Mr. White House Counsel, meet the Constitution

SFGate.com ^ | September 10, 2002 | David R. Henderson

[Boonie Rat]

I teach at the Naval Postgraduate School in Monterey, meaning that I instruct young military officers who are generally smart, hard working and curious.

On Aug. 27, I realized that I might well have one of the best jobs in America. That afternoon, the school's guest speaker was President Bush's White House counsel, Alberto Gonzalez, widely believed to be on the short list for the next Supreme Court appointment. What happened spoke volumes, not just about Gonzalez and his likely positions on the Constitution, but also about the students at the Naval Postgraduate School.

[Viva Le Dissention]

Who are you saying is a non attorney in the 20th Century?

[ChuckHam]

You mean this part?

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

I don't claim to be a constitutional expert and made sure I said it was my opinion that the President didn't need declaration of war to respond to an attack on our country. The executive branch (President) is the commander in chief and therefore has discretionary powers as such.

[mrsmith]

I'm sure you can see the weakness of your logic about the Gonzales quote.

Dirtboy I truly don't think that your problem is with the Habes Corpus aspect of the Padilla case.
He has exercised his Constitutional right to petition for a writ of Habeas Corpus and the court is giving it thorough consideration.

Your concern IMHO is with the use of military force (detention) against a citizen on US soil (I assume you have no problem with someone captured on a battlefield, like Hamdi, being held as a POW.)
Although there is ample precedent for doing so, and it is not prohibited by the Constitution, I agree that it is a dangerous thing and would not be surprised or disappointed if the courts held that such a large amount of evidence must be presented for it as to make it impracticeable.

[billbears]

I've read it and this is my response from another thread

Right after 9/11 Congress passes a resolution that is so openended, X42's foray into Somalia looks like a walk in the park. We're apparently going to have a roving band of soldiers going anywhere and everywhere they feel there is a terrorist until the 'War on Terror' is over (God help us if it's anything like the general government's 'War on DrugsIlliteracyPovertyAnybodywedisagreewithdomestically' we'll NEVER see the end of it). I'm sure no nation within the world will have a problem hosting the United States Army rooting around in their domestic affairs. And if they do, we'll just call them terrorists and overthrow their nation as well.

[mrsmith]

"A [VERY selective] tidbit..."

The administration summarized their position here:
"To the extent that the courts conclude that judicial review may be had of an executive determination during a war that an individual is an enemy combatant, such review is limited to confirming based on some evidence the existence of a factual basis supporting the determination..."

People can read the response for themselves.

[hflynn]

Open ended?

"the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

It seems exquisitely specific to me.

[dirtboy]

I'm sure you can see the weakness of your logic about the Gonzales quote.

Hardly. Gonzales himself made a tacit admission that the Bush Administration was making a de facto suspension of habeas corpus against the two men labelled as enemy combatants. You can call it what you want, but it's fairly clear that the Bush Administration is seeking the moral equivalent of suspension of habeas corpus for enemy combatants - and it will be interesting to see what happens if the court demands that one or the other be subject to the normal due process granted defendants in this country.

Dirtboy I truly don't think that your problem is with the Habes Corpus aspect of the Padilla case. He has exercised his Constitutional right to petition for a writ of Habeas Corpus and the court is giving it thorough consideration. Your concern IMHO is with the use of military force (detention) against a citizen on US soil (I assume you have no problem with someone captured on a battlefield, like Hamdi, being held as a POW.)

Sorry, I do not have a problem with someone who has been demonstrated to be an enemy agent to be tried through military tribunal. However, I do not think it is in the best interests of this country for the Justice Department to unilaterially declare these powers without Congressional approval and serious judicial review. I do not think the Bush Administration will abuse these powers significantly - however, I shudder at this precedent being handed to President Hillary Clinton if she ever were elected.

[billbears]

Well let's see at last count there were 60 nations that either harbored terrorists or supported them according to our national government. And the list is growing daily. Are you suggesting the US Army take on a full 1/3 of the world by itself? I'm sure that'll be popular

And what's the objective? Stamping out terrorism? According to who? What's the standard going to be? Until it's over?

[dirtboy]

Now -- the political reality is that the President will go to Congress, seek, and receive authorization to mount a new assualt. He will do so not because o any Constitutional or legal prerequisite. He will do it because he recognizes the political need to have the debate, to inform the people, and to demonstrate why hostilities must continue. Of course, I am sure that, as a lawyer, I simply don't know what the hell I am talking about.

IMO the Bush Admin can demonstrate the legality of attacking Iraq without Congressional approval. So this really becomes a question of what Bush should do instead of what he can do.

[lewislynn]

Oh, all right. Why don't you go find me a layman that can explain to me the technical differences between the Sherman Act and the Clayton Act and how each one of those acts apply to the Microsoft case--or better yet, how to determine whether the Hersey-Nestle merger will be allowed to go through in the United States under anti-trust law.

