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John Kasich Nauseating as PR Huckster - Blindly Distorts Truth in Frantic Effort to Whitewash Bush

Reported by Marie Therese - December 30, 2005

This week on the O'Reilly Factor former Ohio Congressman John Kasich subbed for the vacationing Bill O'Reilly. In that role on Wednesday and Thursday nights he engaged in nothing short of a betrayal of his own conservative values as he slavishly defended the indefensible, i.e., George W. Bush's aggressive and unrepentant use of warrantless searches in blatant violation the Fourth Amendment to the Constitution of the United States.

Kasich, as some may remember, was a key architect of the balanced budget amendment and welfare reform in the 1990's. He served for 18 years in Congress, first as a Senator, then as a Congressman. Since leaving government service, he has worked as a Managing Director at Lehman Brothers in their Investment Banking Division. He has also maintained responsibilities across a range of industry groups on which Lehman Brothers focuses its investment banking activities including health care, power and utilities, technology, and financial institutions. He has been or is on the Board of Directors of Worthington Industries, Invacare Corporation, Instinet Group, Inc. and Borland Software Corporation.

In addition he hosts FOX's Heartland show each Saturday and in 2002 founded his own PAC, the New Century Project, which has as one of its stated goals the belief "that individuals, families and communities, not government, hold the keys to implementing new and innovative ideas for America's future." The NCP has offices throughout the United States. In the 1970's he was involved in the formation of the right-wing American Legislative Exchange Council. All in all, quite an impressive conservative resume.

While in Congress, Kasich developed a reputation of being able to work across the aisle to get legislation passed. On the few occasions I've seen him interview former Democratic colleagues on FNC, he maintained a generally cordial and remarkably fair attitude. In fact, Sen. John Murtha ended a December 10th interview on the Heartland show by stating that Kasich was a really good guy (paraphrase).

Which makes what has happened this week so inexplicable - and so damning.

It would seem that, sadly, the FOX News mentality has finally eroded what was left of Kasich's conservative soul. In order to rationalize Bush's illegal wiretapping, he assumed the mantle of deaf-dumb-and-blind Republican Party flack during a couple of segments on the ACLU. Last night, using tried and true belligerent talk show tactics, he made very sure that the FOX vewing audience didn't get to hear the full story from his liberal guest, Bill Goodman, Legal Director of the Center for Constitutional Rights, located in New York. Kasich was in Washington (?) and the conservative guest, Douglas Brinkley, presidential historian, spoke from New Orleans.

He started the segment off by displaying this ad, taken out by the American Civil Liberties Union in the December 29th edition of the New York Times:

bushnixonwiretappingnytadthumb122905.gif

He noted that the ACLU has demanded a full investigation of Bush's wiretapping activities and also filed objections to the training of airport screeners on the grounds that "training screeners to look for suspicious behavior could lead to racial profiling."

Goodman started things off by agreeing with the ACLU ad, saying that "we go to judges when we want to engage in wiretapping and clearly in this instance - many instances it's now been revealed - they did not go to judges. They did it on their own because they were afraid to have a judge, any judge, even a sympathetic court like a FISA court, looking over their shoulders and seeing what they were really up to and we can speculate about what they were really up to."

At this juncture Kasich stated what has become his ritualistic mantra, repeated over and over again, i.e., the FISA court and two other courts have confirmed "that the President has this authority" to engage in warrantless wiretapping when national security is at stake.

Goodman responded, "They only ruled that he has the right to wiretap when he gets a warrant." Kasich immediately jumped in, put his glasses on, looked at a piece of paper and said "No, that's not what they ruled, sir. You don't know ..." Here he stopped mid-sentence, probably because he realized that he would contradict the "dumb interviewer" persona he had adopted just the day before during a different interview, in which he pretended that he really, truly didn't know anything about what the law said on this very subject. Of course, at the time, any educated viewer knew was a sham. Clearly, John Kasich knew what the legal ramifications of Bush's spying were. For him to deny it would be like Santa Claus denying knowledge of Christmas!

From this point on it was downhill for poor Mr. Goodman while Douglas Brinkley walked a razor-thin line between truth and non-truth. Interestingly, once again the "liberal" guest's voice was aired at a lower volume than either the conservative or the FOX News host.

