Obama DOJ Embraces BushCo FISA Argument - And Takes It Even Further
By Susie Madrak Tuesday Apr 07, 2009 9:00amGlenn Greenwald, who's a former constitutional attorney, is very unhappy with this move from the Justice Department:
[...] Late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.
In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.
There are several notable aspects to what happened here with this new court filing from Obama:
(1) Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply maintaining already-asserted arguments in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. Indeed, EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ.
That didn't happen. This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials. Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of "state secrets" to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself.
(2) It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying.
As EFF's Kevin Bankston puts it:
This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.
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i'm very disappointed in this move by the obama administration. it feels like that there is much more to this than obama. i don't know if the truth would be too destructive/revealing. unlike a few i'm pleased with obama at this point but this issue is a problem for me.
I agree on all points.
I think ``too revealing`` is more likely. I don`t want to go all conspiracy theorist here, but if I were going to implement an illegal wire-tapping scheme, the first thing I would do is wire-tap those who would be in a position to prosecute me in the event the public learned about the wire-tapping. Get enough harmful information of these people and they won`t want it exposed.
Not saying its probable, but its at least possible. Your Constitution means nothing if no one enforces it.
I thought Bush should have been impeached, tried, convicted, removed from office, and jailed for this kind of criminality.
I can't think of any reason why that isn't appropriate for Obama.
Especially now that the right is getting paranoid.
There's at least one person who hangs out here with whom I shared my theory that Obama would start spying on the Carlyle Group's overseas calls and force the right to come out howling for legislation or a constitutional amendment that would prohibit warrantless wiretaps. The administration is employing a different strategy to get this done, but it's getting it done, anyway.
Brinksmanship: I love it.
No andy. That is not why he is doing this.
Do you think that was the logic behind telecom immunity? To get the FISA modifications changed?
I am like a lot of posters above. Some of these legal defenses from the Obama DoJ have me shocked and disappointed. It is the one area I do fear he is going to lose a lot of supporters over. BUT, I am naive enough to also see it a little like Andy K, except, I don't think his end game is the paranoid left. I hope they are taking extreme positions because when it is finally challenged by at the SCOTUS, there will no rock left to crawl under in the future. I am hoping against hope this is where they're going with this. It smells real bad, and is not acceptable. It also has the taint of looking very.. lazy, from an administration that is very energetic, and engaging all sorts of problems on all sorts of fronts. Before now, it's been rubber-stamping bad shit from the previous admin. This new story is so damning because they seem to be making a horrible situation much worse.
I am also looking forward to a town meeting/presser on this.
BJ
..that SCOTUS won't go along with this?
That the Obama DOJ hasn't gone after W and company for war crimes just rubs me the wrong way. So, we wait how long, eight years, for an honest man in the White House and we end up with, what..same old, same old. No Justice and when I'm away in Europe talking to my wife, I'm confident the NSA will know exactly how many gallons of fuel oil we'll be buying next week. The soldiers and officers who had their phone calls listened in on when they were talking to their wives, how exactly did that stop a terrorist attack?
There is nothing that offers iron-clad protection against any wiretapping or immunity for the companies that cooperate with the government.
You need the GOP to move legislation on this. The situation as it stands makes it impossible for the Democrats to initiate the legislation. There were absolutely no Republicans who would vote to restrqain wiretaps while Bush, or any other Republican was in power. The GOP has created a situation akin to the one that allowed only Nixon to go to China.
Anti-wiretapping measures cannot be passed without bipartisan support. With the GOP already howling about every other move that Obama has made, why don't you think that this will motivate them to howl even louder? The Republicans will be offering their legislation very soon. Obama will let Congress pass it without much comment, and he'll sign it. Happily. He'll have forced Congress to actually do something.
but rather forcing the DOJ not to use these clearly unconstitutional mechanisms.
The DOJ is part of the executive, not the legislative.
is that the current law can be circumvented. That was exactly what "telecom immunity" was- an end run around the law.
