Attorneys Ask Federal Court to Declare Iraq War Unconstitutional

[Eckhart Tolle]

Attorneys Ask Federal Court to Declare Iraq War Unconstitutional

Tuesday, April 21, 2009

http://www.foxnews.com/story/0,2933,517344,00.html

NEWARK, N.J. —  Attorneys representing a veteran and two mothers of soldiers are asking a federal court to declare the Iraq war unconstitutional.

They said in court Tuesday that former President George W. Bush overstepped his constitutional authority to invade Iraq in 2003 without Congress officially declaring war.

They say that wasn't the intent of the country's "founding fathers" who wrote the constitution more than 200 years ago.

The government argued that courts do not have authority to rule on a political matter.

[DarkKnightNomeD]

yes they f**king do

you cannot go to war unless a declaration of war is Addressed, or stated

its about god dam time, the attorney's bring this to the courts

[Lilly Bighorn]

plaintiff's brief

[Elvis]

Marbury v. Madison (1803)


"In the election of 1800, President John Adams was defeated by Thomas Jefferson, a Republican. The new administration did not take their offices until March of 1801. The Federalists wanted to ensure a continued Federalist presence in the government so they packed the judgeships with loyal Federalist supporters, some positions which had been created for this specific purpose by Congress in 1801. Adams signed the commissions for these at the end of his term. When the new administration took office, the new Secretary of State, James Madison, discovered that some of these commissions had not yet been delivered. President Jefferson, angry with Federalists, ordered that they not be delivered. William Marbury, one of the people whose commission had not yet been received, applied to the Court for a writ of mandamus to force Madison to complete the delivery of the commissions, as per the Judiciary Act of 1789 which gave the Supreme Court this power. The Court found that although Marbury was entitled to his position, they did not have jurisdiction over the case since it came to them on original jurisdiction as per a clause in the Judiciary Act of 1789. This case did not fit any of the types of cases they could except on original jurisdiction as per Article III, Section 2, Clause 2. The Court decided that that part of the Judiciary Act giving them those powers was null and void (unconstitutional). Through this case, the Supreme Court assumed the power of judicial review, the power to declare an act of Congress unconstitutional."

http://library.thinkquest.org/11572/cc/cases/marbury.html

[Elvis]

Article 3, Section 2, Clause 2


"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

http://press-pubs.uchicago.edu/founders/tocs/a3_2_2.html

The Judiciary Act of 1789

September 24, 1789.

http://www.constitution.org/uslaw/judiciary_1789.htm

[donnay]

They said in court Tuesday that former President George W. Bush overstepped his constitutional authority to invade Iraq in 2003 without Congress officially declaring war.

   Say it ain't so!  Bush would never have overstepped his constitutional authority. <Sarcasm OFF>

[Lilly Bighorn]

plaintiff's brief

the hearing was on the issue of whether the court has jurisdiction over the case, considering that it cannot hear political issues. the case for justiciability is made by the plaintiff beginning on page 49 of the .pdf file in the link above. if the court rules in their favor, then it can address the actual merits of the case.

[Monkeypox]

yes they f**king do

you cannot go to war unless a declaration of war is Addressed, or stated

its about god dam time, the attorney's bring this to the courts

Yeah.  How long was Vietnam, and we never declared war.

 

[Elvis]

Violating the Constitution With an Illegal War

by Rep. Ron Paul, MD
Ron Paul in the US House of Representatives, October 3, 2002

"The last time Congress declared war was on December 11, 1941, against Germany in response to its formal declaration of war against the United States. This was accomplished with wording that took less than one-third of a page, without any nitpicking arguments over precise language, yet it was a clear declaration of who the enemy was and what had to be done. And in three-and-a-half years, this was accomplished. A similar resolve came from the declaration of war against Japan three days earlier. Likewise, a clear-cut victory was achieved against Japan.

Many Americans have been forced into war since that time on numerous occasions, with no congressional declaration of war and with essentially no victories. Today’s world political condition is as chaotic as ever. We’re still in Korea and we’re still fighting the Persian Gulf War that started in 1990.