Oh, all right. Go downtown, round up 10 lawyers at random that can not only answer your questions but have 10 consistent answers as well....Or would they do what anyone else would/could do, go to the law library and do the research?

[boris]

"This is a wonderful article. I am a lawyer. We, as lawyers are all well grounded in the Constitution."

It's a shame that most of you spend your waking hours looking for ways to destroy it, pervert its language, distort its meaning.

Mr. Gonzales learned his craft well.

--Boris

[mrsmith]

"unilaterially declare these powers without Congressional approval"
The administration has not unilaterly claimed power to detain citizens as combatants in lieu of criminal charges. The administration only claims the authority to militarily detain Padilla and Hamdi from Congress's passage of Public Law 107-40 (the authorization of force) authorizing the president to use military force against members and helpers of the group that hit NY and the pentagon. I've criticized that authorization as being too broad- but it is the law that congress passed. It makes no exception for citizenship or location.

"Tacit admision" and "morally equivalent": that's not good logic- that's reaching for what you want to believe.

[hflynn]

And what's the objective? Stamping out terrorism?

Congress defined the objective

- "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

According to who? What's the standard going to be? Until it's over?

Congress defined the who, the standard is left to the President's discretion and the duration is the future.

I'm very glad that Congress was able to allay all your concerns in a single resolution. Often Congressional resolutions are not as clear, precise and so all encompassing.

[billbears]

the standard is left to the President's discretion and the duration is the future.

No it's not. It's quite sickening. Unless you're planning for Bush to be POTUS for life, expect the definition of 'terrorist' to change. With that worthless resolution we'll be at war for years

[sheltonmac]

"...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons HE DETERMINES planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 200..."

What criteria will the president use to determine who's responsible? How credible does the evidence have to be? If Iraq is only one-third of a terrorist "Axis of Evil," what about North Korea and Iran? Will those nations be invaded next?

"It seems exquisitely specific to me."

Yeah, specifically open-ended. This resolution would apply to any future president, not just Bush. The president is already expanding his "authority" by planning a pre-emptive strike against Iraq, even though no 9/11 connection to Hussein has been made. Bush has simply determined that Iraq poses a potential threat to the U.S.

This raises another issue. If Iraq is such a threat, why can't Congress just declare war? What is so wrong with that? My suspicion is that an official declaration of war limits the conflict to be resolved when one side (i.e. the Iraqi government) is defeated. Proclaiming a generally broad statement that we are waging a "war on terror" (in the same way we are waging a "war on drugs") pretty much leaves things open-ended.

[inquest]

Some people may have noticed that all the years since "the end of the [Gulf] war" (there was never an end of the war)....

I think you're talking past yourself a little, there. Constitutionally, there never was a beginning of the war.

[inquest]

It was establish back in the Washington administration that war could not be waged on an Indian tribe without a declaration from Congress. The fact that the government ignored that requirement later on doesn't mean much; when it came to the Indians, they pretty much ignored all law, including treaties contracted with them.

[muawiyah]

The issue, as I see it, raised in the original post was what the Constitution requires or provides for.

I certainly did not deviate from that issue when I asked, rhetorically, what the legal basis was for our troops to fire back at the Japanese planes at Pearl Harbor.

The original post contained the thoughts of a writer who seems unable to differentiate among starting a war, being attacked, or initiating action in an ongoing war relationship.

You really have to get beyond #11 and jump down to #15 to fully discuss the issue.

[sneakypete]

Gonzales is a political hack trying to get on the Supreme Court by telling his boss what he wants to hear but he is so outrageously wrong.

It doesn't matter. "Pander" is Bubba-2's middle name,and Gonzales WILL occupy the newly appointed "brown spot on the SC".The Dims will end up trading him Gonzales nomination for something they want,and it will be a done-deal. It wouldn't matter if his hobbies are setting fire to puppies and kittens. He's got the right last name for the job. He could only more qualified as a Bubba-2 nominee if he was a cross-eyed,blind,left-handed crossdressing transsexual half-Eskimo illegal alien who is bulimic and can't speak English so he and his seeing-eye dog can pass the driver's test in order for him to get his handicapped tags enabling him to park close to the door at Wal-Mart.

[Boonie Rat]

He could only more qualified as a Bubba-2 nominee if he was a cross-eyed,blind,left-handed crossdressing transsexual half-Eskimo illegal alien who is bulimic and can't speak English so he and his seeing-eye dog can pass the driver's test in order for him to get his handicapped tags enabling him to park close to the door at Wal-Mart.

Would you just stop beating around the "Baby Bush" and tell us what you really think of him! Man! Lizard eaters are so tactful!!!;)

Boonie Rat

MACV SOCOM, PhuBai/Hue '65-'66