Sunstein tells WashPo *** Bush can kill Americans ***

[pat_k]

From http://www.washingtonpost.com/wp-dyn/content/article/2006/03/24/AR2006032402248_pf.html">Near Paul Revere Country, Anti-Bush Cries Get Louder

. . .Cass R. Sunstein, a professor of constitutional law at the University of Chicago. . . . argues that Bush's decision to conduct surveillance of Americans without court approval flowed from Congress's vote to allow an armed struggle against al-Qaeda. "If you can kill them, why can't you spy on them?" Sunstein said, adding that this is a minority view.

Their fascist fantasy that the Authorization for Use of Military Force (AUMF) turned Bush into a unitary authoritarian executive means Bush can not only spy on us without a warrant, he can kill Americans??!!!

The AUMF nullified the the Fifth Amendment???

No person shall. . . be deprived of life, liberty, or property, without due process of law. . .

Perhaps the Washington Post needs to hear from us. Michael Powell seems to have missed a monumental revelation -- proof positive that the notion that Bush has unlimited unilateral power is not just a desecration of the institutions and principles we established under the Constitution, it is criminal insanity!!

More from the article

. . .Bush's legal advice may be wrong, they say, but still reside within the bounds of reason. . .

The notion that this lunacy is in the realm of reason MUST be stamped out for one and for all.

[yardwork]

1. Well, duh. What are we doing in Gitmo? Our prisons? Death row?

Bushco tapped into the U.S. culture of violence and death.

[pat_k]

2. Killing Americans at Gitmo? That would be news to the public (nt)

[yardwork]

7. The public ought to be paying more attention.

Many of the people in cages in Gitmo are American citizens, and who knows what is happening to them? The few we've let go say they were tortured.

[pat_k]

10. Last I heard, DC Circuit put a restraining order . . .

. . .temporarily slapping down the Bush administration shell game to evade due process.

http://www.brennancenter.org/programs/downloads/omarvharvey-opinion.pdf

They were also slapped down in 2004 with the SCOTUS decision on Hamdi v. Rumsfeld (an American citizen seized overseas as an "enemy combatant" must be allowed to challenge the factual basis of his or her detention before an independent arbiter).

Of course, I wouldn't be surprised to find out that Bush was secretly ordering the assassination of Americans, but I've never heard any administration shill actually claim that Bush has the power to unilaterally decide to kill citizens. (I don't think they have ever conceded he wouldn't have the power either, since they have been allowed to evade answering questions that would put define a limit on the unilateral power they claim.)

Unfortunately for us, far too few have asked point blank things like "Does Bush claim he has the power to put babies on spikes on the White House lawn if he believes doing so is vital to national security?

Sunstein is making a public statement that the right to kill Americans "flows" from AUMF -- and he is saying it matter-a-factly.

As far as I know, this is news.

[leveymg]

3. The University of Chicago has had some odd faculty

Leo Strauss (father of the neocon politics) and Milton Friedman (father of trickle-down economics)

[pat_k]

4. Just found this describing Sunstein as "a liberal law professor and noted

. . .authority on Presidential power."

http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi_1.html

[leveymg]

11. Only by their standards.

Although Posner, who teaches at Chicago Law and serves on the 7th Circuit, is an outstanding legal mind.

[pat_k]

12. I'm not much of a Posner fan.

Like the theory of public choice, which is invoked by public figures to abdicate responsibility for seeking common solutions to problems, Posner's application of economic theory to the law favors expedience over principle.

To defend Bush v. Gore he claims the Court's blatantly unconstitutional intervention was necessary to prevent "constitutional crisis" -- an outcome that had an unknown chance of occurring, an unknown scope, and an unknown level of damage or benefit to the nation.

There can be no justification for violating our right to have confidence in the outcome of our elections, usurping the role of Congress, and putting our Constitution into breach. No matter how scholarly in form or complex he makes it, Posner's rationalization that Bush v. Gore is justifiable must be rejected as Un-American and immoral.

Posner also defends Bush's program of illegal surveillance (WashPo Dec-2005) by focusing on the program's use of the systems formerly known as Total Information Awareness (TIA) to violate our right to privacy and comb through masses of our emails, phone calls, purchases, banking transactions, Internet usage, and other personal data.

Posner asserts that FISA is inadequate to deal with this "new technology." He sidesteps discussion of Constitutionality and completely ignores the fact that Americans unequivocally rejected TIA and demanded that Congress put a stop to it three years ago.

It's bad enough that the executive branch demonstrated their disdain for the will of the electorate when they slapped on new labels and kept TIA going (TIA Lives On, 23-Feb-06, National Journal). We don't need Posner out there asserting his legal authority to excuse the inexcusable and deceive us.