The process by which we’ve entered wars over the past 57 years, and the inconclusive results of each war since that time, are obviously related to Congress’ abdication of its responsibility regarding war, given to it by Article I Section 8 of the Constitution.

Congress has either ignored its responsibility entirely over these years, or transferred the war power to the executive branch by a near majority vote of its Members, without consideration of it by the states as an amendment required by the Constitution.

Congress is about to circumvent the Constitution and avoid the tough decision of whether war should be declared by transferring this monumental decision-making power regarding war to the President. Once again, the process is being abused. Odds are, since a clear-cut decision and commitment by the people through their representatives are not being made, the results will be as murky as before. We will be required to follow the confusing dictates of the UN, since that is where the ultimate authority to invade Iraq is coming from – rather than from the American people and the U.S. Constitution.

Controversial language is being hotly debated in an effort to satisfy political constituencies and for Congress to avoid responsibility of whether to go to war. So far the proposed resolution never mentions war, only empowering the President to use force at his will to bring about peace. Rather strange language indeed!

A declaration of war limits the presidential powers, narrows the focus, and implies a precise end point to the conflict. A declaration of war makes Congress assume the responsibilities directed by the Constitution for this very important decision, rather than assume that if the major decision is left to the President and a poor result occurs, it will be his fault, not that of Congress. Hiding behind the transfer of the war power to the executive through the War Powers Resolution of 1973 will hardly suffice.

However, the modern way we go to war is even more complex and deceptive. We must also write language that satisfies the UN and all our allies. Congress gladly transfers the legislative prerogatives to declare war to the President, and the legislative and the executive branch both acquiesce in transferring our sovereign rights to the UN, an un-elected international government. No wonder the language of the resolution grows in length and incorporates justification for starting this war by citing UN Resolutions.

In order to get more of what we want from the United Nations, we rejoined UNESCO, which Ronald Reagan had bravely gotten us out of, and promised millions of dollars of U.S. taxpayer support to run this international agency started by Sir Julian Huxley. In addition, we read of promises by our administration that once we control Iraqi oil, it will be available for allies like France and Russia, who have been reluctant to join our efforts.

What a difference from the days when a declaration of war was clean and precise and accomplished by a responsible Congress and an informed people!

A great irony of all this is that the United Nations Charter doesn’t permit declaring war, especially against a nation that has been in a state of peace for 12 years. The UN can only declare peace. Remember, it wasn’t a war in Korea; it was only a police action to bring about peace. But at least in Korea and Vietnam there was fighting going on, so it was a bit easier to stretch the language than it is today regarding Iraq. Since Iraq doesn’t even have an Air Force or a Navy, is incapable of waging a war, and remains defenseless against the overwhelming powers of the United States and the British, it’s difficult to claim that we’re going into Iraq to restore peace.

History will eventually show that if we launch this attack the real victims will be the innocent Iraqi civilians who despise Saddam Hussein and are terrified of the coming bombs that will destroy their cities.

The greatest beneficiaries of the attack may well be Osama bin Ladin and the al Qaeda. Some in the media have already suggested that the al Qaeda may be encouraging the whole event. Unintended consequences will occur – what will come from this attack is still entirely unknown.

It’s a well-known fact that the al Qaeda are not allies of Saddam Hussein and despise the secularization and partial westernization of Iraqi culture. They would welcome the chaos that’s about to come. This will give them a chance to influence post-Saddam Hussein Iraq. The attack, many believe, will confirm to the Arab world that indeed the Christian West has once again attacked the Muslim East, providing radical fundamentalists a tremendous boost for recruitment.

An up or down vote on declaring war against Iraq would not pass the Congress, and the President has no intention of asking for it. This is unfortunate, because if the process were carried out in a constitutional fashion, the American people and the U.S. Congress would vote "No" on assuming responsibility for this war.

Transferring authority to wage war, calling it permission to use force to fight for peace in order to satisfy the UN Charter, which replaces the Article I, Section 8 war power provision, is about as close to 1984 "newspeak" that we will ever get in the real world.

