The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.

[babylonsister]

The Candidates on War Powers, Executive Privilege, Signing Statements, Etc.
Marty Lederman


I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004.

Some highlights:

On the Democratic side, Senators Clinton and Obama both disclaim any presidential authority to disregard statutes and treaties such as the torture act, FISA, statutes imposing troop limits, and the Geneva Conventions. Senators Biden and Dodd, and Governor Richardson, agree, except that Governor Richardson adds that the President can disregard statutory limits "in some limited circumstances, such as where it is necessary to protect the troops on the ground or to repel an attack not contemplated by the congressional directive." Senator Edwards strongly believes that President Bush should not have disregarded (or threatened to disregard) such laws; but he does not quite clearly answer the questions about constitutional power.

Senators Clinton and Obama both state that the President does not have the inherent constitutional power to unilaterally take military action against Iran, including strategic bombing, in the absence of an imminent threat of attack on the U.S. or its citizens. Senator Biden and Governor Richardson agree. Senator Dodd does, too, but adds that the President can act unilaterally if there is an imminent threat to the "national security" of the U.S. or its allies. Senator Edwards does not answer the question directly, but opposes the use of force in Iran.

Interestingly, both Senator Clinton and Senator Obama -- as well as Senators Biden and Dodd, and Governor Richardson -- answer "no" to the question whether the Constitution permits a President to detain U.S. citizens without charges as unlawful enemy combatants. Senator Obama qualifies that the President has no such "plenary" power. To the extent any of the candidates is here suggesting that such detention would be unconstitutional even where Congress has authorized it, such a view would amount to a dissent from the Supreme Court's holding in Hamdi -- perhaps on the Suspension Clause grounds expressed by Justice Scalia, or perhaps because of the Treason or Due Process Clauses (or some combination thereof). But the Q's and A's on this point are not precise enough to nail this down.

Senators Biden and Dodd, and Governor Richardson, like John McCain (see below), state that they would never issue signing statements with constitutional objections to statutory provisions. I think this is a mistake, and that the views of Senators Clinton and Obama are closer to the proper mark.

As for the Republicans:

more...

http://balkin.blogspot.com/2007/12/candidates-on-war-powers-executive.html

[JDPriestly]

1. Wrong! Here is what Edwards actually says on these issues.

America must do whatever it takes to defeat terrorism, but securing a lasting victory will take moral as well as military strength. President Bush's failure to respect the Constitution and our commitment to the fundamental rule of law has badly damaged our security and our standing in the world. President Bush has sent a message that torture and other human rights violations are acceptable, creating a precedent of disregard for the law that is being exploited by terrorists and repressive governments across the world. We must restore our moral leadership in the world, and we should begin here at home. If we want to spread democracy abroad, we must strengthen democracy in America, including our constitutional freedoms and the rule of law.
Say No to Torture

The Bush-Cheney Administration has undermined our standing in the world and endangered our own troops by sanctioning the use of interrogation techniques long considered torture. Edwards will protect our troops and our values by upholding the Geneva Conventions anywhere American security forces—military or civilian—are engaged. He will issue an executive order setting clear guidelines for interrogations and prohibiting torture. He will also ban the shameful practice of outsourcing torture to other countries through "extraordinary rendition."
Restore Habeas Corpus and Shut Down Guantanamo

The Bush Administration has claimed the power to seize and indefinitely detain anybody it labels an "enemy combatant" with no due process and no lawyer, even if they were seized here in America. It built a prison at Guantanamo Bay outside the reach of our courts, creating a symbol that galvanizes our enemies and alienates our allies. As president, Edwards will shut down Guantanamo and work to resolve the status of the detainees, hundreds of whom have been held for years without being charged. He will also restore the writ of habeas corpus to reinstate judicial review of detention, rather than allow unchecked executive power.
Protect Americans' Privacy and Freedom

Our government should protect the privacy, communications, and personal records of Americans—not spy on them without court supervision as the Bush Administration has done. Edwards will end the warrantless wiretapping of Americans' phone calls and e-mails and the data-mining of Americans' communications and personal records, restoring judicial review to surveillance of American citizens. He rejects retroactive immunity for telecommunications companies. He will fix the Patriot Act by restoring important safeguards to the provisions most susceptible to abuse: the "sneak-and-peek" delayed-notice searches, National Security Letters, and the business and library records provisions. He will also end racial profiling by law enforcement.
Defend the Constitution

Edwards will end the practice of issuing presidential "signing statements" that claim the administration can ignore the law. He will respect the proper roles of the Congress and the courts. He will not shroud the actions of the White House in secrecy. He will not abuse the executive privilege to hide information from Congress and the courts. And he will not interfere with the professional judgment of attorneys at the Justice Department or impose a partisan agenda on their interpretation of the nation's laws and Constitution.

http://www.johnedwards.com/issues/civil-liberties/

I wonder what questions were asked. It might be that the questions were vague or ambiguous and that John Edwards' lawyerdar answered them like any lawyer would answer vague and ambiguous questions -- either with objections or with vague and ambiguous answers. Answering vague and ambiguous questions gets you into trouble. John Edwards is not lured into flytraps very easily, but his stances on human rights and constitutional issues are beyond reproach. The article is extremely unfair to John Edwards. The author should have taken the time to visit the John Edwards website before publishing an article in which he summarizes answers we never read to questions we never read and thereby puts his own words into the candidates mouths.

[hayu_lol]

2. Interesting that Edwards buries the answers in a literal barrage...

of persiflage.

Words, give them enough words and no one will ever understand the answers. Three attorneys give answers, two are right to the point and Edwards appears to be having an attack of swamp gas.

[sjdnb]

3. Just read the paragraph titles - and took about 30 seconds to interpret for you

Say No to Torture - Translation: No torture, no "extraordinary rendition."

Restore Habeas Corpus and Shut Down Guantanamo - restore the writ of habeas corpus (legal action that allows someone to ask a court to review the charges against them and determine whether or not there is sufficient evidence to keep them detained) to reinstate judicial review of detention, rather than allow unchecked executive power.

Protect Americans' Privacy and Freedom - No "sneak-and-peek" delayed-notice searches, National Security Letters, and the business and library records provisions. He will also end racial profiling by law enforcement.

Defend the Constitution - end signing statements, restore congressional oversight, politicize - twist the arm' of the Justice Department, hide behind Executive Privilege.