presidents, war, and the Nixonian moment

Mon Dec 19 15:46:30 PST 2005

Those members of Congress told about this got it because of their security 
clearances which they would violate by talking to anyone outside those 
with same level security levels.

I didn't get to hear the entire press conference this morning but I was 
shocked that the President had the audacity to excoriate the so-called 
leaker when he continues to have Karl Rove on board, despite his known 
role leaking classified information. I did not hear anyone connect the 
dots between the two leaks.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax

marty.lederman at comcast.net 
Sent by: conlawprof-bounces at lists.ucla.edu
12/19/2005 06:34 PM

To
"Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>, 
Conlawprof at lists.ucla.edu
cc

Subject
RE: presidents, war, and the Nixonian moment

Or perhaps the consultation was fairly toothless because the Senators were 
not provided the legal justification for the program, and were forbidden 
from sharing the information with their staff and with attorneys who would 
know something about the law.  See  
http://talkingpointsmemo.com/docs/rock-cheney1.html

-------------- Original message -------------- 
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 
I am not convinced that the AUMF and/or the President's inherent powers 
justify an end run around FISA. Nevertheless, it was not a completely 
secret program, nor was Congress left without remedy. It seems that 
Congressional leaders of both parties were informed about the surveillance 
program. If any of them had wanted to stop the program, they could have 
taken action, including revealing the program on the floor of the House or 
Senate and seeking to prohibit funding of it. (Even the threat of such 
action might have been enough to stop the program.) Apparently they did 
not want to stop it or thought they would pay too high a political price 
if they tried to do so.

A prior post (sorry, I've forgotten by whom) stated that the existence of 
the program was brought to the attention of the FISA court as a result of 
a desire by the Justice Dept. to use information from the program in one 
or more warrant applications. Presumably such an application for a warrant 
would present an Article III case or controversy which would then have 
allowed the court to make a criminal referral, if the court were convinced 
that the surveillance constituted a criminal violation. Thus it seems that 
neither the legislative branch (at least the leaders of the legislative 
branch) nor the judicial branch (at least the head of the FISA court) 
chose to try to stop the program.

Perhaps someone will know whether one of the Congressional intelligence 
committees could have convened secret hearings to investigate the 
surveillance program and to provide some oversight of it.

Note: the AUMF is available at 
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:sj23enr.txt.pdf
. 

Mark S. Scarberry
Pepperdine University School of Law

-----Original Message-----
From: Stephen M. Griffin [mailto:sgriffin at law.tulane.edu] 
Sent: Monday, December 19, 2005 1:28 PM
To: Sanford Levinson
Cc: Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and the Nixonian moment

Re the discussion of presidents and wrongdoing during wartime --
>From a constitutional point of view, this is the worst thing Bush has 
done.  Unlike torture, where the chain of responsibility was clouded, here 
Bush is front and center as the responsible party.  It's in writing...and 
it's secret!  Shades of Nixon.

The rationale is extremely weak.  There is no standard argument that 
somehow AUMF implicitly amended FISA, a very specific statute aimed at a 
very specific target.  And there is no caselaw in support of the commander 
in chief power allowing the president to override an otherwise valid law. 
It is already apparent that the president's rationale is literal nonsense 
to members of Congress from both parties because it denies Congress's 
power to formally check executive discretion via statute.

The secrecy of the action, combined with the amazing breadth of the 
claimed authority recalls not Lincoln or Truman, but clearly Nixon.  We 
are back with (quoting roughly) "if the President does it, it's 
constitutional."
I also seem to remember: "During my second term, I threw down the gauntlet 
and challenged the Congress to epic battle..."

Sandy -- remember "The Specious Morality of the Law?"  I do!

Steve Griffin
Tulane Law School
sgriffin at law.tulane.edu

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Bob Sheridan
Sent: Mon 12/19/2005 2:50 PM
To: Sanford Levinson
Cc: Conlawprof at lists.ucla.edu
Subject: Re: presidents, war, and *statutes*

So does this make GWB an "activist" president?

I watched him say on MSNBC last night with Brian Williams that the U.S.
Constitution is "a living document," just like the new one in Iraq, or
vice versa, which should have dropped Scalia out of his easy chair.

rs
sfls

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as 
private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly or 
wrongly) forward the messages to others.
----- Message from "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> on 
Mon, 19 Dec 2005 22:10:29 +0000 -----
To:
Conlawprof at lists.ucla.edu
Subject:
RE: presidents, war, and the Nixonian moment
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as 
private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly or 
wrongly) forward the messages to 
others._______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as 
private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly or 
wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051219/5b3d3541/attachment.htm