Not only is it sad that we have gone so far astray from our Constitution, but it’s also dangerous for world peace and threatens our liberties here at home."

Dr. Ron Paul is a Republican member of Congress from Texas.

http://www.lewrockwell.com/paul/paul57.html

[Elvis]

War Powers of President

"The Constitution divides war powers between the Congress and the President.  This division was intended by the framers to ensure that wars would not be entered into easily: it takes two keys, not one, to start the engine of war.
The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle), Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort), and a sort of "twilight zone" of concurrent powers.  In the zone of concurrent powers, the Congress might effectively limit presidential power, but in the absence of express congressional limitations the President is free to act.  Although on paper it might appear that the powers of Congress with respect to war are more dominant, the reality is that Presidential power has been more important--in part due to the modern need for quick responses to foreign threats and in part due to the many-headed nature of Congress.

The Supreme Court has had relatively little to say about the Constitution's war powers.  Many interesting legal questions--such as the constitutionality of the "police action" in Korea or the "undeclared war" in Viet Nam--were never decided by the Court.  (Although the Supreme Court had three opportunities to decide the constitutionality of the war in Viet Nam, it passed on each one.)

During the Civil War, the Court issued two significant opinions interpreting the war powers.  In the Prize Cases (1863), the Court on a 5 to 4 vote upheld President Lincoln's order blockading southern ports--even though the order was issues prior to a formal declaration of war on the Rebel states by Congress.  The Court found Lincoln's action authorized by a 1795 Act allowing the President to call out troops to suppress an insurrection.  The dissenters argued the President's action were unconstitutional, as a blockade is quite different that an action merely directed at those participating in an insurrection.  Three years later, in Ex Parte Milligan, the Court found unconstitutional Lincoln's order authorizing trial by a military tribunal of Lambdin P. Milligan, an Indiana lawyer accused of stirring up support for the Confederacy.  The Court ruled that civilians must be tried in civilian courts, even during time of war, so long at least as the civilian courts are open and operating.  The Court also found the President lacked authority to declare martial law in Indiana.  Four concurring justices argued that even though the President did not have the power to order a military trial of Milligan in the absence of congressional action, the power to authorize use of military tribunals did reside in Congress under its war power."

"The N. S. A. Controversy: Does the President have the power to wiretap the phone calls of Americans without a court order?
It was revealed in 2006 that the President had authorized, following the 2001 attacks in New York,  the National Security Agency to institute a program to intercept phone calls and e-mails--without warrants-- sent by Americans to persons overseas.  Critics of the program, and most constitutional scholars who have weighed in on the subject, call the program illegal.

In testimony before a Senate Committee, A. G. Gonzales argued that the surveillance program was permitted under a 2001 congressional resolution giving the President the power "to use all necessary and appropriate force" to combat Al Qaeda.  Moreover, Gonzales said, the President, as commander-in chief, had the inherent authority (authority even in the absence of congressional action) to authorize the NSA spying program .  Gonzales faced tough questioning from senators who pointed to a 1978 law (the Foreign Intelligence Surveillance Act, or FISA) that clearly prohibited intercepting the phone calls of American citizens without a warrant from a court.  Generally it is assumed that in the case of a potential conflict, the statute with the more specific language governs.  In this case, critics argued, the specific language prohibiting surveillance without a warrant in FISA clearly should trump the vague language of the 2001 resolution, which addresses use of "force," not wiretapping--and if a later act amends an earlier one, it should say so expressly.   Critics also suggested that the President's argument that he had the inherent power as commander-in-chief to authorize the program was too broad to be plausible."

