[This post might be thought to beating a dead horse, but there is a fundament principle at stake here, and besides, this is my blog. I would add that given the allegations, impeachment really should be spoke as a quite reasonable approach. You know, if lying to get us into war did not -- seriously, why was that not impeachable, if that is your claim?
Maybe, because too many of the critics are weenies. And, there is some discussion that impeachment might be a reasonable thing to bring up. But, compare this to the multiple papers that in '98 suggested the President should step down because of his actions related to lying about a blow job. I guess, this President is in effect doing the same thing, metaphorically ... it just is much less pleasurable. And, he is benefiting from past abuse of the impeachment process.]
Various legal and political blogs have provided tons of fascinating (for those so inclined) coverage of the national security warrants story, spelling out why it is so serious and troubling. One had a post entitled "Why Is Bush Helping Terrorists," spelling out various cases where President Bush talked about means of targeting terrorists. In other words, one of many BS ALERT! posts.
My BS meter also moved to red territory when I looked over a Chicago Tribune editorial from last month by a former Clinton official claiming that the President's actions were legal. Why? Well, one FISA appeals opinion (generally unnoted, the only FISA appeal, the judges handpicked by CJ Rehnquist) dropped in a few words of dicta saying that FISA cannot remove the inherent power of the President.
This is akin to the "executive override" the President claimed when he signed the McCain and Graham amendments respecting torture and (restrained) habeas procedures for detainees (at least, those in Gitmo). He would follow them up to the point that they invaded executive power. To the truly fatuous, this appears to be boilerplate. In fact, and past behavior makes to clear to all except those who do not want to believe, it is an open-ended "get out of jail" free card allowing him to ignore laws. ["McCain's office did not return calls seeking comment yesterday."]
Life isn't that complicated: inherent executive power does not include the right to ignore the law. The Constitution, which he swore to uphold ("so help me God"), divides military and foreign relations power between the different branches. For instance, Congress has the power to pass laws (and the Senate, the power to ratify treaties doing the same ... though enabling legislation [not always passed] spelling out the details passed by the full Congress is often key) spelling out the "law of nations," which includes how to treat foreign detainees in war time. They also have the power to regulate the military, even if this in some way restrains core executive functions.
After all, military campaigns are clearly an executive bailiwick. But, Congress can ban the use of certain weapons as well as setting forth rules of proper military behavior. This in no way illegitimately invades executive power, since the President has no inherent right to invade enumerated congressional powers. Powers in other words are not put in little compartments, but in practice blended. Checks and balances. High school civics.
I'd add that the authorization of force used to justify executive power in this case is not "war" per se, but a sort of junior varsity version that brings with it less broad powers as compared to WWII and so forth. Such powers, including amendments to FISA passed after said AUMF, are the baliwick of Congress. The President can act in a twilight zone of sorts, but the true gray area here is a lot less gray than the President suggests.
Thus, easily manipulated boilerplate about inherent executive power is so troubling. One final bit. An interesting Alito memo was brought up in which he promoted the idea that executive signing statements should be used to help determine the meaning of bills that the President signs into law. For instance, the statement referenced above. But, Art. I, sec. 7 notes that the President signs into law bills that Congress present to him/her. Thumbs up, thumbs down. No, "well, I'm only signing this if you mean this" ... in fact, this has a line item veto feel to it, and such things have been declared unconstitutional.
The power in fact comes when the laws are carried out -- the Supremes noted that administrators have some flexibility in making policy choices in executing perhaps somewhat vague laws. This is troubling enough, since such policy choices should generally be made by Congress, the executive just carrying them out.
But, yeah, in some fashion, many laws need to supply some flexibility to those who carry them out. No need to go further though and have the courts determine "executive intent." In fact, some might say this invades executive power of current presidents, who are tied to the signing statements of past presidents. The courts have not taken up Alito's suggestion, but Bush apparently is a fan of the sentiment.
[Justice Scalia, who is a textualist in such matters, surely is no fan of this approach.]