Text 16621, 260 rader
Skriven 2005-12-17 11:57:28 av BOB SAKOWSKI (1:123/140)
Ärende: A decision for true patriots
====================================
As good an examination of Preznit AbovetheLaw's disrespect for the law AND
the constitution as one could expect.

http://glenngreenwald.blogspot.com/2005/12/bushs-unchecked-executive-power-v.html



Bush's unchecked Executive power v. the Founding principles of the U.S.

Underlying all of the excesses and abuses of executive power claimed by the
Bush Administration is a theory of absolute, unchecked power vested in the
Presidency which literally could not be any more at odds with the central,
founding principles of this country.

As this morning’s New York Times analysis put it in describing the
rationale behind the Adminstration's violations of Foreign Intelligence
Security Act, pursuant to which it has been secretly spying on the
commuincations of American citizens without judicial warrants:

    A single, fiercely debated legal principle lies behind nearly every
major initiative in the Bush administration's war on terror, scholars say:
the sweeping assertion of the powers of the presidency.

    From the government's detention of Americans as "enemy combatants" to
the just-disclosed eavesdropping in the United States without court
warrants, the administration has relied on an unusually expansive
interpretation of the president's authority.


As the Times reports, Bush's claim to absolute executive power has its
origins principally in one document:


    a Sept. 25, 2001, memorandum [by the Justice Department’s John Yoo]
that said no statute passed by Congress "can place any limits on the
president's determinations as to any terrorist threat, the amount of
military force to be used in response, or the method, timing and nature of
the response."


The notion that one of the three branches of our Government can claim power
unchecked by the other two branches is precisely what the Founders sought,
first and foremost, to preclude. And the fear that a U.S. President would
attempt to seize power unchecked by the law or by the other branches –
i.e., that the Executive would seize the powers of the British King – was
the driving force behind the clear and numerous constitutional limitations
placed on Executive power. It is these very limitations which the Bush
Administration is claiming that it has the power to disregard because the
need for enhanced national security in time of war vests the President with
unchecked power.

But that theory of the Executive unconstrained by law is completely
repulsive to the founding principles of the country, as well as to the
promises made by the Founders in order to extract consent from a
monarchy-fearing public to the creation of executive power vested in a
single individual. The notion that all of that can be just whimsically
tossed aside whenever the nation experiences external threats is as
contrary to the country’s founding principles as it is dangerous.

It cannot be said that the Founders were unaware of the potential for
national emergencies and external threats. They engaged in a war with the
British which was at least as much of an existential threat to the Republic
as those posed by 9/11 and related threats of Islamic extremism.
Notwithstanding those threats, the Founders, in creating an Executive
branch, sought first and foremost to ensure that the President could never
wield unchecked powers which would exist above and separate from
Congressionally enacted laws.

Among recent Republican Administrations, this theory of the unchecked
President is not new. Digby recalls Richard Nixon's endorsement of it, and
the theory came to life in the Iran-Contra scandal, where the Reagan
Administration unilaterally deemed it necessary to U.S. national security
to arm the Nicaraguan contras and then asserted for itself the power to
circumvent the law enacted by the Congress which prohibited exactly that.

But the situation we have now is far more egregious, and far more
dangerous, because the Administration is not even bothering to pretend now
(as the Reagan Administration at least did) that the Executive acts
undertaken really did adhere to Congressional intent, or alternatively, to
the extent that such acts violated Congressional mandates, the acts were
simply the by-product of overzealous and rogue officials who broke the law
without the knowledge or approval of President Reagan.

The Bush Administration’s position now is almost the opposite of that
posture, in that the Administration is expressly claiming that the
President does have the right to violate laws of Congress because his
executive power is absolute and thus cannot be restricted by anything. And
rather than applying this theory of unchecked executive power to a single
case (as the Reagan Administration did in Iran-contra), the Bush
Administration has arrogated unto itself this monarchical power as a
general proposition, applicable to each and every issue which can be said
to relate, however generally, to this undeclared "war" against terrorism.

This view of the Presidency – which now exists not just in odious theory
but in real, live, breathing form vested in George Bush – is precisely what
the monarchy-fearing Founders insisted should never occur and, with the
enactment of the U.S. Constitution, would never occur.

This absolute power claimed and enthusiastically exercised by George Bush
violates not just specific Constitutional limitations, but the core
principles of the Constitution: that we are a nation of laws not men; that
each branch shall be "co-equal" to the others and checked and limited by
the other two; and that the people shall retain ultimate power by vesting
in them the right to enact supreme laws through the Congress which shall
bind all other citizens, including the President.

That the Bush Administration’s claim to unchecked and supra-legal Executive
power is squarely inconsistent with basic constitutional principles is
conclusively demonstrated by James Madison’s Federalist No. 48, which is
devoted to the principle that liberty cannot be maintained unless each
branch remains accountable and subordinate to the others:


    It was shown in the last paper that the political apothegm there
examined does not require that the legislative, executive, and judiciary
departments should be wholly unconnected with each other. I shall
undertake, in the next place, to show that unless these departments be so
far connected and blended as to give to each a constitutional control over
the others, the degree of separation which the maxim requires, as essential
to a free government, can never in practice be duly maintained.