Pass an amendment that spells everything out and you won't have the end run.
but it is also under Obama's discretion whether or not the DoJ should enforce those laws. If it was clear the Dems could not get enough cloture to repeal the law (after all most of them voted FOR it, Obama included), and it was Obama's priority to preserve constitutional "purity." That is the route I would have expected him to dictate.
I would most definitively not consider not only enforcing said law, but actually extend it in spirit and purpose, as an even remotely correct way to undermine said law. So it is clear, that as far as Obama's cabinet is concerned, our constitutional rights ain't a priority.
And I find that very very very worrisome.
Rather than making up some baroque scenarios, I tend to always go with Occam's razor when it comes to such uncertain situation.
"The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon propable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized."
That would certainly do the trick.
FISA allows wiretaps without warrants up front. Is that in the spirit of the 4th Amendment?
And since there was no successful challenge in the courts for 20+ years since FISA was enacted, I would have to say: Yes, the delay allowed in producing the warrant under FISA does not fundamentally violate the spirit of the 4th Amendment. You say otherwise?
I really don't believe this is brinksmanship.
You scenario is pretty complicated and there are many things that could kill the legislation and make the plan "backfire".
The telecom immunity bill provided cover for the telecom companies or they would not have been included in it. It may not be total immunity, but it is close enough and the spirit of that bill was to protect them from lawsuits.
Obama has also supported that no corporations are prosecuted for corporate wrongdoing, and has implied that he is more inclined to look forward when it comes to finding out what caused the financial meltdown (with respect to investigating criminal activity)
He would have taken major political damage in the midst of his run for the Presidency. He had a land mine placed right in front of him. Again: Only Nixon could go to China.
There's nothing complicated behind this. He's simply forcing the GOP's hand by saying, "Oh, you were behind this when your guy was the President- let's see if you like it now." They won't like it.
where this has worked in any sort of legislation. To actually defend and create defenses for these Patriot Act measures to destablize the measures, seems far fetched. It doesn't add up. In prior statements, the new DOJ stated that they would support FISA legislation. I am more inclined to think that this administration will utilize the tools created by Bush. It's hard to let so much power go when you realize what you have in your hands. I hope I'm wrong.
At least not in the US. But I could point to the tactics of Bismarck.
This is a sickening breach of trust and freedom and an unconscionalbe power-grab by an executive branch.
That said, I rather hope Andy K is right that it lights a fire under the Republicans in Congress to try and pass a law explicitly closing any of the loopholes of the last 8 years, and that the Democrats will do what's right and support it.
I'm nowhere near optimistic or naive enough to give Obama some kind of credit for this, but I do hope that's how it'll play out. C'mon, Republicans, don't hold back your knee-jerk reaction to everything and anything Obama does when it counts--do the right thing even if it's for the wrong reason.
Might at least benefit the world in the future.
to maintain their denial... LOL.
If Obama was interested in investigating the Carlile Group, he could request a subpoena or instruct the DOJ to investigate them. I don't want my rights to be subdued to fit some sort of agenda that Obama may or may not have regarding the Carlile Group.
WTF?
but it sounds logical, and certainly possible. That would be great in fact, if that is what is taking place here. Great strategy.
There already is such an amendment, the fourth. See my comment below "Here's an idea" on that matter.
Say you are a business that transmits sensitive material over the phone or a secure email. The government contracts the telecom companies to gather your data. The telecom company subcontracts the collection and storage of the data.
Then some employee at the company steals the data they find interesting, sells it to a competitor.
This decision means you have no recourse. This law doesn't just affect "people who have something to hide".
Is aimed against the Journalists, Press any dissenter AND Whistle Blower of the NEOCON Plan.
Everything was done under the "Umbrella" of the "War on terror (Now with a new name)"
Here is the proof:
http://www.youtube.com/watch?v=UUSZHC1Gu7U
!!!
No way am I voting for Obama in 2012. No way in hell.
O'Busha 2012?
