There's obviously a distinction now that the programs have FISA warrants associated with them, but it's not one I can get too worked up about.
The powers of the executive branch are broader than most realize.
Nothing direct, of course. All that is needed is that politicians know that the likes of the NSA comprehensively spy. These for its is sensible to assume that they could have something, even if one has forgotten it. So that uneasy feeling alone is more than enough for politicians not to rattle cages.
Given my impression that both here in the UK and in the US it seems the response to this entire issue by almost every one in the government, media, and even the comedians and satirists (who, in the UK at least, are often more in tune with reality than any one else), is really muted. It's like every one is trying to make it go away, quickly and quietly. No one wants yo get on the wrong side of the spies.
1) the 30+ year war on drugs, still in effect because the masses believe the illusion that being excessively tough on crime makes for a better society.
2) 12 USC being modified by the Trading With the Enemies Act of 1917 to include "United States Citizen" .
3) House Joint Resolution 192 of June 5th 1933 banning gold and silver as currency, ushering in a bankruptcy with the trimmings of Keynesian Economics .
4) "9/11 changed everything".
5) Most relevant, NSPD-51 pulling all branches of government under the Executive during Bush II , and none of us caring.
Every one of the above is an illusion; handwaving by bureaucrats, that were integral for bringing us to where we are today. Why do you choose to accept/live by the above illusions? because everyone else is?
(Additionally, you may be making an Appeal to Incredulity , if you weren't already aware.)
We're in Obama's 2nd term, this is getting old.
This article doesn't make any claims about anything being Bush's fault.
As far as I can tell, this article is reporting new information about Bush's actions during his presidency. It's being reported now because this information wasn't previously available. And it's only available now because Snowden leaked it.
This is relevant because a creeping erosion needs to be fought differently than something that had a distinct event that caused it.
Second, the article doesn't mention Obama at all. I agree with you that he's just as culpable for keeping things going, but that's not really on topic. The point here is that we have been given a glimpse behind the scenes of a particular moment in time. There's no need to put a partisan spin on that.
I'd suggest that you're the one bringing political spin into the equation.
2) The hypothetical is needlessly dramatic. John Woo's point is that the U.S. courts cannot supervise the President's execution of a war on foreign soil, because the Constitution invests the President with sole power, as commander in chief, of how war is conducted. Crushing a child's testicles is a graphic example designed to invoke an emotional response, but it's logically indistinguishable from any other activity, no matter how minor or how egregious, if the premise is that the courts have no authority to second-guess how the President executes a war. And after all, is it really such a controversial concept? Very few people would argue that the President didn't have the authority to vaporize Hiroshima and Nagasaki with nuclear weapons, without consulting Congress and without being second-guessed by the courts. If he can do that, what's left?
2) There's a distinction between what the President can do when Congress and the courts have not spoken on a topic, and what the President can do when they have. Is it obvious that Congress could not, in principle, forbid the use of nuclear weapons? The government needs to be able to place checks on itself and especially on any individual within it. I would argue for similar reasons that constitutional protections continue to apply in wartime - the last clause in the Third Amendment is pretty toothless otherwise.
People like John Woo argue that the courts were not designed to be the preeminent branch. That is to say, they were not designed so they could second-guess every single action of the Congress or the Executive, even in domains like foreign policy where the Constitution conspicuously gives the President and Congress certain powers but none to the judiciary.
John Woo thinks it's legal for the President to torture children (non-Americans on non-U.S. soil mind you) not because he thinks torturing children is morally justified in some way, but because he thinks that the voting public is the body that is empowered to impose consequences for such actions, not the un-elected judiciary.
People like John Woo argue that audiences like movies with slow-motion doves flying in front of explosions. People like John Yoo are the people we were talking about.
They might very well be able to prevent torture by making it a military crime. There's obviously a spectrum here, as Congress almost certainly couldn't make it a crime to take a particular village as an end run around the President's authority as Commander in Chief. This is not a logic puzzle, it's checks and balances.
Who we elect President matters. This is one reason why.
