I will ask again. Do you agree with the legal theory that comes to conclusions like this?
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
Do you agree or disagree that the President is able to do such a thing?
So what's your beef?
The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action,The Cons ution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.
Reread the thread. It's stated clearly, by many people, many times.
No, I don't agree with torture. That is clearly cruel and unusual punishment and clearly uncons utional. We are not talking about the president violating the cons ution. We are talking about the president not being submissive to congress.
I'm sorry, I don't understand liberal code words. I need a clear factual example.
But that's our WHOLE POINT.
John Yoo, the main man behind the unified executive theory, STATED IN THE INTERVIEW ABOVE, that he could see a reason/justification for the President being allowed to do that LEGALLY.
Now, how would he make such a bold proclamation, you ask? Under the idea that the president, in a wartime or emergency situation, is allowed GREAT leverage in his actions.
Let me pose a hypothetical question to you: If Congress signed a bill explicity stating that a President could not torture a child, could the President say that was an infringement of his Article II powers? Because that is EXACTLY what John Yoo is claiming.
I've seen liberals speak out against TARP. I haven't seen any liberals speak out against Obama cir venting the law by using TARP funds to bailout GM & Chrysler. If the issue for liberals truly is that a president, any president, should not be allowed to cir vent the law then they should speak up here, no matter whether they like that particular law or not. Otherwise it looks like they're playing that "okay for my guy, not okay for your guy" game that infests American politics these days.
If it makes you feel any better, as a 'liberaltarian', I'll denounce TARP and the use of TARP for car companies.
Not sure how exactly, but we ended up agreeing on something.If it makes you feel any better, as a 'liberaltarian', I'll denounce TARP and the use of TARP for car companies.
It only took the end of the American way of life and government to make ya'll agreeNot sure how exactly, but we ended up agreeing on something.
Now you're going off the deep end. First off, the Unified Executive Theory has been discussed by the founding fathers, and supported by the Supreme court. Yoo is hardly "the man behind" the theory.
I cannot see the president saying he has the authority to torture a child, but he still could state that congress has no power to dictate his actions.
I don't give a damn what John Yoo says in a debate that he may have misspoken in. Funny how I can find hundreds of the same lines repeated, but not what is said before or after. Have the debate in full context that you care to share? I didn't think so.
Why are you being a lemming and repeating what the bloggers tell you to repeat? Have a link for the do ent that Yoo authored? Wouldn't that be important? I looked for it, and couldn't find a searchable format.
Aug 1, 2002 - Department of Justice memo to White House Counsel stating that interrogation methods used on al Qaeda prisoners comply with international treaties prohibiting torture
I'm printing these six pages now, and will read it.
Here we go, an HTML extract of the graphical format. Some errors in computer OCR:
HTML recreation of Yoo Memo
There's a difference in the application of the theory. John Yoo was certainly the man willing to push it to its strongest position in recent memory. It's akin to the position that Nixon took... "I'm the President, so it's not illegal."
I don't care if you can 'see' it or not. The question was hypothetical, and simple. Does the President have the right to state he can torture a child, even if Congress passes a law banning it? Does the President have the right to say it infringes upon his ability as Commander in Chief during times of war, or not? It's a relatively simple yes or no question.
Really? You don't give a damn, even though John Yoo was the main legal mind behind the legal advisories given to Bush? Did you go to the link above and listen to the audio? Here's another link, with a longer passage for context: http://rwor.org/a/026/torture-victim...t-advocate.htm
Forgive me if I'm wrong, but weren't you saying that Sotomayer wasn't a good candidate because of all the opinions she had that were reversed? Let's look at wikipedia for works authored by Yoo...
