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Gonzales: Footnote Suggests Bush Doesn't Really Need Patriot Act

By Jeralyn, Section War on Terror
Posted on Wed Jan 25, 2006 at 09:50:46 AM EST
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The Boston Globe today reports on a footnote in Alberto Gonzales' speech:

A footnote in Attorney General Alberto R. Gonzales's 42-page legal memo defending President Bush's domestic spying program appears to argue that the administration does not need Congress to extend the USA Patriot Act in order to keep using the law's investigative powers against terror suspects.

The memo states that Congress gave Bush the power to investigate terror suspects using whatever tactics he deemed necessary when it authorized him to use force against Al Qaeda. When Congress later passed the Patriot Act, Bush already had the power to use enhanced surveillance techniques against Al Qaeda, according to the footnote. Thus, legal specialists say, the administration is asserting that Bush would be able to keep using the powers outlined in the Patriot Act for Al Qaeda investigations, regardless of whether Congress reauthorizes the law.

If ever there was an Adminstration intent on seizing all the power unto itself, this is it. Here's more:

[Bruce] Fein, the former Reagan administration lawyer, said the footnote in the Gonzales memo can only mean that the Patriot Act is irrelevant to the tactics used to investigate Al Qaeda. According to the memo, he said, Bush could continue to use Patriot Act techniques in investigating possible Al Qaeda plots even if Congress lets the Patriot Act expire.

''Under the position they are staking out in the footnote and throughout the memo, the debate over the Patriot Act is superfluous," Fein said. ''The president is flailing Congress for refusing to act on a matter that he says is irrelevant to the war anyway, because he can do all of these things under the authorization to use military force."

[Hat tip Patriot Daily.]

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    Gonzales: Footnote Suggests Bush Doesn't Really Need Patriot Act | 8 comments (8 topical)
    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#1)
    by Dadler on Wed Jan 25, 2006 at 10:05:01 AM EST
    Gonzales is SUCH a lap dog. Why don't they step up and make their real argument? Pretending to care about legislation when it doesn't really exist to you anyway, well, something quite Orwellian about it. And the always scarier notion is BUSH HIMSELF HAVING THIS POWER. He's shown he hasn't the intellectual ability necessary to participate in a high school debate, much less have the power he has now. And I know, I know, those high school debaters are so elitist.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#2)
    by soccerdad on Wed Jan 25, 2006 at 10:06:28 AM EST
    The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts
    [snip]
    However, Bush's recent actions make it clear that he interprets the coordinate construction approach extremely aggressively. In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution -- even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.
    link Read it and weap