Just another politician, working for his masters. I thought we voted for Hope and Change last Novemeber. It is starting to look like its back to business as usual in the Whitehouse. Grrrrrrrr!!!!
was Kucinich.
Yup
haha, try...
http://kucinich.us/index.php?option=com_conte...
Remember, governments don't give up power once obtained.
telecom immunity=government immunity
we should not be surprised.
Obama government by the corporations for the corporations
If you want socialism, think of the phone company.
Socialism does not mean what Lenny Bruce thought it meant....
Fisa Card: It's Everywhere You Want To Be.
http://www.youtube.com/watch?v=qjOTP4lwaLs
You should see part two, where he decides to take the father up on his offer.
I think I have a new question for Obama the next time he decides to have a town hall forum.
Why wait till the next town hall - just call up a friend and say it out loud on the phone and ask whoever else is listening to pass it along to Obama.
Obama is simply being "inclusive" you know spooks are citizens too, and Obama is just "including" them. He is the president of all of us. Shame on you, for hanging to your constitutional rights and not being inclusive of those who want to spy on you!
So can we start saying anything remotely critical of mr. Obama, or is it too "early" to open our mouths. Or do we have to wait until he is out of office, like the GOP did with their beloved Bush?
Yeah, the more things change...
I always enjoyed the condescending excuses we were given for his "FISA" bill. I can't wait to read what rationalization the Obama diehards come up to justify this one...
I was looking for Casper and Spooky cartoons, but I guess this'll have to do from one of my favorite movies:
http://www.youtube.com/watch?v=OpEKxsCEIRc
So it is written, so it shall be.
i really want to hear from the obama people. i realize some of this stems from the Patriot Act which i was totally against. maybe this would be too damaging.
But I'd like to hear the DOJ try to explain this one.
Would be a nice follow-through move by Obama in this case. He needs to explain his position to the public. At least Bush did that much.
Same sh#t new administration.
michelle made fashion news!
why should this be surpriseing? obamas a tool of the mic! and the corporations! he likes spying on you!he likes keeping you in the dark on the bush cheny crimes, he loves homeland [fashist] security , voted for every crime bush gave you, wants you to send your kids to afganistan to resume the criminal acts of the bush administration ! looks forwards to more trickle down with the bank , saveings and loans wallstreet bailouts !ring ring , click , click hello , hold on were waiting for your spy to listen in on you!
What is it you don't understand? The DoJ is a appointed position to protect the citizens. The president cannot order the DOJ on how to interpret the law. Bush told Gonzalez how and what he wanted from the DOJ. Do you want Obama tyo be telling the DOJ what the law should be? Obama can't legally order them on how to interpret the law. If you have a bone to pick, pick it with the DOJ opr whoever wrote the law.
no i understand obama cant do shit!his hands are tied! since he voted for all this crap hes in no way responcible! exactly !
I understand Obama cannot just tell the DOJ how to interpret the law (it sucks it overturned a more basic and fundamental law to begin with) but I keep hearing that Obama doesn't have control or influence over the DEA, the Department of Justice, the FDA. What does the executive branch have control or influence over?
so, ron, do you advocate pressuring obama to fire eric holder?
something tells me that obama supports this decision by the DoJ 110%
Good point Samson.
But what Ron is saying is that even if Obama was OPPOSED to the decision, it came from the department of justice so he cannot chime in or have any effect on it.
The president is the top official in the executive branch. The DOJ is part of the executive, they are employed "at the pleasure" of the president.
Government 101.
You know Truman's placard on his desk read "the buck stops here" not "the buck may or may not lie here"
And with President William Jefferson Clinton a plaque saying The Buck Stops Here was on Monica's thong.
Lewinsky not crowley or bachmann.
You would think so but some are arguing, and Obama argued it with reference to pot raids, that the executive cannot weigh in.
Remember, Obama's spokesman said "Obama made his policy clear and it is his hope that his department appointees will follow his wishes."
"hope, wishes?" what the heck happened to the authoritarians?
before Holder was appointed. Contact your congressperson.