Congress hasn't declared war in ages.
I'm not as worried about an "official declaration of war" since the Constitution isn't clear on that need. I do wish Congress would grow a set of balls and do what's necessary to rein in presidential power regarding a ridiculous war on something we can't even see, much less defeat.
Then, in case anyone catches on to what they were up to and sues them, lobby Congress to give them all immunity for their previous illegal activities.
Rinse and repeat. Nobody ever gets punished, and their imagination to what they can achieve with technology is the only limit, because they can set up whatever misleading legal structure around it to justify their actions, after the fact.
It seems pretty clear that they have absolutely no respect for the spirit of the law anymore, and they're always seeking for loopholes and twisted interpretations of the law (that they keep secret) to allow them do what they want.
> After more than a decade, opponents of Bush’s surveillance programs have still not had an opportunity to challenge them in court
And this is why America needs a Constitutional Court (not secret) to add another check on the government's power and stop them from passing unconstitutional laws, that can only be verified for constitutionality 10-20 years later, and ruin some people's lives in the process, while growing a monster for decades.
While avoiding broaching the interminable debate on whether or not they're, you know, actually doing their jobs, I thought that was the very definition of SCOTUS.
EDIT: I'm avoiding that debate because ISTM that one's position thereon is most likely a function of their politics, and not of whether or not the sitting justices — let alone the institution, itself — are an adequate implementation of the thing they were intended to be by Article III.
A proper constitutional court (as implemented by many other countries) is much more suited to these kinds of cases, which concern the spirit of Constitution, rather than specifics of harm and injuries to one specific entity.
Courts can strike down unconstitutional sections of law, if they're implicated by a case before them. And the Supreme Court has the final say in a lot of those cases, because they're the final court of appeal. But they aren't a "Constitutional Court" in any direct or immediate way.
Think of it as a filter, that filters out all the "crap"/unconstitutional bills that Congress, either out of stupidity, or intentionally, wants to pass.
But these laws can still be found unconstitutional by normal Courts, or the Supreme Court later. The point is to have this so you don't wait 10 years until you even have a judge say if it's constitutional or not, and to stop an out of control government that thinks it can pass whatever it wants, 2 days before Christmas or in New Year's Eve, when no one is paying attention.
By the time the Supreme Court rules on some of those, a lot of damage has already been done, those people might not even be in Congress anymore (so they don't care what they pass), or they probably passed many more laws such as that by then, too, so the Supreme Court will never keep up.
I guess they are operating under "It's easier to ask forgiveness than it is to get permission"
I've said it before, and it bears repeating: this is a systemic problem. The system is set up so that it is so secret there can be no public oversight. There's no feedback loop. The most you could ask from any president is simply to air it all out in the open and let the public begin a debate. This is something that no president has done so far. I wouldn't hold my breath waiting on it to happen, either.
I'm willing to cut Bush a tiny amount of slack for historical reasons. The US has traditionally temporarily restricted liberties and trampled on parts of the constitution when it was under attack. Therefore, looking at 9-11, there's no reason not to expect the pattern to continue.
The problem here is the word "temporary". 9-11 wasn't just a terrible tragedy that opened a huge war effort that lasted several years and ended. It was used to create permanent changes in the way the entire system worked. In that area -- making it all permanent -- I completely blame Bush and the Congress, neither of which could have fucked things up this much by themselves.
Obama walked into a mess, but he seemed to know he was walking into a mess. Why he didn't actually fix anything is anybody's guess. I'm not buying that he couldn't do it. I just don't know.
I don't want to put the paranoid hat on, but I would note that members of various military agencies have been known to thoroughly "research" Congresspeople and executive branch staff in order to know how to pitch them on various issues. I firmly believe the NSA did not do this, but with all of the revelations lately, it's not beyond the realm of possibility. Can you imagine how persuasive and argument you could make to a Senator, or even a President, if you had all their emails, chat logs, cell phone records, and so forth? Like I said, I don't think it happened. But it could happen, and that's freaking scary.