Power to Suspend the Writ of Habeas Corpus

In 2008, the Supreme Court in Boumediene et al. v Bush considered whether aliens designated as "enemy combatants" and held at a U. S. base at Guantanamo Bay, Cuba had the right to seek a writ of habeas corpus, despite an act of Congress that attempted to suspend that right. The Supreme Court, voting 5 to 4, concluded that they did.  Writing for the Court, Justice Kennedy found that the constitiutional privilege of seeking a writ extended to aliens detained on territory over which the Unied States is the de facto (if not de jure) sovereign and that the review process established for Guantamo detainees was not an adequate substitute for habeas corpus review and therefore violated Article I, Section 9.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm

[Elvis]

Officials Say U.S. Wiretaps Exceeded Law

 
By ERIC LICHTBLAU and JAMES RISEN
Published: April 15, 2009
WASHINGTON — The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

In a statement on Wednesday night, the N.S.A. said that its “intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations.” The Office of the Director of National Intelligence, which oversees the intelligence community, did not address specific aspects of the surveillance problems but said in a statement that “when inadvertent mistakes are made, we take it very seriously and work immediately to correct them.”

The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.

The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.

In recent weeks, the eavesdropping agency notified members of the Congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law, Congressional officials said.

Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.

One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.

The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.

Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law. “We have received notice of a serious issue involving the N.S.A., and we’ve begun inquiries into it,” a Congressional staff member said.

Separate from the new inquiries, the Justice Department has for more than two years been investigating aspects of the N.S.A.’s wiretapping program.

As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress."

http://www.nytimes.com/2009/04/16/us/16nsa.html?_r=1&partner=rss&emc=rss&pagewanted=all

[Elvis]

War Powers Resolution
The War Powers Resolution of 1973 is a United States federal law providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat. The War Powers Resolution requires that the president notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days without an authorization of the use of military force or a declaration of war.

Questions regarding constitutionality
The War Powers Resolution has been controversial since it became law, and every President since its passage has treated it as unconstitutional. The War Powers Resolution has been violated a number of times with little attention by media outlets.
Because it limits the President's authority in the use of force without an official resolution or declaration of war by Congress, there is controversy as to whether the provisions of the resolution are consistent with the Constitution. The reports to Congress required of the President have been drafted to state that they are "consistent with" the War Powers Resolution rather than "pursuant to" so as to take into account the Presidential position that the Resolution is unconstitutional.
One argument for the unconstitutionality of the War Powers Resolution, Philip Bobbitt's in "War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath," Michigan Law Quarterly 92, no. 6 (May 1994): 1364–1400, runs as follows: "The power to make war is not an enumerated power" and the notion that to "declare" war is to "commence" war is a "contemporary textual preconception"; the Framers of the Constitution believed[citation needed]that statutory authorization was the route by which the United States would be committed to war, and that 'declaration' was meant for only[citation needed] total wars, as shown by the history of the Quasi-War with France (1798–1800); in general, constitutional powers are not so much separated as "linked and sequenced"; Congress's control over the armed forces is "structured" by appropriation, while the president commands; thus the act of declaring war should not be fetishized. Bobbitt, also argues that "A democracy cannot ... tolerate secret policies" because they undermine the legitimacy of governmental action."

http://en.wikipedia.org/wiki/War_Powers_Resolution

Separation of powers in the United States

Legislative power

"Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by which he was empowered to selectively nullify certain provisions of a bill before signing it. The Constitution Article I, Section 8; says to give all the Power to Congress. Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers it has all other powers vested in the government by the Constitution.
The President has the responsibility to preserve, protect and defend the Constitution and the Laws of the United States in much the same way as a vassal takes an oath of allegiance to his liege lord. He is delegated authority by and with the advice and consent of the Senate, but the Congress can never give its power away."

http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution

[Elvis]

The Preamble to the Bill of Rights

Effective December 15, 1791

Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

PREAMBLE

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."


"The first ten amendments are "declaratory and restrictive clauses". This means they supersede all other parts of our Constitution and restrict the powers of our Constitution."