... never took such a radical stance.
Who would have ever thought that John Ashcroft and Alberto Gonzales could be viewed as civil libertarians by comparison?
It may be well to remember that no law can override the Constitution. Only a Constitutional Amendment has the power to do that. There has never been any Constitutional Amendment to the Constitution to do away with the 4th Amendment as of yet. So in other words the DOJ is full of shit. This isn't about picking bones!
Thanks I tried to say something along those lines above. This is based on something that is unconstitutional to begin with.
Obama did something similar with the classification of 790 pages of a 800 page document that documented changes to the copyright laws.
Haw are the citizens supposed to follow laws they cannot see or discuss?
... the time to fight was when Bush instituted this nonsense. Instead, the Democrats rolled over EVERY. SINGLE. TIME.
When Elmer Fudd (Gen. Michael Hayden) was busy fumbling about and proposing 'reasonable suspicion' instead of 'probable cause,' Sen. Dianne Feinstein was busy questioning whether his loyalty would be affected by his Air Force affiliation.
And if the blame lands on Obama's plate, I have to also ladle out some for the folks who were busy planning their blogswarms and 'Facebook Night of Action' ... but showed absolutely no interest in reading any of the books and material on the law and the legal precedents therein.
The issue is not 'who did it' and never has been. It's that these actions, both by Bush and Obama, are ILLEGAL.
...this is attempting to interpret laws that don't exist. It's bullshit. And, for a constitutional scholar it betrays an unconscionable disregard for the Constitution.
For a constitutional scholar, heralding the executive, to allow the DoJ to bypass the constitution in such an egregious fashion is very very very troubling.
...Obama voted for the patriot act re-instatement a long time ago. and gave immunity to AT&T also.
you should have been troubled for the last three years.
None of the Dem front runners were anywhere near what I could consider acceptable, except maybe Kucinich.
I know that when you vote for the lesser of two evils, you still end up in a less than ideal situation.
only gave us two choices didnt they.
...especially if the DOJ is using its position to protect those who take our civil liberties instead of protecting them. And its very easy for Obama to legally tell the DOJ what the law should be:
1) Barrack Obama gives the head of the Department of Justice (the Attorney General) a call and lets him know that spying on citizens is a violation of existing law, so please fire the idiots at the DOJ who asked for immunity from lawsuits for these criminal acts. For the sake of argument, let's say the AG tells Obama that he can't legally ask him to do anything so he can take a long walk off a short cliff.
2) Obama then politely reminds him that cabinet members serve at the "pleasure of the president", then politely tells Eric Holder to please clean out his desk because his happy ass is FIRED.
3) Obama then nominates someone who will uphold the law. That would be change I could believe in.
Are President Obama and Eric Holder trying to give fuel to the far right fringe with this crap?
Good God, I'm disgusted.
-GSD
Every time bush played fast and loose with the Constitution, he set a nasty precedent that would cause even greater illegalities in the future.
This sure as FUCK wasn't what I voted for.
WTF Obama?
WHY?
I am feelin a little betrayed here.
youll get over it im sure!
I'm about THIS fuckin close to puttin you on my ignore list.
You NEVER have anything to contribute, just bullshit, and DOOM DOOM DOOM.
GAH!
I bet you're a REAL treat at a party.
I have given you the benefit of the doubt long enough.
Read my post at 10:26. If you want to bitch about it, write your congressperson and make them change the law.
The law IS that warrantless wiretapping IS illegal. I don't think liberalNmoderation wants that changed, I think he wants it enforced!
And believe me, I will not simply Bitch about it. I will contact my congress people...
I wrote my Congressman. I wrote both of my Senators.
I got newsletters from Miller and Boxer on how hard they're working to protect us, and I got a bedbug letter from Feinstein saying
fuck offshe respectfully disagreed....It's way past due for the "Great Repeal". The Patriot Acts (God, but I hate that Orwellian name), the Military Commissions Act, Restore habeus corpus, restore posse committatus, get rid of all these laws that were put in place under the pretense of providing security. The only places that the security that these kinds of laws provide are found exclusively in maximum security prisons and in graveyards. Worse, when they work as intended, the only thing they achieve is to turn citizens into subjects. Thanks just the same, but I'd rather take my chances with terrorists.
