The Brain Seizure Cases

Glenn Greenwald does most of the work in destroying Assrocket’s ludicrously tendentious reading of Youngstown, particularly in his utter failure to explain why Truman’s actions were “domestic” and Bush’s are “foreign” (without which he doesn’t have any argument at all), but I’ll add a couple of things.

First, Hinderaker argues that “First, as a threshold matter, it is not clear why precedential weight should be given to a concurring opinion in which no other Justice joined. The opinion of the Court was written by Justice Hugh [sic] Black; it contains no similar analysis. Justice Jackson’s concurrence is entitled to weight only to the extent that its arguments are deemed persuasive.” Well, first of all, Jackson’s concurrence has formed the basis for future opinions, and is oft-quoted because it’s widely seen as describing the extant doctrine effectively. But, second, what Hinderaker fails to realize is that focusing on the Jackson concurrence is favorable to arguments about presidential power. Black’s opinion for the court presents a considerably more narrow and formalistic view of presidential powers; if we apply Black’s opinion, the case for the legality of Bush’s actions becomes even weaker. In addition, he of course ignores the fact that Truman was actually involved in a traditionally understood war with potentially finite boundaries, and the fact that steel production was far more important to the Korean War than the ability to conduct wiretaps without the perfunctory review of the FISA court is to combating terrorism (which is not, in fact, a war as the concept has been particularly understood.)

It should be noted, as well, that Hinderaker’s conclusion–which is the logical extension of his argument–is not that the President acted consistently with FISA, but that FISA is unconstitutional. Like several Bush apologists, he’s arguing that the President’s power to conduct domestic searches in what he considers wartime is literally subject to no checks or regulations. And, again, since the “war on terror” has no end point, this would be a radical expansion of executive power, one that is neither necessary nor desirable.

In other L’Etat, C’est Bush news, Glenn finds DeMaistrian “classical liberal” Jeff Goldstein arguing that the status of the freedom of the press depends on its willigness to present no data or facts that contradict the “objectively” true views of reactionary apoligists for arbitrary executive power.