush family has purchased thousands of acres of land in Paraguay. If true, I expect it would be for a getaway.
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p>This is the stuff of law debate. I wonder if any campus allows such debate anymore? Vincent Bugliosi just wrote a book about a possible trial for murder. Times are just too interesting…
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From the time of Christ and even before that empires have come and empires have died. Through all of it small bands of Kings, dictators and other elite scumbags have maintained control of their respective populations.
That was up until America with it’s promise of freedom and equality under the law. Ah, but that was before modern life and the energy use it consumes. Third worlds are demanding their share and profit margins in those places are just to hard to ignore. It is after all an energy re-allocation problem here and has nothing whatsoever to do with finance. It is the intentional de-construction of a “free” nation to be replaced with a dystopian Globocorp one.
3 million vs 6 billion.
You are Mr Monopoly, financial King of “YOUR” world. Whose profit potential are you going to choose?
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p>It’s all over save the survivalist planning. Gut me sum recipies fur venison stakes, possum pie n wabbit stew.
You are obviously haven’t gone through Navy SEAL training or Marine Corps “RIC” (Recon Indoctrination Company)
What you call torture , so called, is an everyday occurence. Aforementioned is not for the feint of heart.
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p>If whomever in our government, or its agents, are charged with extracting needed information from our enemies, I care not a wit how they perform their assigned task, and if it cames me and mine safe—all the more power to them.
The enemy of my enemy is my friend.
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p>No one will be prosecuted for anything. You can take that to the bank.
Who happened to get “caught on tape”, as it were. A few bad apples, right?
Not just Charley. No Navy SEAL training necessary.
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p>
… gave the original order against torture. I think if he saw the interrogations being done in the name of the American people, there is little doubt he would recognize it as torture and order court marshals all around.
You say that “we have deprived people of their rights” and that there has been a “shredding of the Constitution.” I haven’t read the book you cite, but you seem to be arguing that “torture” by the President violates the Constitution. Which provision? The Due Process clause of the 5th Amendment? The Cruel and Unusual Punishment clause of the 8th Amendment? Another provision? And after you show why there has been a Constitutional violation, can you cite to the law that provides that a President can be criminally prosecuted for violating the Constitution. Of course someone with standing can bring a section 1983 civil suit against him, but I’m not aware of a statute that provides that violating the Constitution is subject to a criminal prosecution. Perhaps there is one, but I’m not aware of it. And if there is one, does it provide that all violations of the Constitution are subject to criminal prosecution? A lot of Presidents have violated many different provisions of the Constitution. In Clinton v. City of New York the Supreme Court found that Bill Clinton had violated the Presentment clause in Article 1 section 7. Should Bill Clinton have been criminally prosecuted for his violation of the Constitution? Where do you (or the statute you cite permitting criminal prosecutions for Constitutional violations) draw the line between which Constitutional violations are crimes and which are not?
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p>I don’t think I can agree or disagree with your contention that President Bush should be prosecuted for violating the Constitution until you can articulate which provision of the Constitution he violated and why that particular violation is a crime.
laws regarding treatment of Captures on Land and Sea, i.e., prisoners of war. Violation of a Congressional prohibition (Federal law) against torture, whether done by order of the president or done by a single soldier, is a crime. Nothing in the constitution specifically prohibits the president from stealing or killing- it is assumed that he will be subject to the law, like everyone else. If Congress passes a law prohibiting torture, he is as bound by that law as I would be, or even you, power wheels. The violation of the constitution itself lies in his refusing to acknowledge that he is bound by Federal law, which patently absurd notion he theoretically could use to “defend” any action, whether it is permitted to him by the constitution or not.
prosecution of an ex-president for crimes committed while in office, even if he were not impeached. If Obama issues some kind of a blanket pardon for Bush and Cheney, I’m sorry, but I’ll be calling for Obama’s figurative head come 2012.
Also, the constitution is the supreme law of the land. Asking us to point to the law that says that the president can be prosecuted for violating the constitution (say, by holding power wheels in Guantanamo for a year without a trial or any charges being brought), is a bit like asking us to “point to the law that says that Farnkoff can be prosecuted for violating the law against kidnapping.”
No one would be prosecuted for violating the Constitution and no one would be prosecuted in order to restore the Constitution. Nice to have that clarified. Too bad, there goes that talking point. I don’t think it will be as effective to claim that we have to prosecute the President in order to restore a particular provision of the USC (that you still haven’t cited.)