September 25, 2001 Memorandum for David S. Kris, Associate Deputy Attorney General, "Re: Cons utionality of Amending Foreign Intelligence Surveillance Act to Change 'Purpose' Standard for Searches" (signed by John C. Yoo). Claims the US Federal Government's "right to self defense" authorized warrantless searches under the Fourth Amendment. Repudiated.[27]
October 23, 2001 Memorandum for Alberto Gonzales and William J. Haynes, "Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States" (signed by John C. Yoo and Robert J. Delahunty). Claims the U.S. military can ignore several Cons utional provisions: the Fourth Amendment, the Takings Clause, and the First Amendment.[28]Repudiated.[29]
November 15, 2001 Memorandum for John B. Bellinger III, "Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty" (signed by John C. Yoo and Robert Delahunty). Claims that Bush could suspend any provisions he wanted in the ABM Treaty with the USSR/Russia, or any other treaty, without even telling the Senate or other states-parties. Repudiated.[27]
January 22, 2002 Memorandum for Alberto Gonzales and William J. Haynes, "Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees" (signed by Jay S. Bybee). Repudiated.[27]
February 8, 2002 Memorandum ("OLC 62") for William J. Haynes, "Re: (Classified Matter)", by John C. Yoo. Described in court declaration as "prepared in response to a request for OLC views regarding the legality of certain hypothetical activities". ACLU says it "proposes that FISA does not govern intelligence surveillance for mational security purposes because FISA does not include a clear statement of intent to do so." Repudiated.[27][32][33][26]
Etc etc.
Read the above cases. If you're a conservative, how could you agree with a legal theory that nearly always is willing to vest greater power in the executive?
There's no need to apologize for John Yoo. He takes a theory, and then games the system to try to find all the ways to break it. He's a dirtbag.
This has a great example of the bad faith in which Yoo argues. From your link:
"As we have explained elsewhere, in order to violate the statute a defendant must have specific intention to inflict severe pain or suffering – in other words, "the infliction of such pain must be the defendant's precise objective." See Memorandum for Alberto R. Gonzales, Counsel to the President, from: Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under 18 U.S. C. §§ 2340-2340A at 3 (August 1, 2002)."
See what he does there? He twists the wording around. It goes from "having a specific intent to inflict pain" to "the infliction of pain must be the defendant's precise objective". The two things are NOT the same. The first would not allow enhanced interrogation, the second would. (How you ask? Let's assume the purpose of enhanced interrogation is to cause severe pain and/or suffering in order to elicit information. Using the first term, this would be outlawed, as it would indicate a specific intention to inflict severe pain or suffering. However, using the second term, it would be allowed, because the precise objective is to elicit information, and not severe pain and suffering.)
This, among other reasons, is why that memo was repudiated:
- ^ a b c d e f g h i "Memorandum regarding status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Acts of September 11, 2001" (PDF). US Department of Justice Office of Legal Counsel. 2009-01-15. http://www.usdoj.gov/opa/do ents/m...ns01152009.pdf. Retrieved on 2009-03-02.
- http://www.usdoj.gov/olc/18usc23402340a2.htm
I really don't care what his opinion is. I don't like it either. I am not impressed with you side stepping the signing statement argument.
Have you yet come up with a signing statement that is other than President Bush saying he will not let congress dictate his Article II powers?
I'm still waiting...
Arguing what Article II powers are can be a different subject.
You may be missing the abstraction at issue, WC.
Most of the objections relate to the authority relied upon -- despite your assertion that it's well established, the theory of a unitary executive is a clear novelty -- rather than the substance of the signing statements themselves. The practice of signing statements is pretty well established. The main gripe is that Bush used them (some have said he overused them) to bolster new powers under a questionable theory that skews the balance between coequal branches of government.
Then please, show me an example that supports that contention, or are you going to act like another liberal lemming, drinking the Kool-Aid, and repeating the talking points as told to?
Look it up yourself, and think for yourself please.
Please.... If what you say is true, then a such a signing statement exists.
You're still missing the meta-level here. I already pointed out the offending boilerplate. the words *unitary executive* appear throughout GWB's signing statements. These words have a denotation that goes beyond precedent.
You don't see how changing the underlying theory might changes the practice? Or how the signing statements themselves smuggled the underlying theory in, perhaps creating a faulty legal precedent?
Legitimate practices and legitimate pretexts can be used to create illegitimate power under novel interpretations of the case.
Additionally, Bush's repeated refusal to give information to Congress as required by statute breeches comity, the spirit of the law, and over time, may pose a risk to the balance between coordinate branches of government.
Just because there's no smoking gun doesn't make the policy sound, or refute the critics.
