Saturday, January 21, 2006

The Presidentialist Papers

via The Carpetbagger Report

A guide to reading as they read in the Bush White House f e d e r a l is pronounced like "presidential." In the DOJ they aren't so vulgar and pronounce it "unitary executive" with a strong Britich accent (hold the crown). This really does not overstate the inanity of a White Paper which asserts that a discussion of federal powers (as opposed to state powers) is a discussion of presidential powers as opposed to congressional powers.

You can't make this shit up.

the administration released a white paper insisting that there's nothing illegal about the NSA program.

The Bush administration argued yesterday that the president has inherent war powers under the Constitution to order warrantless eavesdropping on the international calls and e-mails of U.S. citizens and others in this country, offering the administration's most detailed legal defense to date of its surveillance program.

Unfortunately, over the course of 42 pages (.pdf), there's not much in the way of new arguments. Bush has the "inherent" authority to execute a war on terror, Congress' 9/11 resolution said the president could do anything he wanted in this endeavor, yada yada yada.

What I did find interesting, however, is to help find support for its case, the administration relied on the Federalist Papers. Yes, the ones from 1788. From the administration's report:

To carry out these responsibilities, the President must have authority to gather information necessary for the execution of his office. The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be "cloathed with all the powers requisite to the complete execution of its trust"); id. No. 41, at 269 (James Madison) ("Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils."). Because of the structural advantages of the Executive Branch, the Founders also intended that the President would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation's foreign affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) ("this [constitutional] grant of war power includes all that is necessary and proper for carrying these powers into execution") (citation omitted).

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