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p>But of course, a Congressional statute can also violate the Constitution. If Congress passed a law saying that it is a crime for the President to report to Congress on the state of the union or serve as commander in chief, then the statute would be Unconstitutional and the President would use that as a defense against the criminal prosecution. But then you say:
Could you please cite to where the President makes this claim? I would think that his actual defense will be that Congress creating a crime out of an action integral to the President carrying out his article II powers is Unconstitutional. Its not that hes above the law, its that the law itself is invalid.
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p>But I could be wrong. If you can provide cites to the law you think he violated and the statements hes actually made in his defense, then we could continue an interesting Constitutional law discussion.
and ignore them if he wants to? Is that in Article 1? Or nowhere? And Bush would have to be arguing that the constitution is unconstitutional to have given congress the ability to make laws about prisoners, because it infringes on his ability to be commander in chief. Which is what you’re arguing, I guess: the unconstitutionality of the constitution vis a vis our hero, Georgie. Which is why I’m going to bed.
If Congress passes a law, and by implication believes that the law is Constitutional, and the President disagrees, then what should the President do? I think the answer has to be that the President should not enforce the law. The President takes an oath of office to preserve, protect, and defend the Constitution. Therefore, the President cannot act in accordance with his oath of office and enforce an Unconstitutional law. Of course by not enforcing the law the President is risking that the Supreme Court will side with Congress. Then the President will be violating a valid law and should face the consequences under that law. I would encourage you to think beyond this President and think about the Presidency in general when you think about this issue.
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p>And as to your second point, there is certainly some inherent conflict between Congress having the power to “make Rules concerning Captures on Land and Water” and the President’s Constitutional position of Commander in Chief. But that conflict would go to whether the law itself is Constitutional, not whether the President’s act has violated the Constitution. I guess you would counter with the point that failing to enforce a valid law is itself Unconstitutional. But so is enforcing an Unconstitutional law. An interesting Constitutional conundrum.
And do you think that the president should ever make such a determination about laws (presumably signed by a previous president or passed in spite of his own veto) that specifically pertain to his own powers, either as president or as a subject of the general body of criminal and civil law? What if the president came to believe that the constitution would best be protected by murdering a few congressmen? Would he be subject only to an after-the-fact supreme court review of his legal reasoning, or would he be prosecuted for murder?
And what of cases where the Supreme Court has already weighed in? Does he still have monarchical discretion to act “as he thinks best”, in alignment with his own very personal interpretation of the phrase “commander-in-chief”? In that case, why even have a supreme court or a congress?
to enforce all laws that he believes are Constitutional, and he should not enforce laws that he believes are Unconstitutional. If he determines that a law is Unconstitutional and it ends up being Constitutional then he will have failed to enforce a valid law and he will be subject to whatever punishment that law provides.
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p>And as long as we’re throwing out silly hypos, what if Congress passed a law requiring the President to murder several cabinet members and removing all crimes associated with such actions. Should the President bring a gun to his next cabinet meeting and blindly comply, or should the President be able to question the Constitutionality of a statute that so interferes with Executive Power as to force him to murder his own cabinet?
It is most emphatically not the President’s job to ‘determine’ what is or is not Constitutional. That’s the Supreme Court’s job. The President is sworn to uphold “the laws” of the United States. Not “some of the laws.” Not “the ones he thinks are OK.” ALL of them.
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p>If he thinks a law is unconstitutional, he can petition the SCOTUS for a ruling. If they tell him the law is good, he has to enforce it.
Each branch of government has the obligation to act within the confines of the Constitution. If Congress believes a law is Unconstitutional then they should not pass it, instead of saying “oh well, we’ll just make the best policy and let the Supreme Court decide Constitutionality.” The President also has an obligation to only enforce laws that are Constitutional, instead of saying, “oh well, I’ll just enforce it and let the Supreme Court decide Constitutionality.” Article II, sec 1 of the Constitution mandates that the President take an oath to “preserve, protect and defend the Constitution of the United States.” How is it possible for the President to preserve and protect the Constitution if he enforces a law that he believes is Unconstitutional?
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p>And the President cannot “petition the SCOTUS” for a ruling. The Supreme Court can only issue a ruling in response to a case or controversy, and cannot give advisory opinions. You’re understanding of the Constitutional structure is seriously deficient.
Congressional laws are presumed constitutional, and nowhere is the president granted any constitutional leeway to refuse to enforce/obey laws, any more than a philosophically inclined tax assessor.
and that’s something the President should take into account when he attempts to evaluate whether a law is Constitutional. But that still does not change the fact that the Constitution requires the President to take an oath to preserve and protect the Constitution and that enforcing an Unconstitutional law would violate that oath.