Kasich claimed that this question of Presidential power to wiretap had been "litigated pretty thoroughly" then asked Brinkley for corroboration. Brinkley cleverly answered "Yes, It has" then went off on a tangential discussion about how the ACLU ad was a false analogy because Nixon's situation was different from Bush's, blah, blah, blah.

Brinkley's affirmative monosyllabic response left the distinct impression that three courts upheld the President's right to secretly wiretap Americans under any circumstances. However, the question of the President's "right to wiretap" was not the bone of contention. By leaving out the word "warrantless" Kasich was simply stating the obvious. Brinkley's quick side-step onto the Nixon Presidency served to distract the audience from paying too much attention to what had just occurred. It was verbal sleight-of-hand at its devilish best!

However, Brinkley - a university professor in history and a well-known author - did not allow himself to stray too far afield even to please his FOX masters. He noted several times that Bush made a critical error when he neglected to sign court orders that "may end up hampering him - there may be investigations and he's gonna have to answer for it."

Goodman defended the ACLU's use of the Nixon era abuse of power image, saying that the theory that a President can do anything in the name of national security is responsible for the kind of world we live in today. According to Goodman "What started as a two-bit break-in at the Watergate ended up with the President lying to the American people and ended up with him resigning. And in this case that aggrandizement on the part of a President - because he thought he could do anything if he just called it national security - has resulted in what we now live with today which is, to a large degree, a suspension of the Constitution of the United States."

Kasich denigrated Goodman's response by calling it "hyperbole." Like a broken record he then read synopses of the three court cases that "granted the President this authority [to wiretap]." Only one of the three decision mentioned the words "warrantless search."

Goodman strenuously disagreed stating that the US Supreme Court that ruled that no President has the right to suspend the Constitution even under the guise of national security. As Goodman tried to explain his position, Kasich talked over him, loudly denying that the President had abrogated the Fourth Amendment or the written Constitution, then repeated his claims about the "three cases" yet again,. When Goodman continued to try to engage him on this issue, Kasich would not let him respond. He went on to tell conservative Douglas Brinkley that "speed" was the key word in this case. However Goodman valiantly pushed his way in to make the point that, even if a speedy wiretap was needed, the FISA court was famous for being able to provide warrants in a very short time. Kasich would have none of it, and stuck to his FOX News-GOP talking points, belligerently claiming that the three decisions he'd cited were enough justification for Bush's actions. When Goodman noted that these referred to Nixon, Kasich snapped back, without looking at notes, that this wasn't true of the 1980 and 1982 decisions. [So much for his incarnation the day before as the country bumpkin, who, shucks, y'all, just didn't know the law!]

Historian Brinkley went on to say that if Bush toughs it out, adopts a defensive posture and digs in his heels, it will not sit well with the voting public, implying that he could find himself embroiled in his own version of Watergate. In Brinkley's opinion Bush should just say that he got caught up in the "hurly-burly" after 9/11 and was carried away trying to defend America, he's sorry about not getting the signatures and in the future he will be sure to get court approval.

Kasich - absolutely desperate to justify Bush's actions - fell back on his claim that speed was the reason for the deed. Goodman responded that Bush could have gone to Congress to get the law changed. He also could have gotten warrants up to 72 hours after the fact. But, Goodman noted, Bush did neither of those things and, in fact, stubbornly insists that, as President, he plans to continue to spy on American citizens with no oversight.

Like a robot programmed to repeat the same sentences over and over, Kasich retreated back to his "three court decisions" mantra. Goodman told him again "that is not true." Kasich's response? He said "I think that's where most of the American people are in this country" and then shut Goodman down, focusing exclusively on Brinkley. By the end of the segment Goodman looked totally disgusted and frustrated at being ignored. Had it been me, I'd have made a big deal out of it, ripped my microphone off and stormed off the set. In no way shape or form was John Kasich conducting a "fair and balancced" interview and Goodman knew it.

The former Congressman had his talking points and, by golly, he was going to ram them down the throats of his viewers whether they were true or not.

It's a shame to see a once-honorable man turn into a manipulative talking head who puts the good of a criminal administration above the good of his country.

COMMENT
George Bush has used as his justification for his illegal and disreputable behavior a lengthy memo penned by John Yoo eleven days after Congress refused to grant the President sweeping war powers. Here's the first part of the Yoo memo. It is clearly a convoluted attempt to justify the gathering of extreme power into the arms of one man, the President of the United States, using justifications gleaned largely from Hamilton's Federalist Papers.