You know this is bullshit. Patriot act should have been repealed, the debt cap should have been reestablished, and illegal wars should have been stopped.
The way Obama used the unlimited debt cap to try and boost the economy(pay us off so we don't loot and destroy things), he may try to use the Fisa against the turds that started it.
Still as far back in history that I have read, republicans take power pass crappy laws that infringe on our freedoms, then democrats criticize those laws to retake power in government. Tho democrats don't change the substance of the new laws they only seem to polish them up a bit and maybe rename it. Obama will most likely "save" the economy by the time 2012 rolls in, but I doubt any spy programs will be abolished, only reworked to be more low key and user friendly.
America what?
the new administration has so far refused to pursue prosecution of Cheney/Bush et al, because they're planning to continue using all of those 'convenient' laws/policies left in place.
It should be interesting to see if any of our favorite reich-leaning blowhards comment on this action.
my ass.
At any rate, hopefully the courts reject the DoJ's motion to dismiss. We don't need anymore bad precedents set, what with the last 8 years or so.
The most ideal situation is that the court rejects the DoJ's motion to dismiss and grants summary judgment in favor of the plaintiff.
Change...
Tue, 04/07/2009 - 10:39 — -Bricked-
my ass.
________________________________________
You took a dump in your Depends?
Out in the neighbor's bushes, I like to share.
.. the court [should reject] the DoJ's motion to dismiss and grant summary judgment in favor of the plaintiff
The United States is a banana republic. In more ways than I want to count.
I just did. And it was short. It wasn't about this, it was about an immigration thing, but ask why like I did...if a lot of people do it, I mean, that's how the fundies and the reich get stuff done...just a bit of:
Do it for everything. Let him know. He's just doing what the loudest voices are saying. You have to become louder than them, one email at a time, if that's what it takes. You then are actually doing something.
This pisses me off.
No president is ever going to give up any of his power voluntarily.
I wonder if we might get FauxNews to get into an uproar about this and get their minions fired up. Nah, not gonna happen.
Where's the change?
Oh! There it is!
"Report: Senate GOP Threatens to Block Nominees Over Torture Memo
Attorney and blogger Scott Horton is reporting that Senate Republicans are threatening to filibuster two top Justice Department nominees if the Obama administration releases secret Bush administration memos that authorized the torture of prisoners. The nominees are Dawn Johnson as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel. Horton writes, “It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.”
... for Obama to blame Republicans for what he wants to do anyway.
sure makes ya wonder ...
http://www.thedailybeast.com/blogs-and-storie...
... the GOP blamed the Dems for what they wanted to do.
The more things change...
Woman who could nail Bush http://www.thedailybeast.com/blogs-and-storie...
I say Obama should go ahead with a vote on Ms. Johnsen and let the Republicans filibuster.
Let the whole freakin' world understand that they are threatening the POTUS with the filibuster because they do NOT want the truth to be released regarding torture, war crimes and other illegalities of the Bush Administration.
Hopefully all the Republicans who stand up for SECRECY will draw the attention of their various constituents and if we're lucky the assholes will be inundated with letters and phone calls and hopefully will be booted out of office!!
FILIBUSTER AWAY!!!!!!!!!!!!!!!
Ahh here it is. Another check in the right column.
some of you may be aware that portions of the patriot act come up for renewal. now is the time to get organized and start beating the drums to make sure both houses do not renew those portions.
...he voted for the patriot act re-instatement. ...in 2006.
...he also lied when he said he opposed the immunity provision, and ended up voting to give AT&T immunity with a big fat yes vote on FISA...
so I'm not surprised. ...Eric Holder huh?...
Great context milq, boy we have short memories.
Just a teency weency pattern going on there.