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p>And your point in regards to tax assessors and military personnel supports the idea of a unitary executive, which you say that you have “heard of,” but of which your comment indicates that you have virtually no understanding. The Constitution vests the executive power in the President alone. All inferior executive officers serve the President and are removable by the President. Therefore, the President gets to interpret the Constitution on behalf of the Executive branch, including the tax assessors and the military personnel. The unitary executive theory does not permit Congress to excessively interfere with the execution of the laws. One example of excessive interference is the creation of quasi-executive agencies that will act as part of the executive branch but will not be subject to the President’s approval or removal. And it seems like the unitary executive is popular with some people from this website when applied on the MA state level. http://vps28478.inmotionhosting.com/~bluema24/s…
an insane or sociopathic president or a crazy and evil 2/3 majority of both Houses of Congress?
Nixon skated too, no?
Clinton was impeached based on perjury in non-material evidence in a case that never went to trial.
and that question is wholly irrelevant to the CONSTITUTIONAL obligations of each branch of government.
… outlines the process by which laws are enacted. The violation of the constitution is an extension of the violation of those laws. Of course, what is a violation of the law is a subject of opinion. Ideally, someone within the executive branch would start criminal proceedings with an arrest, but for some reason there isn’t anyone with the balls in the Executive branch to do so. Presumably the executive is of a differing opinion as to weather laws (FISA or torture statues most prominently) have been violated. To the extent that such differing opinions play out (in the absence of an outright arrest), there are two possible resolutions – judicial revue or impeachment. As such, given that there isn’t a judicial case for review (or that such review has been ignored in the case of FISA), impeachment proceedings are the obvious course of action to achieve resolution.
“Its not that hes above the law, its that the law itself is invalid.”
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p>The question is whether merely asserting such a thing — regardless of how flimsy and corrupt the legal reasoning — is enough to rescue people in the executive branch from legal jeopardy. I hope not.
in its delegation to Congress of the power to make rules about prisoners. If he is unable to establish that certain provisions of the constitution itself are invalid, then he should probably be found guilty of ordering people to commit crimes. Perhaps it will be easier to prosecute Bush for Federal crimes than for violating the constitution- failing to prosecute will not change the constitution itself so much as legitimize disregard for the law, and by extension, erode the authority of the constitution. Power wheels is right that the constitution does not provide specific criminal penalties for violation of it’s provisions.
I don’t know that there’s anything to be done about the President, since the means of prosecuting him is impeachment.
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p>However, surely there must be remedies against Addington and Yoo for producing opinions that place the President above the law. I am not a lawyer, but everything I have read suggests that these were not mainstream, professional legal opinions; they were widely held to be utterly fanciful. Is there no discipline for a lawyer who says black is white in the law?
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p>As I understand it, the “shredding of the Constitution” occurs when the constitutional lawyers contend that under the Constitution, the President needn’t follow the law (i.e. the Geneva Conventions).
nt
… are two different processes, no?
http://docs.justia.com/cases/f…
Actually, it’s hard for me to imagine what “remedies” might exist for this. Let’s posit that they delivered opinions that just about everyone in the outside world disagrees with. Is that a crime? Hard to imagine what the crime would be. Legal malpractice is a civil concept, not a criminal one, and moreover, I am not aware of a sensible way of talking about legal malpractice with respect to government lawyers at the level at which these guys were working.
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p>Furthermore, like it or not, the “unitary executive” theory (which underlies at least some of what’s at issue here) is one that has some legal pedigree and cannot be dismissed as just a flimsy excuse for Republicans doing whatever they want. The constitutional issues here are profound and should be taken seriously. There are no easy answers.
… of deliberate ‘malpractice’ in support of giving cover for an illegal act, would that be conspiracy under criminal law? You couldn’t hold them on the basic ‘unitary executive’ on this but maybe on some more specific legal ‘advice’ they gave on torture or wiretapping. I would guess that the burden of proof would be that:
1) He (they) knew the advice they were giving was BS.
2) They knew an act (criminal) was going to follow upon receipt of their ‘advice’.
Would the the burden of proof also need to include that they knew that, but for their advice, a criminal act wouldn’t have followed?
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p>I’m probably full of crap, not being a lawyer and all,… but I do wonder what it would take to prove conspiracy of a lawyer who’s defense is that it was a normal act consistent with their job and duties.
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p>I’d guess that there has to be a law somewhere that declares it illegal to give BS legal advice that you know is BS and you know is a necessary component of a conspiracy to commit a crime. If not it’s actually an ingenious move because it’s kind of a bootstrap defense… Lawyer: “I’m not part of the act,… I just dispense legal opinions.” Conspiratorial Criminal / Client: “I got advice that it was legal and I can’t possibly be held to a standard that says I should have known more about the law than my lawyer.”
