Wednesday, February 15, 2006

Vice President Cheney and The Fight Over "Inherent" Presidential Powers

Vice President Cheney and The Fight Over "Inherent" Presidential Powers: His Attempt to Swing the Pendulum Back Began Long Before 9/11
Friday, Feb. 10, 2006

Vice President Dick Cheney has stirred up an old fight in Washington. He sent a rookie, however, to make his case publicly. It did not work.

Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to offer what may have been the weakest legal argument for presidential power to conduct warrantless electronic surveillance since Nixon's Justice Department invoked the views of King George III.

King George III's take on the matter did not carry any weight either. Indeed, the D.C. Circuit Court of Appeals could barely believe the Nixon Justice Department was serious. The panel reminded the government's lawyers that warrantless searches were among the very reasons the colonies fought for their independence.

As for the reaction to the Gonzales testimony, a New York Times editorial described it as "a daylong display of cynical hair-splitting, obfuscation, disinformation and stonewalling." The Times also noted committee chairman Arlen Specter's analysis of the Attorney General's legal position: It "just defies logic."

The Illogic Of the Bush Administration's Position on Congress' Law and Views

Chairman Specter is correct. Gonzales' position is that the President can make his own rules, notwithstanding the existence of a federal statute - the Foreign Intelligence Surveillance Act (FISA) - that is directly on point, expressly prohibiting warrantless electronic surveillance. For the Attorney General to defend such a view defies "the equilibrium of our constitutional system" to use Chairman Specter's words - treating Congress' clear word on the matter, as if had never been spoken at all.

Warrantless wiretapping, moreover, is not just a separation-of-powers violation; it is also a federal crime. I suspect we will hear more from Chairman Specter on this issue, for he has great respect for the rule of law....