Would be running a far different DOJ.
Shit would be hitting the fan royally right now had Obama named a true Constitutionalist as AG.
This may sound naive, but is it possible that the Obama DOJ has decided to let the judiciary rule on some of these secrecy assertions so as to have their official status determined by Constitutional checks and balances?
I really hope so.
Or, to put it another way, I hope the judiciary sees fit to reject or radically modify the Obama administration's position.
I think the constitution is written in easily understandable English.
this is illegal as hell...a child could figure it out.
...that we're not seeing from even those legal experts who are most adamantly against these kind of unconstitutional power grabs. Simply put, laws like the USA PATRIOT Act are Attempts to Change The Constitution doing a run-around Article V. In this particular case what Congress has sought amounts to a suspension of the fourth amendment.
I think if folk like Greenwald and Turley were to frame it this way the public would have a better idea of just how radical these laws are, and the fact that they don't protect the public, only the powers that be.
Obama has only been Prez for X amount of days. But, but, Obama is really secretly spying on Republican law breakers. But, but, Obama has SO much to deal with, I'm sure he just hasn't had the few days to know what he's talking about, before tackling this publicly. But, but, but.............did you see Michelle's new sleaveless dress? OH my she is SO Jackie O!!
Tyler Durden @ 10:39
Government 101? Wrong you arrogant shit, that's Bush Government 101.
The Department of Justice is administered by the Attorney General, not the President. Remember when Bush tried to intimidate a sick Ashcroft through Gonzales and Feight and failed?
government and civic classes?
The DoJ is part of the executive, the President nominates the top positions on his cabinet, among them the Attorney General, et al.
That has been the way the US Government has operated for the better part of over 2 centuries. If this is news to you, maybe you should read a book?
Maybe you were under the impression that the attorney General is nominated by the holy spirit?
All your "arguments" seem to revolve around name-calling and intimidation, whenever anyone dares criticize your precious Obama. Color me less than impressed. You need to get a new schtick, the whole insulting barrage was entertaining awhile back, in a sad sort of way, it is time to move on... and use actual arguments based on reality and/or logic. Not really hard thing to do, and it should increase your level of discourse by at least one order of magnitude. It would also help your positions immensely.
Your confusing federal appointments with cabinet positions.
Attorney Generals of the US have confirmation hearings before the Senate, and once installed, the president no longer has the power to fire them without Congressional approval.
which was my point.
In fact, I thought most (if not all) presidential cabinet positions had to be confirmed by the senate? At least the secretaries of each of the department have to.
http://law.jrank.org/pages/13495/Myers-v-Unit...
says that "the Court held that the executive branch had the right to remove federal employees and it affirmed the decision by the U.S. Court of Claims to deny Myers any back pay."
You have to look at the court cases preceding it and following it referred to in the text.
Nine years later, the Court did take back some of the broad presidential removal powers granted in Myers. In Humphrey's Executor v. United States the Court said Congress had the right to approve the removal of government officials whose jobs were not purely related to executive duties.
Related Cases
Ex parte Grossman, 267 U.S. 87 (1925). Presidential pardon power and habeus corpus.
Humphrey's Executor v. United States, 295 U.S. 602 (1935). Set a time limit that an executive official can be removed by the president but only in statuorilly defined situations (Congress).
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). "To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces."
"The District Court issued a preliminary injunction restraining the Secretary of Commerce from carrying out the terms of Executive Order No. 10340, 16 Fed.Reg. [p581] 3503. 103 F.Supp. 569. The Court of Appeals issued a stay. 90 U.S.App.D.C. ___, 197 F.2d 582. This Court granted certiorari. 343 U.S. 937. The judgment of the District Court is affirmed, p. 589. [p582]"
And take a basic high school American government class.
From the DOJ mission statement:
"The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. "
If you have trouble distinguishing between the 3 branches of the government, I would recommend you apply your own advice.
Again, government 101.
WTF does that have to do with legislation?
You would have to improve to be an idiot.
Wow, that was impressive... not.