As if the constitution intended to set up a monarchy, but forgot to mention it. The other branches were perhaps included as a practical joke? Would anything be prohibited the executive branch under the unitary executive theory?
“As if the constitution intended to set up a monarchy, but forgot to mention it.”
should be grounds for disbarment, IMO. And knowing a crime is going to be committed normally makes one an accessory, whether you are a lawyer or a shoe salesman.
Is everyone who followed said crackpot legal advice therefore immune from prosecution, since they were apparently following it in good faith?
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p>Is there absolutely no remedy for any of this? Does the President’s Office of Legal Counsel really rule the world?
David said:
Then Farnkoff replied calling it “BS legal advice” and you replied calling it “crackpot legal advice.”
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p>David is right here. These are difficult Constitutional issues and should be taken seriously. The advice was not “BS” nor was it “crackpot.” It was a fairly aggressive interpretation of the President’s Art. II power. But to suggest that a lawyer who gives a President advice based on existing but relatively undeveloped Constitutional law doctrines should be prosecuted criminally is reckless. Once again, please think beyond just this President and think of what it would do to the office of the Presidency to subject his lawyers to criminal prosecution for interpreting unclear areas of Constitutional law.
How so? At the worst, it might cause future administrations to be more respectful of the law, and of constitutional protections for civil liberties as well. Your use of the term “reckless” in this context is a red herring.
The law is unclear. Its hard to be “respectful” of a relatively undeveloped and constantly shifting area of law. A President’s lawyers have to try their best to interpret the limited number of court decisions regarding the Constitutional power and scope of the Executive branch that reach back over the past 200+ years. Its reckless, as well as near-sighted and foolish, to allow your hatred of the current administration to hamstring the ability of all future Administrations in getting legal advice, which is what would happen if you subjected their lawyers to criminal prosecutions for giving legitimate legal advice.
… isn’t a criterion for being demure or deferential toward those making claims,… it’s a context that calls out for an actual challenge and court case (or impeachment) in order to achieve resolution to the questions that are “unclear”. Far from being ‘reckless’, it’s exactly whats called for.
that attorneys who render legitimate legal opinions in unclear areas of law should be criminally charged for such legal opinions. If you think that pointing out the chilling effect that would have on the ability of future Presidents to get legal advice is “worthless” then perhaps you should no longer post on a website that claims to be reality based.
… on that issue earlier.
And I think it is far more reckless, short-sighted, and foolish to let the executive branch directly contavene laws passed by congress, and to keep defending the right of the executive branch to do so by referring only to his position as “commander-in-chief” of the armed forces. You never pointed out a passage that gave the president the authority to make rules regarding prisoners, not in the constitution, and not in Supreme Court case law. In fact, I’m not sure where the president is given the right to make any rules at all.
All you mentioned was the “oath of office”. The idea that the president can assert that he has the right, effectively, to make his own laws in order to protect the constitution, makes no sense, because he is not granted the ability to make the laws. He should enforce laws he “believes are unconstitutional” because they have been been subject to plentiful public debate and then passed in spite of him. The constitution requires him to enforce the laws.
If the Framers intended the President to have the power to unilaterally declare legislation constitutionally invalid, they would have explicitly granted him this power, and they certainly would not have allowed Congress to override a presidential veto of legislation.
Furthermore, if your idea were given credence, how could the American people ever ascertain whether the president broke a certain law because he disagreed with it, or because it would cause him personal inconvenience, or whether he really believed in good faith that the law was unconstitutional?
What makes a legal opinion legitimate, in your opinion? Proper grammar and spelling? Is the following “legal opinion” “legitimate”?:
“I, John Yoo, do hereby affirm that the president, in his constitutional duty as Commander-in-chief of the armed forces and in pursuit of his obligation to protect and defend the constitution, has the constitutional right to: suspend all civil liberties granted by said constitution, make arrests without bringing charges, disregard all laws enacted by Congress, and employ the armed forces to suppress any demonstrations of political dissent, among other things detailed in Appendix A. I have arrived at this opinion through an examination of Article 2, which grants the president the title of Commander-in-chief, and through an examination of the president’s oath of office, by which he swears to defend the constitution. As I can read the oath of office as referring to nothing more than the president’s own understanding of the constitution (for how could we expect more of a mortal man no more privy to the secret thoughts of our forefathers than to the thoughts of the Deity himself?), and likewise his very own understanding of the actions he has to take to defend his very own understanding of the constitution, anything the president undertakes is constitutional, so long as it cannot be proven beyond a reasonable doubt that he did not in fact have, in his own heart and mind, such an understanding of the constitution or of the actions he has taken in its defense.”