Similarly, Madison, in Federalist No. 51, defined the central objective for
avoiding tyranny as ensuring that no branch be able to claim for itself
powers which are absolute and unchecked by the other branches:


    What expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several departments, as
laid down in the Constitution? The only answer that can be given is, that
as all these exterior provisions are found to be inadequate, the defect
must be supplied, by so contriving the interior structure of the government
as that its several constituent parts may, by their mutual relations, be
the means of keeping each other in their proper places. . . .


In particular, Madison emphasized in Federalist 51 that liberty could be
preserved only if the laws enacted by the people through the Congress were
supreme and universally binding:


    But it is not possible to give to each department an equal power of
self-defense. In republican government, the legislative authority
necessarily predominates.


Hamilton made the same point in Federalist No. 73. where he emphasized:


    "[t]he superior weight and influence of the legislative body in a free
government, and the hazard to the Executive in a trial of strength with
that body, . . . " 


To the Founders, the defining characteristics of the tyrannical British
King was that he possessed precisely those powers which the Constitution
prohibits but which the Bush Administration is now claiming it can
exercise. From Federalist 70:


    In England, the king is a perpetual magistrate; and it is a maxim which
has obtained for the sake of the public peace, that he is unaccountable for
his administration, and his person sacred. 


Based on the fear of such unchecked executive power, Federalist 69
emphasized that unlike the British King, who did possess the absolute power
to nullify duly enacted laws , the sole power possessed by the President to
negate a law enacted by the Congress -- including with regard to matters of
national security and war -- is the President’s qualified (i.e.,
override-able) veto power:


    Hence it appears that, except as to the concurrent authority of the
President in the article of treaties, it would be difficult to determine
whether that magistrate would, in the aggregate, possess more or less power
than the Governor of New York. And it appears yet more unequivocally, that
there is no pretense for the parallel which has been attempted between him
and the king of Great Britain. . . .

    The one [the American President] would have a qualified negative upon
the acts of the legislative body; the other [the British King] has an
absolute negative. The one would have a right to command the military and
naval forces of the nation; the other, in addition to this right, possesses
that of declaring war, and of raising and regulating fleets and armies by
his own authority.


An extremely potent demonstration that the Bush Administration’s claim to
unchecked Executive Power is fundamentally inconsistent with the most basic
constitutional safeguards comes from one of the unlikeliest corners –
Antonin Scalia’s dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004):


    The proposition that the Executive lacks indefinite wartime detention
authority over citizens is consistent with the Founders' general mistrust
of military power permanently at the Executive's disposal. In the Founders'
view, the "blessings of liberty" were threatened by "those military
establishments which must gradually poison its very fountain." The
Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the
Federalist were devoted in whole or part to allaying fears of oppression
from the proposed Constitution's authorization of standing armies in
peacetime.

    Many safeguards in the Constitution reflect these concerns. Congress's
authority "[t]o raise and support Armies" was hedged with the proviso that
"no Appropriation of Money to that Use shall be for a longer Term than two
Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of
military forces, all authorization for their maintenance and all explicit
authorization for their use is placed in the control of Congress under
Article I, rather than the President under Article II.

    As Hamilton explained, the President's military authority would be
"much inferior" to that of the British King:

    "It would amount to nothing more than the supreme command and direction
of the military and naval forces, as first general and admiral of the
confederacy: while that of the British king extends to the declaring of
war, and to the raising and regulating of fleets and armies; all which, by
the constitution under consideration, would appertain to the legislature."
The Federalist No. 69, p. 357.

    A view of the Constitution that gives the Executive authority to use
military force rather than the force of law against citizens on American
soil flies in the face of the mistrust that engendered these provisions.


Both the Bush Administration’s theory of its own unchecked power and its
indiscriminate and aggressive use of that power to violate Congressional
law contradicts every constitutional principle created to ensure that we do
not live under unchecked Executive tyranny. If the President is allowed to
get away with secretly decreeing that he can violate the law and then doing
exactly that, then there really are no remaining checks on Executive power
-- and we have, without hyperbole, arrived at the very definition of
tyranny.

The country has, more or less with a quiet complacency, stood by while this
Administration imprisoned American citizens with no due process, while the
Administration sanctioned torture and then used it to extract "evidence" to
justify those detentions, and while the Administration exploited the fear
of terrorist acts to bestow onto itself unprecedented powers.

If the naked assertion of absolute power by the Bush Administration -- and
the use of that power to eavesdrop on American citizens without any
judicial review -- does not finally prompt the public regardless of
partisan allegiance to take a stand against this undiluted claim to real
tyrannical power, then it is impossible to imagine what would ever prompt
such a stand.

---

I fully expect the unamerican slugs in here, the 5-H Bush Bootlicker
Brigade comes to mind, to swallow hard and get on bended knee for the
cowardly bastard.  Wait, maybe the sequence should be, get on bended knee
and THEN swallow hard.

The whole country is wearing the blue dress now.

 * Origin: Try Our Web Based QWK: DOCSPLACE.ORG (1:123/140)