Legislation was not what we were discussing in this subthread, was it? You were calling people names because we pointed out that the attorney general operates at the request of the president. The "at the pleasure of the president" which you were calling me names for is captured by the "gives advice and opinions to the president" part in the job description for the attn. General.
Your reading and comprehension skills are notoriously laking.
I have noticed that other than name calling, you usually are never able to bring anything of substance to most subjects in this site. LOL.
you are just as guilty. Don't you recall calling L&L an idiot? Don't give me the "He did it first" excuse.
as that would sort of undermine your whole point, wouldn't it?
I was just stating a fact.
your opinions are just that, opinions, not facts.
And like assholes, everyone has got their own opinion.
you're a complete ass. Whoops! Now you've got me doing it.
http://www.youtube.com/watch?v=0tT4h5G8xT4&fe...
Don't worry, even though my condition is temporary... rest assured that yours is permanent.
http://law.jrank.org/pages/13495/Myers-v-Unit...
As you can see the argument has been flowing back and forth for around 200 years.
Despite what's in the DOJ mission statement, one could make a Constitutional issue of it, because the latter has precedence.
At one time the Attorney General gave advice to the President, but the practice ended in 1819 because of the workload. Check out Wikipedia.org./DOJ.
Are you that obtuse, or you have to resort to taking quotes out of context to make your point. I understand that without name calling you lose like half of your intellectual arsenal... but jeez having to resort to such brazen intellectual dishonest attempts.
From the actual Department of Justice's website:
"The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. In matters of exceptional gravity or importance the Attorney General appears in person before the Supreme Court. Since the 1870 Act that established the Department of Justice as an executive department of the government of the United States, the Attorney General has guided the world's largest law office and the central agency for enforcement of federal laws.
The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be "learned in the law" with the duty "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." The workload quickly became too much for one person, necessitating the hiring of several assistants for the Attorney General. With an increasing amount of work to be done, private attorneys were retained to work on cases.
In 1870, after the post-Civil War increase in the amount of litigation involving the United States necessitated the very expensive retention of a large number of private attorneys to handle the workload, a concerned Congress passed the Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870) setting it up as "an executive department of the government of the United States" with the Attorney General as its head. Officially coming into existence on July 1, 1870, the Department of Justice, pursuant to the 1870 Act, was to handle the legal business of the United States. The Act gave the Department control over all criminal prosecutions and civil suits in which the United States had an interest. In addition, the Act gave the Attorney General and the Department control over federal law enforcement. To assist the Attorney General, the 1870 Act created the Office of the Solicitor General.
The 1870 Act is the foundation upon which the Department of Justice still rests. However, the structure of the Department of Justice has changed over the years, with the addition of the Deputy Attorneys General and the formation of the Divisions. Unchanged is the steadily increasing workload of the Department. It has become the world's largest law office and the central agency for enforcement of federal laws. "
It doesn't say anything about the attorney general having a different role due to the workload, it says that the department was expanded to fulfill the increased workload.
Seriously...
So the FISA law and the Patriot Act are both statutory limitations until the Supreme Court says otherwise, or the Congress votes or changes them in some manner. In the meantime, the executive branch has to enforce the law as written, but that leave some room for executive discretion.
The U.S. Attorney General issues advisory opinions to this very day. They are persuasive authority with their own citation format (see section 2-490).
The OLC (Office of Legal Counsel) provides advise to the president, drafts opinions and is part of the... (wait for it)... Department of Justice.
Not only that, in that long description it doesn't say who can fire the Attorney General; the question that sparked this whole side-argument.
the main gist of this discussion was that the attorney general is part of the executive branch of the government. And thus it answers, among other people, to the leader of the executive. I.e. the president.
The firing or not firing was a tangential argument introduced to back pedal by some of the posters.
I admit being wrong when I convoluted Holder's responsibilities directly to Obama with the job definition of the DOJ. It doesn't erase the fact that much of this story we aren't being told...we are all speculating. You cannot proclaim yourself right when you don't have all the facts. It's just self-stroking.