I’m rating your comments as I believe they should be rated. I gave one of your comments a 3 because it was a worthless comment. I made a point regarding the chilling effect that the prosecution that you were advocating would have, and you accused me of using that point as a red herring. Perhaps you should take the ratings system more seriously instead of using it to retaliate when one of your comments making an unfounded accusation is properly rated as worthless.
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p>And I’ve been forced to argue hypothetically this entire time because, although I asked you earlier to cite the criminal statute that you believe the President and/or the former attorneys of the President have violated and the facts supporting a violation of that criminal statute, you have still failed to do so. I have been forced to argue regarding a hypothetical Congressional statute that has interfered with the Constitutional powers of the Executive branch. I have not argued that the President is correct or incorrect in this case. I don’t know. If you give me the law and the facts then we can continue this discussion. Otherwise I will continue to argue that any President, who takes an oath to preserve and protect the Constitution, has an obligation not to enforce a law that the President believes, based on the current status of the law as reported to him by his attorneys, to be Unconstitutional. And I will continue to argue that attorney advisers of the President should not be prosecuted for rendering legitimate legal opinions based on the current status of unclear legal doctrines.
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p>Perhaps you are right about this particular situation. But I don’t know and you have completely failed to support the argument that you are making.
At what point does legal opinion cease to become ‘legitamate’ and become malpractice?
At what point does ‘delibrate’ malpractice provided in service of ‘legal cover’ for a criminal act become conspiracy?
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p>I’ve got to assume there are limits about what can be dispensed as legal ‘opinion’.
and you’re right that there must be some line that a lawyer can’t cross where his legal opinion is so unsupported that it could be actionable. But based on my understanding of the President’s power under article II, I really don’t think that line was even approached in this case. Seriously, these are difficult Constitutional issues and the area of law is not developed enough to say that the opinions have crossed the line to malpractice never mind crossed the line to criminal conspiracy.
… is probably muddy with regard to opinion of ‘unitary executive’. I do think, however, that there is a danger here that a strategy could be adopted by an organized group (institutional or otherwise) to poison the well by flooding the realm of ‘natural’ legal opinion in a deliberate attempt to move the ball. Of course, opinion moving the ball isn’t new or illegitimate. But there certainly exists the problem of moving this way through monetary means rather than the strength of the ideas in general.
Article VI states that:
So the President is required to be bound by the oath required by Art. II. How can the President be bound by his oath if he is not required to act in accordance with his oath? The President is not asserting any right to make his own laws, he is merely asserting the right to act in accordance with his Art II powers without being confined by Unconstitutional laws passed by the legislative branch.
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p>And, as David himself stated, the interpretation of the laws by the President’s advisers in this case have significantly more than merely proper grammar and spelling. As Davis put it, it has:
“Worthless”, Edgar? Man, I am really feelin’ the hate.
… respect for General George Washington.
Thanks for keeping this issue in the forefront.
if we were no longer living in a republic? We have certainly crossed many lines in the wrong direction, but not all of them.
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p>At what point do we say that the republic is not only in danger, but is a thing of the past? Would we even recognize that moment?
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p>More to the point, how do we repudiate the torture, the crackpot fascism, the unconscionable throttling of democracy under the guise of voter suppression, the systematic gutting of the rule of law?
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p>Is mere political failure sufficient? Is accountability at the polls enough? I don’t think it is. The tactics of the imperial presidency (and VP) worked. They have not been repudiated; there has been no accountability. Consequently they will be used again next time, whenever that is.
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p>Impeachment and removal from office would have repudiated torture as national policy. Prosecution and conviction might have the same effect, but at some cost to the agenda of the next administration. I do not see it happening.
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p>Here in the ambiguous middle ground I note there are examples of countries with strong democratic traditions that became prey to fierce totalitarianism–Chile for instance. Over time Chile drifted back to its republican roots.
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p>Perhaps that is the best we can hope for and perhaps it is enough.
and enforced by our several courts.
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p>Speaking of courts. Barack Hussein Obama has a REAL big problem in THIS court REAL soon:
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p>http://docs.justia.com/cases/f…
How long must we endure this?
http://www.comcast.net/article…
I think you’re misreading the document you’ve linked to — that is the plaintiff’s opposition to Obama’s and the DNC’s motion to dismiss, along with a proposed order drafted by the plaintiff — i.e., it’s the plaintiff saying what he wants the judge to do. You will note that the order is not signed by the judge. You will also note that the case’s docket sheet shows no indication of the judge having ruled, or even set a hearing date.
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p>Predicted ruling: case dismissed for lack of standing, just like every other case of this kind (McCain’s birth in the Panama Canal Zone, e.g.).