"...an exorbitant and extreme theory of executive power that ended up weakening the presidency."

[BurtWorm]

That would be the insane theory the Bushists have been relentlessly pushing since November of 2000.

http://www.nytimes.com/2007/01/18/washington/18assess.html


White House Retreats Under Pressure

By SCOTT SHANE
Published: January 18, 2007

WASHINGTON, Jan. 17 — The Bush administration’s abrupt abandonment on Wednesday of its program to eavesdrop inside the United States without court approval is the latest in a series of concessions to Congress, the courts and public opinion that have dismantled major elements of its strategy to counter the terrorist threat.

In the aftermath of the 2001 attacks, President Bush asserted sweeping powers to conduct the hunt for operatives of Al Qaeda, the detention of suspects and their interrogation to uncover the next plot. But facing no new attack to justify emergency measures, as well as a series of losses in the courts and finally the Democratic sweep of the November election, Mr. Bush has had to retreat across the board.

“I think there’s no question that both politically and legally, the president has been chastened,” said Douglas W. Kmiec, professor of constitutional law at Pepperdine University and generally a supporter of the administration’s interpretation of executive power.

Harold Hongju Koh, the dean of Yale Law School and a critic of the administration’s legal theories, said the president’s strategy might have provoked so strong a judicial and Congressional rebuff that it would ultimately accomplish the opposite of his goal. “I think historians will see it as an exorbitant and extreme theory of executive power that ended up weakening the presidency,” Mr. Koh said.

That would be an extraordinary outcome, and one that is far from assured. In some areas, the administration has preserved its freedom to act, notably in persuading Congress last fall to deny prisoners held in Guantánamo Bay, Cuba, the right to challenge their detention in American courts. The full details of the new approach to the domestic eavesdropping program have not been publicly disclosed.

Mr. Bush’s legal strategy has been directed not only by the practical need to prevent attacks but also by the belief, expressed most fervently by Vice President Dick Cheney, that presidential powers, and the war-making power in particular, were excessively curbed in reaction to the Vietnam War and the Watergate scandal....

[magellan]

1. I have only one question

Even though he appears to have returned to following the law (and I'm not at all certain he has), can Bush** still be charged with breaking the law during the time he did this without FISA oversight?

[BurtWorm]

3. You mean can he be impeached?

If Clinton could be impeached for getting a blow job, Bush can get impeached for all the shit he's pulled. It just takes the will of Congress.

[magellan]

5. Yes, I suppose I am

Since that's how this would have to be dealt with. It just sounds as if there's a collective sigh of relief that he seems to be back on the right side of the law with this, and there's no will to pursue it further. And that doesn't sit well with me.

[BurtWorm]

6. I think he has given investigators too much to work with

to have any one step away from his past trangressions make him less vulnerable. As I say, it's really only a question of Congress's will.

[magellan]

7. And that's what worries me!

That it's a question of Congress's will. I'm afraid I have little patience for letting the fate of such extravagant lawbreakers as Bush** rest on what Congress believes it can achieve weighed against political winds; there should be no reservation about going after him. IOW I believe it's not a matter of will, but of constitutional law.

However, I'm hopeful that we're seeing that will coalesce across party lines now.

[malaise]

11. More importantly

Bushco has admitted that they were breaking the law for five fugging years. IMPEACH

[BlooInBloo]

14. He hasn't....

http://glenngreenwald.blogspot.com/

His last few posts.

[magellan]

16. Thank you! This answers it perfectly:

"Having said that, I have to say that I find the celebratory tone that I have seen here and there to be quite odd and unwarranted. There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law -- i.e., committing felonies -- for the past five years in how they have been eavesdropping on us.

"I know that everyone except for the shrill, partisan hysterics has all implicitly agreed that it's impolite and overheated to talk about the criminality involved here -- "hey, whatever the President did, he had a good faith basis for doing (after all, there are lawyers who say so!) and, anyway, he just did it to protect us" -- but the President has been breaking the criminal law on purpose and systematically because he wanted to.

