The powers of Congress described in Article I Section 8 read in part: To raise and support Armies…To provide and maintain a Navy…To make Rules for the Government and Regulation of the land and naval Forces…. all of which makes it pretty clear that Congress has power over the military.

Thus, when the President assumes the role of Commander-in-Chief, he is assuming the top position in an organization which is subordinate to Congress. The only way in which this subordination can be squared with the separation of powers is by assuming that the President as C-in-C is no longer functioning as President, which is why I say it’s a separate job whose only qualification is that its holder is also the President.

So the President as C-in-C has less autonomy than he has as plain President; and his powers as C-in-C have no bearing on his powers as President because they’re different jobs.

Hope this helps.

Can you please elaborate further on the Commander-in-Chief role and what it means? I don’t udnerstand what you mean that it’s a congressional role.

Thank you.

Voila:
See Brad Delong on Andrea Mitchell on Christine Amanpour.
http://www.typepad.com/t/trackback/3970978

JE: How about “The Trial of Billy Jack?”

Good point, otto. And given both this administration’s attitude, and the fact that insiders seemed to have objections, the only reason that they wouldn’t have is that they were too busy spying on Democratic politicians.

You have no way of knowing whether it is or not, person…that’s the whole point of the discussion. You have absolutely nothing on which to base your belief, other than the say-so of an administration that has repeatedly shown both the willingness and the capacity to lie in the furtherance of its political agenda.

Jesus. Remember when the folks on the right used to strut and crow about being the “realists”?

I am a little disturbed by this line of reasoning. There is a tendency for all arguments against this policy to be made on procedural grounds (I think MY and Josh Marshall have done this too) but backing away from making any argument that FISA should be restrictive. Even though the procedural/constitutional interpretation arguments are vital, arguing only on procedural grounds but yielding consistently on the substance will have little bite – like the many conservative commentators who said that the Massachusetts supreme court was wrong to impose gay marriage but could not bring themselves to say that gay marriage is wrong. It’s a weak position in both cases.

If it turns out that escaping FISA was used to spy on US academics or journalists etc, then of course the substantive argument will be right back in play. Dont yield on it yet.

In 1940, President Roosevelt authorized FBI wiretapping against “persons suspected of subversive activities against the United States, including suspected spies,” requiring the specific approval of the Attorney General for each tap and directing that they be limited “insofar as possible to aliens. ” 68
This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping. 69 However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to “intercept and divulge” communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added] 70 Attorney General Jackson’s questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts. 71
Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was “of considerable importance” because of the “gravity” to “national safety” of such offenses as espionage and sabotage. 72 Apparently relying upon Jackson’s statutory interpretation, Congress then dropped the matter, leaving the authorization of wiretaps to Executive discretion, without either statutory standards or the requirement of a judicial warrant. 73

_

For those at home, that’s the same Jackson who was quoted above, in comment 2. Everything old is new again, except, in my view, the legal interpretation is less strained, and this time the president has political opponents less concerned with the threats facing the nation.

Still, Brendan’s reference to the ‘will to do what has to be done’ does have the whiff of fascism about it, so we must be ever vigilant against his type.