On Presidential Power-from *The Terror Presidency* by Jack GoldsmithSomervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


On Presidential Power-from *The Terror Presidency* by Jack Goldsmith

8 November 2007 at 2:35:27 PM

I've just started to read this book recently and this set of paragraphs stopped me.

p 35 "OLC also needn't look at legal problems the way courts do. Most Americans (including most lawyers) think the law is what courts say it is, and they implicitly equate legal interpretation with judicial interpretation. But the executive branch does not have the same institutional constraints as courts, especially on national security issues where the President's superior information and quite different responsibilities foster a unique perspective.

What! I believe that most Americans would not cotton to the idea that the executive branch operates outside the courts system. And, after the fiasco of the Bush administration, would one EVER categorize his information as *superior*?

..For many issues of presidential power there are no controlling judicial precedents. The Supreme Court has never resolved whether the President can use force abroad unilaterally, without Congressional authorization.

Why not?

When OLC writes its legal opinions supporting broad presidential authority in these contexts,... they cite executive branch precedents (including Attorney General and OLC opinions) as often as court opinions. These executive branch precedents are *law* for the executive branch even though they are never scrutinized or approved by courts.

Here lies the failure of our democracy. Americans want the law to be the law and the standard that applies to everyone.. NOT excluding the president. If it's that presidential branch precendents have not been examined, seems that it's time for that to happen. Because otherwise, a President issuing his own *law* puts himself outside of *our* law.

One last worrisome detail from p 36.

We tend to forget that in its day the Clinton administration was excoriated for what political scientist David Gray Adler called its "absolutist pretentions" in military affairs. Clinton's OLC wrote several opinions arguing that the President could disregard congressional statutes that impinged on the Commander in Chief or related presidential powers. It signed off on the CIA's original rendition program of snatching people from one country and taking them to another for questioning, trial and punishment. And it approved unilateral uses of presidential military force in Bosnia, Haiti, and Kosovo. The Kosovo bombings were especially controversial because of their scale, because they began without congressional approval, and because they continued in the face of the House of Represenatatives affirmative refusal by a tie 213-213 vote to authorize them. Kosovo was "the first time in our history that a president waged war in the face of a direct congressional refusal to authorize the war", as Adler noted. It also marked the first and only time that a president exceeded the limitations on the 1973 War Powers Act.

The point here is not that that Clinton OLC was just like the Bush II OLC, for it was not. The Clinton OLC tended to invoke aggressive presidential military powers primarily for humanitarian rather than security ends, and its arguments for presidential power were more cautious than those in the Bush II OLC and relied more on congressional authorization. But these differences do not mask the fact that the Clinton lawyers... were driven by the outlook and exigencies of the president to assert more robuts presidential powers, especially during a war or crisis, than had been officially approved by the Supreme Court or than is generally accepted in the legal academy or by Congress.

Remember that Clinton's wife is running for president. How likely might it be that she shares that idea, above?

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