The Discerning Texan
-- Edmund Burke
Monday, July 23, 2007
Hypocrites on Parade
Without secrecy, the government can't function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents--even if their poll ratings are low.
Presidents Washington, Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts, Truman, Eisenhower (whose administration invented the phrase "executive privilege") Kennedy and Reagan, among others, have kept executive deliberations secret from congressional inquiries, usually over matters of diplomacy, national security and law enforcement. Courts have recognized that discussions among their senior advisors, not just meetings when presidents are in the room, also receive protection. So why aren't Republicans fighting to defend executive privilege now?
Those who made their bones investigating the Clinton administration's misdeeds might squirm over Mr. Bush's assertion of privilege today. But then, Democrats who supported President Bill Clinton's assertions of executive privilege in the '90s are being hypocritical by jumping all over Mr. Bush now, too.
The issues at stake are light years from those of the Clinton years. Mr. Clinton was fighting claims of sexual harassment brought by Arkansas state employee Paula Jones, an independent counsel corruption investigation into Whitewater, and his extracurricular relationship with White House intern Monica Lewinsky. Mr. Clinton asserted executive secrecy to protect his personal affairs. This is legally important because the federal courts of appeals have held that the privilege only applies to communications between the president and his advisers on "official government matters."
Mr. Clinton's personal recklessness undermined executive privilege for all future presidents. At worst, today's flap might ultimately show some lax management, or partisanship, but the hiring or firing of U.S. attorneys for any or no reason is squarely within a president's constitutional prerogative. Mr. Clinton's groundless claims of privilege don't invalidate assertions of executive privilege for all time. Pundits who imply otherwise are just blowing partisan smoke.
Some Senate Democrats say Mr. Bush is just "stonewalling" and insinuate that he must be trying to hide something, as Judiciary Committee Chairman Patrick Leahy (D., Vt.) has darkly intoned. But as he well knows, executive privilege traces its lineage to George Washington. In 1796, the House of Representatives demanded all his papers related to the controversial Jay Treaty with Great Britain. Washington refused, saying that the Constitution barred the House from the making of treaties. Firing U.S. attorneys and any other executive officers, including those requiring Senate approval, rests beyond the constitutional powers of Congress, and totally within those of the presidency. This has been true since the first cabinet departments were established in 1789.The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved.
Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.
Read the whole thing here.
The President would be well served to let this particular battle go all the way to the Supreme Court: it is obvious which way the decision would go and it would be a huge "in your face" to the screaming hyenas in Congress. Stick to your guns Mr. President.
Labels: Congress, Executive Branch, Executive Privalege, US Constitution, US Senate
Friday, July 13, 2007
About those "Investigations"
Last night on Special Report with Brit Hume, two hearings in particular came up: the hearings regarding the President's Constitutional authority to hire and fire whichever US Attorneys he damn well pleases, for polititical reasons, for personal reasons, or even if he doesn't like their haircuts; and, the President's Constitutional authority to pardon or commute the sentence of anyone he wishes to. This is not up for discussion: the Constitution grants the President this power, period. So why are we holding hearings discussing it?? Congress has begun spending millions of your tax dollars to hold purely partisan hearings about topics it has no Constitutional authority to "oversee" (emphasis mine):
HUME: There was, of course, also a hearing in the House today on the Scooter Libby sentence commutation, in which the likes of Joe Wilson, whose role in this is well known, testified. Did either of these hearings go anywhere?
KONDRAKE, EXECUTIVE EDITOR, ROLL CALL: No. And, you know, the public looks at Washington and sees nothing getting done. No immigration bill, none of the other problems being solved. But what it does see is more partisan harangues, and this was more partisan haranguing. The Democrats are using their subpoena power to try and their power to hold hearings to try to treat the Bush administration like a pinata.
And, so--and Sara Taylor was the one who got the hits today, and she didn't reveal anything. And they are not going to get anywhere unless the courts say that Executive Privilege does not apply and that these people--
HUME: Is there anything to be gotten?
KONDRAKE: Well, that, we don't know. I mean, they have discovered nothing specifically nefarious that these firings had anything to do with, except, maybe, the failure to prosecute voter fraud cases.
But we done even know--
HUME: The firings were about the failure?
KONDRAKE: Yes.
BILL SAMMON, SENIOR WHITE HOUSE CORRESPONDENT, WASHINGTON EXAMINER: The firings, themselves, are perfectly proper and legal, even if they were about the failure of some political--even if Bush said. Look, I don't like these people for political reasons, I'm going to fire them. There is nothing illegal about that.
There is also nothing illegal about him commuting the sentence of Scooter Libby. So both of these, the problem with these two sets of hearings is that there is no illegality.
These are sort of like fishing expeditions, and I agree with Mort in that it gives the public this impression--and, by the way, it is why the public is holding Congress in the lowest esteem in history, because they are not doing anything except investigating. ...
It is stunts like this which makes my internal conditions so ripe for me to go off on a rant like I did last night. This is beyond partisanship; this is wasting OUR tax dollars strictly for the partisan purposes of one political party. The Democrats are playing with our money for their little game of gotcha.
The sooner we remove these cretins from office, the better.
Labels: Democrat Sabotage, Executive Branch, President Bush, Unbridled Partisanship, US Constitution
Friday, June 22, 2007
"The Stalinists are at the gate..."
UPDATE: The excerpt linked above is an excellent start, but Levin was on fire for his entire show last night, which got into questions of censorship and the Immigration bill. Click here to listen to the whole thing. Very entertaining
Labels: Hearts and Minds, Media Bias, Media War, Nutroots, The Left, US Constitution
Thursday, June 14, 2007
Fourth Circuit Treason
Today the Wall Street Journal weighed in on the ruling, and they were not pleased:
On Monday, the Fourth Circuit Court of Appeals ruled that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The press corps is reporting--no, shouting, cheering, doing somersaults--that this is further proof that Bush Administration detainee policies are doomed to legal oblivion.
Well, here's a wager: This decision is the outlier and will be overturned on appeal, while most of the Administration's legal antiterror architecture will survive past January 20, 2009. Any takers?
There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.
For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions.
By such fancy footwork, the judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O'Hare airport with plans to detonate a dirty bomb.
Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.
There are few defined battlefields in the war on terror. So for new homegrown terrorist recruits, the Fourth Circuit decision is great news: If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.
A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him--sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?
This is very close to Judicial treason; and I do not use that term lightly; this decision by Activist Democrat appointees--is something I would might expected from the 9th Circuit, who are overturned 75+ percent of the time--but it appears that there is a "new sherriff in town". God help us.
Read the whole thing here.
Labels: Judicial, Judicial Activism, Supreme Court, Travesty of Justice, US Constitution