"There are people in this country that do not want you to know that these two sentences ever existed. For many years these words were "omitted" from copies of our Constitution. Public and private colleges alike have based their whole interpretation of our Constitution on the fraudulent version of this text. Those corrupt individuals have claimed that the amendments can be changed by the will of the people. By this line of reasoning the amendments are open to interpretation. This is a clever deception. The Bill of Rights is separate from the other amendments. The Bill of Rights is a declaration of restrictions to the powers of our Constitution. The Bill of Rights restricts the Constitution. The Constitution restricts the powers of government. The deception is that the government can interpret the all of the amendments and the Constitution itself. Without the presence of the Preamble to the Bill of Rights this may be a valid argument.
End the deception."

http://www.harbornet.com/rights/lindat.html

[Elvis]

"Our own Country's Honor, all call upon us for a vigorous and manly exertion, and if we now shamefully fail, we shall become infamous to the whole world. Let us therefore rely upon the goodness of the Cause, and the aid of the supreme Being, in whose hands Victory is, to animate and encourage us to great and noble Actions — The Eyes of all our Countrymen are now upon us, and we shall have their blessings, and praises, if happily we are the instruments of saving them from the Tyranny mediated against them. Let us therefore animate and encourage each other, and shew the whole world, that a Freeman contending for Liberty on his own ground is superior to any slavish mercenary on earth."

George Washington, General Orders, July 2, 1776

[Elvis]

bump

[Lilly Bighorn]

great posts, elvis. did you read the plaintiff's brief?

[Elvis]

did you read the plaintiff's brief?

downloaded it but haven't read it yet. thanks for tracking it down.

[trailhound]

If the court cant say the executive branch is breaking the law what check/balance would there be? Surely the court can rule on this. I know you cant try a sitting president but...which reminds me what happened to Stanley Hilton's lawsuit? Last i heard he was in pakistan i think...or was it turkey?  I want to say Pak...anybody?

[Dig]

If the court cant say the executive branch is breaking the law what check/balance would there be? Surely the court can rule on this. I know you cant try a sitting president but...which reminds me what happened to Stanley Hilton's lawsuit? Last i heard he was in pakistan i think...or was it turkey?  I want to say Pak...anybody?

Can't try a sitting president?

Wait, what?

Where is that in the constitution?

[Elvis]

Can't try a sitting president?

Serving the president: when must a president obey a subpoena?
Reason; Nov, 1998   by Keith E. Whittington

"Long after the tawdriness that has become the Clinton administration is forgotten, the effects of the Lewinsky episode on the presidency will still be felt. In his "war" against Independent Counsel Kenneth Starr, the president has deployed every available weapon. A variety of presidential privileges have been dusted off or made up - from privileges of communications with government lawyers or political advisers to privileges preventing Secret Service agents from testifying about what they have witnessed while on duty. The shame is not that the courts have uniformly rejected these claims but that they were litigated in the first place.
Related Results

One significant issue remains unsettled: whether a president is legally obligated to comply with a subpoena. Although it appears that this question will not be answered during the Clinton presidency, current events suggest that the issue will eventually have to be resolved. In 1974, the Supreme Court ordered Richard Nixon to turn over the Watergate tapes, but the Court has not yet required a president to testify in a civil or criminal proceeding. By reaching a voluntary arrangement with the president to testify before the Whitewater grand jury, Starr avoided lengthy litigation, and Clinton avoided another potentially embarassing legal defeat. Starr seemed hesitant to strip away this last vestige of presidential cover, and rightly so. The president's duty to comply with a subpoena raises tricky constitutional issues. As a nation we would be better off if the question were not settled in court.

Thomas Jefferson was the first president to face this problem, and he insisted that the president could not be independent of the judiciary if "he were subject to the commands of the latter" and "if the several courts could bandy him from pillar to post." Similarly, in his Commentaries on the Constitution (1833), Justice Joseph Story concluded that the president must be allowed to perform his duties "without obstruction...accountable only to his country, and to his own conscience."

Yet Kenneth Starr obtained a subpoena for President Clinton to appear before the Whitewater grand jury and withdrew it only after the president agreed to testify. Starr clearly decided that a second appearance by the president was unnecessary, but Clinton's uncooperative behavior before the grand jury must have made that a difficult call.

If a prosecutor believes a president is being uncooperative to such an extent that issuing a subpoena is his only option, must the president comply? How would a president be punished if he refused? Who would put the president in jail for contempt? Such practical questions highlight the difficulty of thinking of the president as if he were a private individual rather than a constitutional officer.

