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Other Things Being Equal, the President Prefers Not to Break the Law

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Here is how Paul Butler, a former federal prosecutor and a special assistant to Donald Rumsfeld at the Pentagon, defends the Bush administration against the charge that it avoids legal challenges to its anti-terrorism policies by switching tactics at the last minute:

You do have to ascribe some good faith. The government uses presidential authority when they think it's necessary and the law does not provide the specific authority they need. If there is a road that can be taken, operating according to statutes or putting people into the criminal justice system when that makes sense, they will do that.

So the president is happy to follow the law as long as it gives him the authority he wants. He goes outside the law only when he thinks it's necessary. This is called "good faith."

The really sad thing is that Bush does not seem to meet even this pathetically low standard. For years he had the National Security Agency violate the Foreign Intelligence Surveillance Act by monitoring international communications of people on U.S. soil without warrants, supposedly because getting court approval would have been too cumbersome. This week, with court challenges and congressional hearings pending, his administration announced that the necessary surveillance can be conducted lawfully after all.

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  1. Other things being equal, Patrick Leahy prefers to chair the Judiciary Committee.

  2. This week, with court challenges and congressional hearings pending, his administration announced that the necessary surveillance can be conducted lawfully after all.

    Of course, they still insist that warrantless surveillance was lawful all along.

    Anyway, there is the question of whether the Admin has now sought a “program warrant” in a one-time request, or whether they will seek individual warrants on a case-by-case basis. Based on their complete record and their refusal to provide the FISA order to Congress, I think it’s safe to assume they’re still breaking the law.

  3. Tim,

    IANAL, but I’ve heard that a “program warrant” would not be allowed as the FISA statute currently stands and it would need to be amended. This will get interesting.

  4. Fine, I’ll ascribe SOME good faith to it. How about one-scintillith of an iota?

  5. norbizness,

    Is that the homeopathic version of good faith?

  6. All other things being equal, I prefer to have people give me their money so I don’t have to rob them.

    Gonzo the AG this week claimed that the Bill of Rights doesn’t necessarily guarantee habeas corpus, but only says it can’t be suspended. Which means we don’t have habeas corpus, so it can’t be taken away. I think.

    Seriously, what law school would claim this man as an alumni?

  7. There has got to be a sliding scale between good faith and competence.

  8. I cannot stand Bush or his goofy theories on executive power, but I think a more charitable reading of the included quote should be given. It seems to me that what he is saying is “the President has constitutional authority to do certain things even if they are contrary to statute, but it is more politic for him to work within existing statutes to achieve his goals when possible.”
    I just don’t think the President has the constitutional authority his supporters think he does…

  9. Ken, Isn’t that saying Bush is above the law?

    I wish I could do certain things contrary to statute, but I would get thrown in jail.

  10. TrickyVic,
    You aren’t the President, so your inherent authority argument is a bit weaker than Bush’s.

  11. “He goes outside the law only when he thinks it’s necessary.”

    Isn’t this what we all do?

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