As you read it over, imagine your least favorite politican - Dick Cheney, John Kerry, Bill Frist, Hillary Clinton, etc - wielding all this power, then make your decision as to whether or not it passes the smell test! Our founding fathers knew that the health of the nation depended on a system of checks and balances. Since the President controls the military, it is imperative that the most - not the least - amount of restraint should be placed on the Executive Branch. Without those restraints, a President who decided to ignore our laws and who had the support of the armed forces could, in an extreme scenario, take over the government and rule as a monarch. Despite what Mr. Yoo tries to twist it into below, the intent of the first signatories to the Constitution is clear: They threw off the yoke of oppression of the Mad King George. All that stands between this country and a power grab by another King George is a fragile document of yellowed parchment and our historic abhorrence of rule by One. We are The Many and it is Congress that speaks for us. It's time we reminded them who they really work for!

THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM

The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

September 25, 2001

MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Our analysis falls into four parts. First, we examine the Constitution's text and structure. We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad - especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing the executive and judicial statements and decisions interpreting the Constitution and the President's powers under it. Third, we analyze the relevant practice of the United States, including recent history, that supports the view that the President has the authority to deploy military force in response to emergency conditions such as those created by the September 11, 2001, terrorist attacks. Finally, we discuss congressional enactments that, in our view, acknowledge the President's plenary authority to use force to respond to the terrorist attack on the United States.

Our review establishes that all three branches of the Federal Government - Congress, the Executive, and the Judiciary - agree that the President has broad authority to use military force abroad, including the ability to deter future attacks.

I.

The President's constitutional power to defend the United States and the lives of its people must be understood in light of the Founders' express intention to create a federal government "cloathed with all the powers requisite to [the] complete execution of its trust." The Federalist No. 23, at 122 (Alexander Hamilton) (Charles R. Kesler ed., 1999). Foremost among the objectives committed to that trust by the Constitution is the security of the Nation. (1) As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency." Id. (2)

"It is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citation omitted). Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the Nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect national security limited to actions necessary for "victories in the field." Application of Yamashita, 327 U.S. 1, 12 (1946). The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.

We now turn to the more precise question of the President's inherent constitutional powers to use military force.

Constitutional Text. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2, cl. 1. He is further vested with all of "the executive Power" and the duty to execute the laws. U.S. Const. art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States. (3) During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had been long understood to rest in the hands of the executive branch. (4)

By their terms, these provisions vest full control of the military forces of the United States in the President. The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President and that the scope of the President's authority to commit the armed forces to combat is very broad. See, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) (the "Rehnquist Memo"). The President's complete discretion in exercising the Commander-in-Chief power has also been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that, whether the President "in fulfilling his duties as Commander in Chief" had met with a situation justifying treating the southern States as belligerents and instituting a blockade, was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." (5)

Some commentators have read the constitutional text differently. They argue that the vesting of the power to declare war gives Congress the sole authority to decide whether to make war. (6) This view misreads the constitutional text and misunderstands the nature of a declaration of war. Declaring war is not tantamount to making war - indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to make war. An earlier draft of the Constitution had given to Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., rev. ed. 1966) (1911). A supporter of the change argued that it would "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Further, other elements of the Constitution describe "engaging" in war, which demonstrates that the Framers understood making and engaging in war to be broader than simply "declaring" war. See U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."). A State constitution at the time of the ratification included provisions that prohibited the governor from "making" war without legislative approval, S.C. Const. art. XXVI (1776), reprinted in 6 The Federal and State Constitutions 3247 (Francis Newton Thorpe ed., 1909). (7) If the Framers had wanted to require congressional consent before the initiation of military hostilities, they knew how to write such provisions.

Finally, the Framing generation well understood that declarations of war were obsolete. Not all forms of hostilities rose to the level of a declared war: during the seventeenth and eighteenth centuries, Great Britain and colonial America waged numerous conflicts against other states without an official declaration of war. (8) As Alexander Hamilton observed during the ratification, "the ceremony of a formal denunciation of war has of late fallen into disuse." The Federalist No. 25, at 133 (Alexander Hamilton). Instead of serving as an authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. A declaration served to fully transform the international legal relationship between two states from one of peace to one of war. See 1 William Blackstone, Commentaries *249-50. Given this context, it is clear that Congress's power to declare war does not constrain the President's independent and plenary constitutional authority over the use of military force.

