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Mukasey: President Can Break Some Laws
While Mukasey doesn't think there's an inherent presidential right to torture -- which he said is explicitly prohibited by the Constitution -- that's not to say he doesn't take a broad interpretation of the president's Article II authority. Reiterating an answer he gave yesterday, he told Sens. Patrick Leahy (D-VT), Dianne Feinstein (D-CA) and Russ Feingold (D-WI) that the president, for example, can authorize surveillance outside the Foreign Intelligence Surveillance Act.
Feingold challenged Mukasey on exactly what he's saying. Was Mukasey arguing that any activity to "safeguard against a national security threat" would justify violating a statute? After some legal argumentation, Mukasey replied, essentially, that going outside a statute is an extreme step, and implied that he'll take steps to ensure that "push doesn't come to shove" between presidential authority and statutory limitation. But he left the door open for at least some nebulous presidential power that trumps congressional attempts at limitation. John Yoo might have a bad headache, but his skull is probably intact.
Comments (8)
jimijazz wrote on October 18, 2007 1:20 PM:Mukasey: another Bush henchman, plain and simple.
connski wrote on October 18, 2007 1:34 PM:The Bush administration has already abused its power: Lying to the UN and to Americans about Iraqi weaponry. Outing Valerie Plame. Using emergency powers of the Patriot Act to appoint US Attorneys without Senate approval in a non-emergency situation. Abusing FISA. The list goes on. They will stop at nothing and try anything to increase their power.
What's to stop these people with a long record of abusing power from continuing? Why won't they abuse FISA to spy on Americans and dig dirt on their political enemies? What's to stop unscrupulous telecom employees from spying on people and blackmailing or extorting them?
I pose these questions to our elected representatives, to political appointees like Mukasey, to the media and to telecom executives.
Connski
James wrote on October 18, 2007 2:30 PM:Why would anyone who has sworn to uphold the Constitution of the United States approve this appointment? It's absurd. Nevertheless, I'll bet that the Senate appoints this man. Senate (and House) Democrats seem incapable of drawing a hard line against anything, regardless of the circumstances.
Llyonnoc wrote on October 18, 2007 3:32 PM:If he has never heard of water boarding then where has he been?
Anonymous wrote on October 18, 2007 3:40 PM:Dems need to write their Senators today, or he's getting through the hearings.
Ben Childs wrote on October 18, 2007 3:45 PM:Congress is all but acknowledging that they have no power to stop any of Bush's illegal activities: wiretapping, data-mining, torture, refusal to submit to subpoenas, political prosecutions. Any oversight they try to exercise will only be overruled by a signing statement deemed unconstitutional or irrelevant due to national security concerns.
This administration has set the bar at..."You don't like it? Impeach us. Otherwise go f*ck yourselves."
Jordan Paust wrote on October 18, 2007 5:36 PM:Apparently there will be no real change in DOJ and no prosecutions of higher-ups for the war crimes and other violations of international law documented in "Above the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambrdige University Press 2007), just available thru www.cambrdige.org/us
Simon Dodd wrote on October 18, 2007 6:14 PM:jjp
Well, let's set aside the obvious point that Feingold is far off base talking about what the Supreme Court held in Youngstown: the court's opinions contain both holding and dicta, but Justice Jackson wrote a concurring opinion in that case, and concurrences (like dissents) are dicta, not holding.
But in any event, the more important issue here is that what you're talking about is not "breaking some laws," Spencer, but conflict of laws. If you have two statutes that are irreconcilably in tension (or, for that matter, a statute and a treaty that can't be reconciled), which prevails? Well, we know the answer to that, that's easy: leges posteriores priores contrarias abrogant. But there are other kinds of conflict of law, too. The important thing to keep in mind that while the President can't ever violate the law, the law isn't simply what's in the statute book. The Constitution is law, too - that's the central point of Marbury v. Madison and two centuries of judicial review. Remember the Supremacy Clause and what it tells us about what constitutes federal law: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land...." (Emphasis added.) Statutes that aren't made within the bounds of the Constitution are void - that is, Congress can make statutes that aren't law. Which is exactly what happened in Marbury (and numerous cases since): Congress passed a statute, the Judiciary Act, but the statute in part exceeded the scope of Congress' lawmaking power, which meant that that the part of the statute wasn't law and thus wasn't enforcable as law.
The argument made by some with regard to FISA - regardless of the argument's merits - is not that the President can break the law, but that to a greater or lesser extent, the FISA statute is not the law, that it exceeds Congress' power vis-a-vis the Article II powers of the President. Now, of course, you can argue with that, and you can make the argument that it's wrong. But make the argument - rejoin the argument actually being made, rather than twisting it for rhetorical effect.