[leveymg]

13. Agree with you about the cases you cite. They seem to be '"outcomes deter-

mined", the very evil that Posner and the other Law and Economics advocates claim their approach can avoid. I guess these cases only prove that some issues are at their root so political that they come down to partisan interests on the bench. If one analyzes which Party buttered the bread of a particular judge, and whose bread has been buttered by that judge's past decisions, one can probably project fairly accurately how each Justice will come down in cases. This is particularly true when the issues -- like election outcomes and government spying -- are essentially political in nature.

When Rawls' "original position" is put aside, as I believe the legal theorists of the Right attempt to do, you come down to power-based jurisprudence that -- when push comes to shove -- is essentially identical to Karl Schmidt's.

It's interesting that those who believe that law can be decided by "non-ideological" quanititative methods have overlooked the work of Nobel Prize-winning economist Kenneth Arrow. Arrow's 1951 book, Social Choice and Individual Values, attempted to figure out through logic whether people who have different goals can use voting to make collective decisions that please everyone. He concluded that they cannot, and thus his argument is called the "impossibility theorem." The implication of this is to law is quite clear to me. Those with money and power use the courts, like every other social institution, to aggregate monopolies. The end result of that process -- the collapse of consensus about legitimate outcomes, call it constitutional failure -- is now clear with the "unitary executive" theory. It's a fancy word for tyrannical executive which, unchecked and unbalanced, wages total war to protect corporate interests. In the end, this aggregation of power destroys the very basis of government, which I would say is cooperation.

The value of public choice and rational choice models is in deciding open cases where there's significant uncertainty about benefits amd outcomes. But, as more power and wealth become concentrated in fewer hands, those open cases become fewer and more marginal. Under these conditions, judicial decision-making becomes thoroughly outcomes determined -- a rubber stamp carried in the back pocket of a secret policeman.

[flamin lib]

5. Well, Bush was told that he could wiretap w/o a warrant and he

did. He was told he could use physical searches w/o a warrant and he did. So what if he assassinates somebody?

We the Dems still say we have to "look into it" and "investigate"?

My party has no courage.

[HamdenRice]

6. Bush gave green light to assassination if Bush says "terrorist"

Cass Sunstein, a liberal law professor is simply reporting the facts:

http://www.guardian.co.uk/waronterror/story/0,1361,582588,00.html
Bush gives green light to CIA for assassination of named terrorists

'Covert killings to take in less important al-Qaida figures'

David Gow in New York
Monday October 29, 2001

President Bush has given the CIA an explicit go-ahead to carry out covert missions to assassinate Osama bin Laden and his supporters around the world, effectively lifting a 25-year ban on such activities.
The US defence secretary, Donald Rumsfeld, confirmed reports of such a move yesterday by telling CNN that the US would be acting in self-defence in carrying out such missions.

The Washington Post reported yesterday that Mr Bush has decided that executive orders banning assassinations since a series of botched attempts in the 1960s and 1970s allow him to single out a named terrorist or terrorists for death by covert action.

more in article

[pat_k]

9. "single out a named terrorist or terrorists" . . .

. . .Somebody needs to ask the question.

Could "a named terrorist" be an American? That is, do you claim the power to assassinate Americans?

[pat_k]

8. Sunstein seems to be a little confused. . .

I've been poking around. Cass R. Sunstein seems to be a bit muddled in his thinking.

Summary of Sunstein's views on Bush v. Gore from The Professors and Bush v. Gore:

In the Chronicle of Higher Education (Jan. 5, 2001), for example, University of Chicago law professor Sunstein declared that future historians would conclude that the Court had "discredited itself" with its "illegitimate, unprincipled, and undemocratic decision." . . .On December 13, the day after the case was decided, Sunstein told ABC News reporter Jackie Judd that the opinion "was a stabilizing decision that restored order to a very chaotic situation." On the same day on National Public Radio, Sunstein observed: "The fact that five of them reached out for a new doctrine over four dissenting votes to stop counting--it's not partisan, but it's troublesome." While he did not "expect the Court to intervene so aggressively," Sunstein allowed on NPR that its decision may have provided "the simplest way for the constitutional system to get out of this. And it's possible it's the least bad way. The other ways maybe were more legitimate legally but maybe worse in terms of more chaotic.". . .

Sunstein had this to say in Echo Chambers

. . .I was called by many radio and television stations during Bush v. Gore; but because I did not favor either side in the post-vote controversy. . .

I've only skimmed "Echo Chambers," but it looks to me like he's giving up on objective reality -- that he explains extreme differences in how people view political events as an artififact of "echo chambers" (Minimizing the fact that, more often than not, one side of a "partisan" debate is grounded in reality, while the other is not.)

This may explain his assertion that the fascist fantasy of an American "unitary executive" with unlimited power (promoted by John Yoo, Alito, Gonzales, et al) is within "reasonable bounds." If everything is opinion, lunacy has the same weight as fact.