Constitutional Structure. Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The Federalist No. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id. at 391. This is no less true in war. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton). (9)

Second, the Constitution makes clear that the process used for conducting military hostilities is different from other government decisionmaking. In the area of domestic legislation, the Constitution creates a detailed, finely wrought procedure in which Congress plays the central role. In foreign affairs, however, the Constitution does not establish a mandatory, detailed, Congress-driven procedure for taking action. Rather, the Constitution vests the two branches with different powers - the President as Commander in Chief, Congress with control over funding and declaring war - without requiring that they follow a specific process in making war. By establishing this framework, the Framers expected that the process for warmaking would be far more flexible, and capable of quicker, more decisive action, than the legislative process. Thus, the President may use his Commander-in-Chief and executive powers to use military force to protect the Nation, subject to congressional appropriations and control over domestic legislation.

Third, the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature - such as the power to conduct military hostilities - must be resolved in favor of the executive branch. Article II, section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. I, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. To be sure, Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the "executive Power" granted in the Vesting Clause to the powers on that list. But the purpose of the enumeration of executive powers in Article II was not to define and cabin the grant in the Vesting Clause. Rather, the Framers unbundled some plenary powers that had traditionally been regarded as "executive," assigning elements of those powers to Congress in Article I, while expressly reserving other elements as enumerated executive powers in Article II. So, for example, the King's traditional power to declare war was given to Congress under Article I, while the Commander-in-Chief authority was expressly reserved to the President in Article II. Further, the Framers altered other plenary powers of the King, such as treaties and appointments, assigning the Senate a share in them in Article II itself. (10) Thus, the enumeration in Article II marks the points at which several traditional executive powers were diluted or reallocated. Any other, unenumerated executive powers, however, were conveyed to the President by the Vesting Clause.

There can be little doubt that the decision to deploy military force is "executive" in nature, and was traditionally so regarded. It calls for action and energy in execution, rather than the deliberate formulation of rules to govern the conduct of private individuals. Moreover, the Framers understood it to be an attribute of the executive. "The direction of war implies the direction of the common strength," wrote Alexander Hamilton, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." The Federalist No. 74, at 415 (Alexander Hamilton). As a result, to the extent that the constitutional text does not explicitly allocate the power to initiate military hostilities to a particular branch, the Vesting Clause provides that it remain among the President's unenumerated powers.

Fourth, depriving the President of the power to decide when to use military force would disrupt the basic constitutional framework of foreign relations. From the very beginnings of the Republic, the vesting of the executive, Commander-in-Chief, and treaty powers in the executive branch has been understood to grant the President plenary control over the conduct of foreign relations. As Secretary of State Thomas Jefferson observed during the first Washington Administration: "the constitution has divided the powers of government into three branches [and] has declared that the executive powers shall be vested in the president, submitting only special articles of it to a negative by the senate." Due to this structure, Jefferson continued, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly." Thomas Jefferson, Opinion on the Powers of the Senate (1790), reprinted in 5 The Writings of Thomas Jefferson, at 161 (Paul L. Ford ed., 1895). In defending President Washington's authority to issue the Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign affairs powers. According to Hamilton, Article II "ought . . . to be considered as intended . . . to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton, at 33, 39 (Harold C. Syrett et al. eds., 1969). As future Chief Justice John Marshall famously declared a few years later, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . The [executive] department . . . is entrusted with the whole foreign intercourse of the nation . . . ." 10 Annals of Cong. 613-14 (1800). Given the agreement of Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently to assert the President's plenary authority in foreign affairs ever since.

On the relatively few occasions where it has addressed foreign affairs, the Supreme Court has agreed with the executive branch's consistent interpretation. Conducting foreign affairs and protecting the national security are, as the Supreme Court has observed, "'central' Presidential domains." Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982). Due to the President's constitutionally superior position, the Supreme Court has consistently "recognized 'the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'" Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. at 293-94). "The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948). This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

Conducting military hostilities is a central tool for the exercise of the President's plenary control over the conduct of foreign policy. There can be no doubt that the use of force protects the Nation's security and helps it achieve its foreign policy goals. Construing the Constitution to grant such power to another branch could prevent the President from exercising his core constitutional responsibilities in foreign affairs. Even in the cases in which the Supreme Court has limited executive authority, it has also emphasized that we should not construe legislative prerogatives to prevent the executive branch "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).

Click here to ead the rest of the memo: US Dept of Justice.

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