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#3)
    by nolo on Wed Jan 25, 2006 at 10:19:26 AM EST
    According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts
    Way to precipitate a constitutional crisis, folks.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#4)
    by squeaky on Wed Jan 25, 2006 at 10:42:25 AM EST
    It is horrible that the president should be allowed a blank check because he got congress to agree to a undeclared war. It gives the president zero incentive to end the "war". The war will be indefinite. In order to "protect America" Bush can cancel elections. Congress is in a tough spot to stop the guy as they will be called soft on terror and friends of OBL. Questions have to be asked, like can you cancel elections if you think that it will protect America in time of war? The horrible destruction we have perpetrated in Iraq is a crime. This is insane and has to stop. I do not understand how a normal thinking and feeling person does not see through the charade; a charade that has only to do with greed and lust for power thinly disguised as saving America and the world from bad guys.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#5)
    by Talkleft Visitor on Wed Jan 25, 2006 at 11:02:03 AM EST
    Now is the time to make sure Congress understands that there is no need to reauthorize the Patriot Act. Get Gonzales over a barrel on his footnote. And someone should track down Yoo and get his take on it. And of course talk about wrt Alito.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#6)
    by Talkleft Visitor on Wed Jan 25, 2006 at 11:06:55 AM EST
    I can't imagine that anyone is surprised by Gonzales' footnote. The administration has argued all along that it's responsibility to protect the nation (not found anywhere in the constitution, btw) trumps both the legislative and judicial branches. It is unclear whether they think they even need the authorization to use force or whether the generic inherent power to protect is sufficient. The authorization was only to go after the perpetrators of 9/11, so they have already gone way beyond it. So I think it is pretty clear they think the congress is useful only to cough up money and the judiciary useful not at all. This is breathtaking, but they have been consistent in this view. As long as there is a threat ("as long as there are people out there that want to kill Americans"), the president thinks he can do whatever he wants to do if he can rationalize that it relates to security. Be afraid. Be very afraid.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#7)
    by owenz on Wed Jan 25, 2006 at 11:24:20 AM EST
    Let's be precise here, folks. Gonzales & friends assert there are three levels of presidential authority. First, there is normal Congressional authority granted to the President vis a vis statutes such as the Patriot Act, FISA, etc. Second, there is power derived from the 2001 Congressional Authorization of force against al Qaida. Third, there is the Yoo Doctrine, which supercedes both #1 and #2, and argues the President has unlimited discretion to prosecute the war on terror without Congressional approval. The Globe article has to do with Argument #2 -- the theory that the Administration received the Authority to conduct operations through the 2001 Congressional Resolution. This theory is completely different from the Yoo Doctrine. Unlike the Yoo Doctrine, it does not claim the President can overrule Congress, but rather, argues that Congress gave the President power through the 2001 resolution. This theory is not a joke. In fact, it is battle tested. The Supreme Court officially approved it in Hamdi, in which the Court held that the President has the authority to detain "enemy combatants" based on the general language contained in the 2001 Resolution. In theory, there's no reason the Court wouldn't apply the same theory to many of the provisions of the Patriot Act. Gonzales's argument really isn't that outlandish, given the Hamdi ruling. Perhaps the bigger question is whether authority derived from the 2001 Congressional Authorization is sufficient to override a specific Congressional act, such as FISA, that specifically proscribes the questionable activity. After all, when a specific statute bars the activity, it's much harder to claim that Congress "gave" the President the authority to conduct that activity through the general language of the 2001 Resolution. Under the old Jackson Steel standard, it was thought that the President's authority was at its lowest ebb when Congress had expressly proscribed a specific activity, as it did with wiretaps through FISA. That said, the Supreme Court has already construed the 2001 Resolution to impart tremendous power to the President. With Alito joining the Court, they may simply follow precedent and say the Resolution also grants the President the power to overrule statutes that contradict this authority. This would essentially throw the ball back into Congress's court. The Court would be telling Congress: if you don't like how the President is using the power you gave him, repeal the 2001 Resolution. The Court knows that the Yoo Doctrine is the White House's fallback position...and if the Yoo Doctrine ever reaches the Court, it could create a constitutional crisis. It is far easier, then, for the Court to grant the President the power he seeks through the 2001 Resolution...which could be repealed when the Democrats are a majority. Question: wouldn't the Court have to deal with the Yoo Doctrine if Democrats became the majority and repealed the 2001 Resolution? Yes...but the Court would be in a far, far, far better position to resist the Executive Branch if it had Congress on its side. If the Court ruled against the Yoo Doctrine now, it would face resistence from two branches of government. If Democrats are in control, it is the Executive Branch that is outnumbered 2 to 1.

    Re: Gonzales: Footnote Suggests Bush Doesn't Real (none / 0) (#8)
    by Dadler on Wed Jan 25, 2006 at 12:03:16 PM EST
    If the Yoo Doctrine is, indeed, the administration's fallback position (their ultimate position), then everything else is moot. They are using an individual's interpretation of the constitution to PROVE they have to the right to interpret (ignore) it as they see fit here, with NO oversight whatsoever. All their talk of anything else, of complying with the law, is just window dressing. They don't think they have to. They're acting. Performing. And not well.

    Gonzales: Footnote Suggests Bush Doesn't Really Need Patriot Act | 8 comments (8 topical)