There are strong constitutional arguments on both sides of this issue. Since a refusal by the nation's chief law enforcement officer to obey a court order is deeply troubling, those who value the rule of law might argue that a president should comply with any subpoena. Claiming that the president is not required to obey normal judicial procedures smells suspiciously like the kind of monarchical privilege the Founders rejected.

There is also the general responsibility the president has for guaranteeing the continuation of our constitutional system of government, what Nobel laureate James M. Buchanan has called "constitutional ethics." The president has a constitutional responsibility to uphold the rule of law, and he should testify when called unless there are compelling reasons not to do so.

The president also has a responsibility to faithfully execute the laws. As Harry Truman noted, the buck has to stop somewhere. Richard Nixon acted on this assumption when he fired Watergate prosecutor Archibald Cox after promising Cox the freedom to conduct an independent investigation. Nixon's justification for firing Cox was inadequate, however, and the president appropriately suffered the consequences. The check on his actions, though, was political rather than legal.

Fortunately, presidents (even Bill Clinton) have made arrangements to be deposed when asked. And the extraordinary procedures the courts have employed in those cases underscore the unique status the president holds. Recall that Clinton's grand jury testimony was transmitted from the Map Room of the White House by closed-circuit video, not given before the jurors at the federal courthouse.

Yet federal prosecutors aren't the only persons who may wish to subpoena a president. As a defendant in a treason trial in 1807, Aaron Burr prevailed on Chief Justice John Marshall to subpoena President Jefferson to turn over relevant correspondence. When Jefferson refused to fully comply, the Court backed off, leaving the issue unsettled. The trial pitted Jefferson against two political enemies, Burr and Marshall, so there was room for cries of partisanship on both sides.

But the trial did signal the dangers of the subpoena power. Even when the president has not been the subject of an investigation, litigants have tried to claim his relevance to their own suits. The American judiciary is independent of the executive branch, opening the possibility that hostile judges could use their legal powers to harass and hamper a president, perhaps with the encouragement of partisan litigants."

http://findarticles.com/p/articles/mi_m1568/is_n6_v30/ai_21231185/

[Dig]

Serving the president: when must a president obey a subpoena?
Reason; Nov, 1998   by Keith E. Whittington

"Long after the tawdriness that has become the Clinton administration is forgotten, the effects of the Lewinsky episode on the presidency will still be felt. In his "war" against Independent Counsel Kenneth Starr, the president has deployed every available weapon. A variety of presidential privileges have been dusted off or made up - from privileges of communications with government lawyers or political advisers to privileges preventing Secret Service agents from testifying about what they have witnessed while on duty. The shame is not that the courts have uniformly rejected these claims but that they were litigated in the first place.
Related Results

One significant issue remains unsettled: whether a president is legally obligated to comply with a subpoena. Although it appears that this question will not be answered during the Clinton presidency, current events suggest that the issue will eventually have to be resolved. In 1974, the Supreme Court ordered Richard Nixon to turn over the Watergate tapes, but the Court has not yet required a president to testify in a civil or criminal proceeding. By reaching a voluntary arrangement with the president to testify before the Whitewater grand jury, Starr avoided lengthy litigation, and Clinton avoided another potentially embarassing legal defeat. Starr seemed hesitant to strip away this last vestige of presidential cover, and rightly so. The president's duty to comply with a subpoena raises tricky constitutional issues. As a nation we would be better off if the question were not settled in court.

Thomas Jefferson was the first president to face this problem, and he insisted that the president could not be independent of the judiciary if "he were subject to the commands of the latter" and "if the several courts could bandy him from pillar to post." Similarly, in his Commentaries on the Constitution (1833), Justice Joseph Story concluded that the president must be allowed to perform his duties "without obstruction...accountable only to his country, and to his own conscience."

Yet Kenneth Starr obtained a subpoena for President Clinton to appear before the Whitewater grand jury and withdrew it only after the president agreed to testify. Starr clearly decided that a second appearance by the president was unnecessary, but Clinton's uncooperative behavior before the grand jury must have made that a difficult call.