"The fact that he might have decided he should stop -- now that his loyal servants no longer control the Congress, a federal judge already ruled he violated the Constitution and the criminal law, an appellate court was about to hold arguments about that decision, and there might actually be consequences now springing from his behavior -- does not excuse his lawbreaking in the slightest and must not be allowed to shield him or anyone else from accountability."

[Kagemusha]

2. This is almost funny.

In reality, the Bush admin got some sort of blanket approval of its modified Terrorist Surveillance Program from a single judge that doesn't seem at all consistent with how the FISA law was written. However, in politics, this is seen as a spectacular retreat and defeat for the administration, precisely because we aren't privy to the secret details of the new understanding.

Perhaps the damage from the mere political perception will have tangible results and not just cover up what I can only presume is a non-defeat, non-retreat thanks to a sympathetic judge.

[porphyrian]

4. I'll kick that. - n/t

[DeepModem Mom]

8. K&R

[mmonk]

9. It's hard for me to feel completely positive for one reason.

This constitutional violation and many many others are not generally widely known as being the assaults on the freedoms of all Americans as they have been. Without that being general knowledge, we'll always be just a tyrant away from dictatorship. That doesn't make me confident in this country or its people or my sons' futures if it goes unaddressed (and I consider largely unknown and not well covered by the general media hearings on C-Span as being unaddressed).

[greenman3610]

10. I've been out of the loop for a week. any thread to update me on this?

[Faryn Balyncd]

12. Gonzales: "Judges Are Unfit To Question Bush-They Should "Defer To President's Will"

This battle is not going away until these "unitary executive" monarchists are no longer in the White House. Attorney General Gonzales this week made clear, in a speech at AEI, that the #1 criteria for judicial appointments for Bush is whether the judge believes that the judiciary should defer to the president on matters deemed (by the president) to effect "national security."

It is clear that, if there is a Supreme Court vacancy before 2009, that our nation will be better off leaving that seat vacant until after the 2008 elections.

It is inconceivable that Bush would ever nominate a judge who does not subscribe to an un-American "unitary executive" theory that threatens the foundations of our democracy.

Gonzales: Judges Are Unfit To Question Bush-They Should "Defer To President's Will"

WASHINGTON - Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who “apply an activist philosophy that stretches the law to suit policy preferences.”

....................

The text of the speech, scheduled for delivery at the American Enterprise Institute, was obtained Tuesday by The Associated Press. It outlines, in part, what qualities the Bush administration looks for when selecting candidates for the federal bench.............“We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments,” Gonzales says in the prepared speech. “That, for example, a judge will never be in the best position to know what is in the national security interests of our country.”

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x3137928





Bush must not be allowed to continue packing the judiciary with un-American ideologues who subscribe to radical, novel, and unprecedented neo-monarchist theories.



Bush judicial nominees must be STOPPED and put on hold until we have a president who believes in our constitution.

[Neecy]

13. what BS....

Mr. Bush’s legal strategy has been directed not only by the practical need to prevent attacks

This is the kind of misinformation that causes people to think it's okay to give up our constitutional rights if it 'protects' us. I'm sick of the media pushing this line...'practical' my butt.

[lumberjack_jeff]

15. Not so fast

It hasn't been weakened yet.

http://www.mercurynews.com/mld/mercurynews/news/politics/16487668.htm

Some Justice officials also said that obtaining approval from the secret court will enable authorities to more easily use the information they obtain in criminal prosecutions.

But many details of the new approach remained unclear Wednesday because administration officials declined to describe specifically how the program will work.

Details still sketchy

Officials declined to disclose, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders covering a multitude of cases. Authorities also declined to say how many court orders are involved or to identify which judge on the surveillance court had issued them.

One official familiar with the discussions characterized the change as ``programmatic,'' rather than based on individual warrants targeting specific cases. This official said the judge who issued the Jan. 10 order was not U.S. District Judge Colleen Kollar-Kotelly, the FISA panel's chief judge, but rather one of that court's rotating members who was assigned to hear cases that week.

They've conceded nothing. They've sought (and obtained) a blanket warrant to spy on us as they see fit. In other words, the judge agrees that there's probable cause for the government to spy on everyone.