At any rate, if Obama relies on a different theory of executive power -- a big if, i might add -- then Obama's signing statements are not the same in their practical effect as Bush's.
If Obama starts asserting this unitary executive bull I'll be on his case about it too.
Just because he doesn't use those words. Did President Bush use those words in his signing statement? What is different about President Obama's second signing statement? He tell congress he will not play their game:
Foreign Affairs. Certain provisions of the bill, in les I and IV of Division B, le IV of Division E, and le VII of Division H, would unduly interfere with my cons utional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises cons utional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my cons utional authority and responsibilities.Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of le II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Cons ution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Cons ution), the specified officers and I shall treat these directions as precatory.
The difference in verbiage is nontrivial even if they aim at similar effects IMO.
WC, show me where I, personally, have decried signing statements point blank.
In fact, SHOW ME ANY ARTICLE that decries signing statements, without specifically mentioning the idea that Bush has tried to lay claim to greater executive power IN GENERAL during his administration, with the wording of these signing statements being an EXAMPLE of that.
Many articles that mention signing statements also show how other Presidents have used them as well.
You're arguing a strawmen. Liberals aren't arguing the fact that Bush used signing statements. Reagan, Clinton and others have as well. They were arguing that some of the statements made during specific signing statements claimed the executive was immune to certain aspects of policy that reasonable people disagree is purely in the executive domain.
Ok, you say you 'don't care' about John Yoo, when he's the very person who's come up with the theory that was used to approve of the legel memorandums that supported these signing statements! Can you not see why his view is important, as it helps to define the legal mindset that Bush et all were working from?
If you disagree with Yoo's theory of strong executive power, then many of the signing statements, and the ideology behind it, you would most likely disagree with as well.
Remember, just because the President declares something to be a province of the executive and executive alone, doesn't mean that it ipso facto is.
Finally, I would not be surprised at all if Obama runs with the "Executive Unitary" theory. He's shown himself to be no lover of sunshine or transparency, and he is all about amassing/keeping executive power.
I can't. You seem to be arguing against their legal use when you don't like the president who used them.I'll bet we could find statistics out there that show under the same cir stances, his usage was less than others. He had a congress trying to tie his wartime powers and he said no. If we eliminated all such instances since signing statements were used to protect Article II powers, I'm pretty sure the numbers would be different.Exactly. How many were used to protect from a majority in congress that hated the president?OK, they are arguing the point then "that's not fair. I don't like it when they can legally be used to do what I don't like" Isn't that childish? Is the usage legal or not? Shouldn't that be the point?No, he just followed others. Did you read the link I posted in Post #86 from the Clinton administration? Here is a small extract of THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS, November 3, 1993:I disagree with some of the things I heard Yoo say. I won't say they are legally wrong, but yes, morally questionable.I agree. That's why I am asking for an example otherwise. I know of none.A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the cons utionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be uncons utional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from uncons utionality; and statements that state flatly that the legislation is uncons utional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.
Thus, the President may use a signing statement to announce that, although the legislation is cons utional on its face, it would be uncons utional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial cons utional challenge, but warned at the same time that certain applications of the act would be uncons utional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid cons utional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them uncons utional, or even to avoid deciding difficult cons utional questions.
More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly uncons utional, and that he will refuse to enforce it. This species of statement merits separate discussion.(6)
In each of the last three Administrations, the Department of Justice has advised the President that the Cons ution provides him with the authority to decline to enforce a clearly uncons utional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by "disregard[ing] them when they are uncons utional." Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)
If the President may properly decline to enforce a law, at least when it uncons utionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an uncons utional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.(10) And indeed, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund, supra, the court cited to and relied upon a Presidential signing statement that had declared that a Congressionally-enacted limitation on the President's cons utional authority to appoint officers of the United States was without legal force or effect. Id. at * 11.
Again, have an example of a such a signing statement? That's what I was going to do. Show why the statement isn't improper. The point is clear and simple. Congress cannot have written laws enforced that hinder a president's Article II powers. Any layman should be able to understand that.
I think he will, however, I think he will do his best in confidential communications with congress telling them he doesn't want legislation that he has to do such. Being of the same mindset as him, I think congress will be careful of such legislation in the future.
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