If a prosecutor believes a president is being uncooperative to such an extent that issuing a subpoena is his only option, must the president comply? How would a president be punished if he refused? Who would put the president in jail for contempt? Such practical questions highlight the difficulty of thinking of the president as if he were a private individual rather than a constitutional officer.

There are strong constitutional arguments on both sides of this issue. Since a refusal by the nation's chief law enforcement officer to obey a court order is deeply troubling, those who value the rule of law might argue that a president should comply with any subpoena. Claiming that the president is not required to obey normal judicial procedures smells suspiciously like the kind of monarchical privilege the Founders rejected.

There is also the general responsibility the president has for guaranteeing the continuation of our constitutional system of government, what Nobel laureate James M. Buchanan has called "constitutional ethics." The president has a constitutional responsibility to uphold the rule of law, and he should testify when called unless there are compelling reasons not to do so.

The president also has a responsibility to faithfully execute the laws. As Harry Truman noted, the buck has to stop somewhere. Richard Nixon acted on this assumption when he fired Watergate prosecutor Archibald Cox after promising Cox the freedom to conduct an independent investigation. Nixon's justification for firing Cox was inadequate, however, and the president appropriately suffered the consequences. The check on his actions, though, was political rather than legal.

Fortunately, presidents (even Bill Clinton) have made arrangements to be deposed when asked. And the extraordinary procedures the courts have employed in those cases underscore the unique status the president holds. Recall that Clinton's grand jury testimony was transmitted from the Map Room of the White House by closed-circuit video, not given before the jurors at the federal courthouse.

Yet federal prosecutors aren't the only persons who may wish to subpoena a president. As a defendant in a treason trial in 1807, Aaron Burr prevailed on Chief Justice John Marshall to subpoena President Jefferson to turn over relevant correspondence. When Jefferson refused to fully comply, the Court backed off, leaving the issue unsettled. The trial pitted Jefferson against two political enemies, Burr and Marshall, so there was room for cries of partisanship on both sides.

But the trial did signal the dangers of the subpoena power. Even when the president has not been the subject of an investigation, litigants have tried to claim his relevance to their own suits. The American judiciary is independent of the executive branch, opening the possibility that hostile judges could use their legal powers to harass and hamper a president, perhaps with the encouragement of partisan litigants."

http://findarticles.com/p/articles/mi_m1568/is_n6_v30/ai_21231185/

I have read this guys writings and he does not seem like a complete fraud but he is totally full of shit with this entire article. I will not belabor the point about all the insanity after JFK (of course this logic stopped a true investigation into JFK).  I would like to emphasis his "evidence" concerning the third president of the United States:

Thomas Jefferson was the first president to face this problem, and he insisted that the president could not be independent of the judiciary if "he were subject to the commands of the latter" and "if the several courts could bandy him from pillar to post." Similarly, in his Commentaries on the Constitution (1833), Justice Joseph Story concluded that the president must be allowed to perform his duties "without obstruction...accountable only to his country, and to his own conscience."

I have no idea how far out of context or just plain stupidity was involved in saying this verifies that a sitting president cannot be indicted for crimes.

Thomas Jefferson believed in the separation of powers (as defined in the constitution) and was concerned with the judicial branch's power to eliminate the executive branch which is very important so he said many things specifically warning about the judiciaryt and non grand jury investigations and non-jury decisions:

The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.." (1820)

"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one....when all government...in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government which we seperated. 1821 (emphasis added)

"The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch."

"...judges shold be withdrawn from the bench whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or fortune, but it saves the Republic..."

"The new Constitution has secured these [individual rights] in the Executive and Legislative departments; but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."

So I say again..."Can't try a sitting president?"

The exact logic used by Thomas Jefferson shows that the people (via grand jury inquiries) need the power to try sitting presidents.  The idea that any person is above the law is completely absurd.  If a president disobeys his oath to defend the constitution (specifically the bill of rights, and as commander in chief, aiding and abedding the enemy), then this is not a constitutional republic but a defacto dictatorship (I personally believe this to be true concerning the wizard oligopoly behind the president, but that has nothing to do with Thomas Jefferson).