...and of course works for the President and by that does give advice when requested. Tyler Durden is right that Holder works for Obama, but has zero proof that Obama/Holder=Bush/Gonzales. Why would an Administration and or a President who was a constitutional lawyer who claims to champion change, side on this issue with the worst administration in U.S. history if they didn't know something we didn't? Why would Obama(a very smart guy who seems to make all the right moves) risk destroying his base with no apparent upside, do such a thing without good reason? Obama bashing on this subject seems way too simple.
At least question the guy and give him a chance to explain.
Kind of like when he stated he'd support a filibuster on telecom immunity then voted for it.
I bet that some horrific potential government destroying shit went on with that. If you(and I) can clearly see that this is a stupid move by Obama, a career killer, why would he make such an obviously bad decision...with no upside. There is much more to this than we are being told. It cannot be this simplistic.
By agreeing to be their pawn, Obama avoided their opposition and, more importantly, put their power (and money) squarely on his side.
Follow the money. It explains a lot.
And that also would be a secret plan.
Why he was acting all cozy with Bush at the White House prior to taking office?
Why all the smiles and back slapping and photo-ops?
Why all this when he KNEW that Bush and Co. had acted for eight years outside the Constitution by pre-emptively attacking a country that had not attacked us, by using illegal torture and illegal wiretapping and on and on.
The Bush Presidency was that of a rogue government from the day Bush took the first oath.
Of course I blame Gore for this. As the Vice President he had the duty and the right to not validate the election when the proper number of Congress persons asked him not to.
Had all the Florida votes been counted, as they should have been, Gore would have been declared POTUS. Sure, we would have had to wait about 2 months for the results, but the same thing is happening with Franken right now. All the votes are being re-counted and right now he's about 300 ahead.
The point of my little diatribe here is that I am disappointed that Barack Obama, as an attorney and former professor of Constitutional Law, isn't acting in a more respectful manner to the Constitution and THE LAWS OF THE LAND.
His behavior with Bush prior to his Inauguration caused me to see a sea of red flags all over the White House lawn.
There seems to be as many experts here as what the right wing has.
is the elected President of the United States, picks and appoints his Attorney General and DOJ heads, but has absolutely no say in anything they do?? Then why in Gawd's name, would the President pick anyone with different policies than he has?
Bush didn't like what Powell had to say. Gone.
Didn't he get his first treasury secretary Snow out as well? Powerless president with zero accountability?
the art of deflection used when Bush was in office, is alive and well in that other official party as well.
Right Ron?
Riiiiiight!
Here's the text of amendment IV:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
I think there may be a narrow window here. Who and what defines unreasonable searches and seizures, or defines probable cause? Is it the FISA law and court itself? And in what cases would it appear that one or more branches of our tripartite system are being compromised by another? But at this point it's merely investigatory.
However, it may be discoverable to the otherside (sans items redacted for security sake [a potential for abuse in itself]), then the V Amendment gets involved, and could potentially throw out all the gathered evidence if the court considers them inadmissable.:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
So the question becomes on an ad hoc basis, is this information necessary for the investigation or the prosecution? Because if it's the prosecution, there's a strong liklihood that the evidence will be thrown out, as per the V amendment.
"Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.
"That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.
"After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act.
"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.
"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people."
I just want to point out that this story is a re-post of Glenn Greenwald's column at Salon.com,
http://www.salon.com/opinion/greenwald/2009/0...
No one covers these issues better.
I was wondering who was being quoted in the main post.
Yeh, I caught that too, but I think what happened was just a brain fart. Amato might wanna edit with a hat tip and a link - Glenzilla's a lawyer, y'know...
Trust your leader. Hope for the best. Go back to more important stuff.
"They need to take responsibility for their country." Barack Bush in Iraq after sneaking in........
LOL CC, now we have progressives screaming "Those ungrateful Iraqi's. When are they going to stand up so we can stand down?"
If one can stand down, can one sit up?
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