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Friday, December 23, 2005

Link re: Domestic Spying and the Limits of Executive Power

Glenn Greenwald has posted a nice essay summarizing the legal issues surrounding the “domestic spying” brouhaha. I am still digesting what he wrote, but do want to add the following, for clarity and not as criticism:

Glenn’s article contains these passages:

absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress.

...that the law be made by parliamentary deliberations

The President's defenders are pretending this is a conflict between the President and Congress, and that in times of war, the President's authority prevails. The language I quoted above inadvertantly supports that false distinction by saying, basically, that the President is subject to Congress' laws.

This misses an important point: that the laws passed by Congress are also signed by the then-President. In other words, the laws that Bush violated represent a prior agreement between the Congress and the Executive that they are right and good; the President (in the form of his predecessors) has already agreed to be subject to them.

This makes the "Congress vs. Executive" distinction false and misleading. Bush violated laws that both branches enacted. To claim that the Executive Branch is not subject to a law that the Executive Branch already endorsed is disingenuous – and illegal. And, not to put too fine a point on it, impeachable as a “high crime.”

2 Comments:

Blogger Glenn Greenwald said...

This is a good point, although it would mean that no Congressional law can ever be challenged on the ground that it unconstitutionally usurps Executive authority, because all laws enacted by Congress are signed by the President (except for the very few laws enacted by virtue of overriding a veto).

I could see a President having a legitimate complaint if a predecessor President who didn't care much for Executive power signed into law a bill which usurped Executive power (as the GOP will now undoubtedly claim Jimmy Carter did when he signed FISA into law).

But at the very least, you are right that the fact that this was a JOINT enactment of the law by both branches gives it a much stronger constitutional leg to stand on. That's an interesting point.

12/23/2005 11:56 AM  
Blogger Thersites D. Scott said...

it would mean that no Congressional law can ever be challenged on the ground that it unconstitutionally usurps Executive authority, because all laws enacted by Congress are signed by the President

That's a good point too. I suppose I'm focusing more on the political/"PR" front than the purely legal front -- partly because, after Bush v. Gore, I'm inclined to think that if this issue went before the Court, it would be decided on political grounds masquerading as law. (Yes, I'm a bitter lawyer these days!)

Thanks, again, for a good collation and analysis of the law!

12/23/2005 3:11 PM  

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