Jim

I applaud you Ecoli. I have had various points in my life when I've thought I believed. When I did believe, I still did not want the government teaching children about religion. I can't understand conservatives who think the government mucks up everything it touches but want the goverment teaching children about religion. It's completely inconsistent.

My initial post suggested that Bush didn't want the terrorists to know that we had closed this seam in intelligence. He wanted them to think we are less agile than we actually were. This is why he gave closed briefings to congress and why he is now saying that the leak did great damage. Let me ask you this hypotethetical: Assume that (i) a law is passed in 1935 making it a crime for the president to order surveilance of US citizens without a warrent, (ii) the law does not provide a 72 hour grace period or any equivalent of the FISA court, (iii) after Pearl Harbor, Congress passes a declaration of war and (iv) in 1944, the middle of the war, FDR learns that the Germans are worried that their communications are being deciphered and has launched a program to try to infiltrate the US to discover if this is true. We have developed a list of suspected German operatives, so FDR orders that all federal agencies who can monitor anyone in the US contacted by these suspected German agents. The order states that warrants are not required only where the suspected German agents are making contact with particular US citizens. Should FDR go to jail?

Uhh.... Patton didn't go over to Germany and lie directly to Germans. He used the press in making dishonest public statements during a time of war. FDR was helped by Pearl Harbor but he rightly wanted us to get into WWII despite his campaign promise to the contrary. Given that the first casualty of war is the truth, this off the cuff statement by Bush about court orders is petty in the extreme. I wouldn't have impeached Clinton primarily to have saved the Country the trauma. However, Bush has acted in what he perceives to be the best interests of the country, not to avoid personal liability in a sexual harassment lawsuit.

North Korea, Libya and Iran had not invaded a strategically important US ally, lost and then failed to honor an agreement to disclose their programs.

"Facing clear evidence of peril, we cannot wait for the final proof -- the smoking gun -- that could come in the form of a mushroom cloud." What is wrong with this statement? It merely states the obvious fact that intel is never perfect and being on the outside looking in, we will never have perfect, final proof and, many times, cannot afford to wait to act until we have that final proof. Had Saddam not invaded Kuwait, and lost, none of this would ever have happened. Guess he shouldn't have done that, eh?

I'll agree that NYT is on a par with Fox news.

Sorry, but I got the article from a subscription service. I completely agree that so much energy is needlessly expended in this kind of debate. I also think that those who think of Bush as some kind of Sith Lord have more in common with Rush Limbaugh and Bill O'Reilly than they do you and I.

I spent about 5 minutes on Lexis.com and skimmed a single lawreview article. This is not an issue I've researched. It may be that the legal research that predates the 2002 Order argued that the 1978 law was not applicable to this new war. Therefore, they might argue, we are in the second category described here where existing law is silent and Bush did run this buy Congress who remained inert, a few possible letters notwithstanding. Alternatively, the article seems to say that there are very narrow areas of Presidential power where the president can act contrary to existing law. To answer this issue you need to be a Constitutional scholar and spend about a week researching. I only hope to show that it is silly to go off half-cocked, as the mainstream media has done: A. O'Donnell, COMMENT: ILLUMINATION OR ELIMINATION OF THE "ZONE OF TWILIGHT"? CONGRESSIONAL ACQUIESCENCE AND PRESIDENTIAL AUTHORITY IN FOREIGN AFFAIRS, 51 U. Cin. L. Rev. 95 (1982). II. HISTORY OF THE FOREIGN AFFAIRS POWER A. The Constitution The Constitution provides sparse guidance as to allocation of the foreign affairs power between the President and Congress. The executive power is vested in the President: he is the Commander-in-Chief of the nation's military forces; he may make treaties and appoint ambassadors subject to the advice and consent of the Senate; and he receives ambassadors from other nations. 5 Congress, on the other hand, is [*96] given a general grant of power to "make all laws . . . necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 6 Congress is specifically granted the power to regulate foreign commerce, to establish rules concerning naturalization, to declare war, to raise, support, and regulate military forces, and to define and punish piracy and offenses against international law. 7 Clearly, both the President and Congress are granted authority touching on foreign affairs, but it is far less clear whose authority prevails in specific matters. From the earliest days of the Republic, presidents have inferred authority that goes well beyond explicit constitutional grants of power. 8 The Supreme Court has been reluctant to examine the President's implied powers vis-a-vis Congress, often characterizing the issues raised as "political questions" not suitable for judicial review. 9 Two cases, however, United States v. Curtiss-Wright Corp. 10 and Youngstown Sheet & Tube Co. v. Sawyer, 11 have framed the Court's approach to this problem. 12 B. Curtiss-Wright: The President as "Sole Organ" In United States v. Curtiss-Wright Corp. the Supreme Court intimated that the President's power in foreign affairs is broad and primary while Congress' is secondary. 13 The legal issue presented in the case was merely whether Congress could delegate to the President by statute its constitutional power to regulate foreign commerce. The Court held that the delegation was permissible, but went beyond this to describe at length a primacy of presidential power in foreign affairs. The Court asserted that participation by Congress in the exercise of the foreign affairs power is significantly limited. 14 The practical [*97] exigencies of international relations and diplomacy require that Congress accord the President much greater discretion and freedom from legislative restriction than would be tolerable in domestic affairs. 15 The President is the "sole organ of the nation" and thus possessed of "very delicate, plenary, and exclusive power" in the field of international relations. 16 The Curtiss-Wright Court suggested that the President has broad inherent powers in the foreign affairs area based not only on the Constitution but also on extra-constitutional powers arising from the international legal concept of state sovereignty. 17 Although the Court's commentary on presidential power was mostly dictum, 18 commentators have used the Curtiss-Wright opinion to support arguments in favor of vast assertions of presidential power in foreign affairs. 19 C. Youngstown: Congress as Lawmaker Sixteen years after Curtiss-Wright the Supreme Court emphasized the legislative authority granted to Congress by the Constitution in Youngstown Sheet & Tube Co. v. Sawyer. 20 President Truman had seized the nation's steel mills to avert a strike threatening the war effort in Korea. Unlike the situation in Curtiss-Wright, no statute authorized the President's action; he instead relied upon authority implied by the aggregate of constitutionally enumerated grants of presidential power. 21 The Court, invalidating Truman's action, suggested that the scope of the President's implied powers is narrow. 22 The "necessary and proper" clause gives Congress "exclusive" legislative power, while the President's duty faithfully to execute the laws [*98] bars him from lawmaking. 23 The Court argued that seizing the steel mills required a legislative enactment; without such law, the President was impermissibly exercising lawmaking power. 24 In sum, the Constitution gives Congress the exclusive authority to make laws, and the President cannot rely upon authority implied by the aggregate of his specific powers granted by the Constitution to poach upon lawmaking power. 25 Although the Youngstown majority opinion appeared to reject the concept of broad implied presidential power suggested in the Curtiss-Wright opinion, there were five concurrences in the six-man majority. Four of these indicated that the concept of implied presidential authority still has viability, although not in the Youngstown situation. 26 Justice Jackson's concurring opinion outlined an analytical scheme for assessing the validity of presidential actions in the face of congressional power. 27 Jackson discerned three possible categories. In the first, the President acts pursuant to an express or implied congressional grant of authority, and his authority is therefore at a maximum -- his action is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." 28 In the third category, the President's action is incompatible with the expressed or implied will of Congress, and thus his power is at a minimum. The President's action in the latter instance must rest on his exclusive power; the Court can uphold its validity only by determining that the Constitution disables Congress from acting upon the subject. 29 Jackson's second category includes those situations in which Congress has neither granted nor denied authority to the President. Within this "zone of twilight" Congress and the President have concurrent authority, or the distribution of authority is uncertain. 30 Congressional inertia, indifference or quiescence might enable, if not invite, presidential action based on independent presidential authority. 31 [*99] Jackson warned that any test of power in this category would be more likely to depend upon the imperatives of events than on abstract legal theories. ****

People really need to seriously get over the WMD issue. Saddam had them at one time, used them, and, had we failed to invade, would have reacquired them sometime in the next ten years. This is a man who had invaded a strategically important US ally and had attempted to assassinate a former US president. Think about that for a minute. Saddam tried to kill George Sr. What if he'd succeded? Can you imagine the US response? Yet this is a leader who was willing to take that risk. Saddam was capable of SERIOUS miscalculations and presented a unique case. I don't care if he secretly buried or destroyed the WMDs. Rather than starve the country with sanctions, he needed to go and all of us are safer for him being gone. Bushes problem is that many people can't compare the reality of more than 2,000 dead with what the world would look like if Kerry had his way and Saddam was still in Kuwait.

The NYTs was idiotic in timing the NSA story to cloud the election in Iraq. They got what they wanted but were transparant in their motivations. This is an order that was issued in 2002 and the four presidential speeches were obviously designed to culminate on election day. I don't think it can be honestly argued that they didn't have an agenda. I don't see this as sinister - everyone has an agenda. I just prefer people who are honest about it.

The Republicans control the congress and I think the democrats are too smart to start something that (i) has incredibly thin basis and (ii) they would not control. The event with the most traction is the NSA Order primarily because it is an Executive v. Legislative issue on which some Republican legislators will disagree. Even so, this issue is very thin. The president does have implied powers as the Commander in Chief. I am no expert on Constitutional law but I suspect the worst a Court would do is invalidate the order.