Question about seperation of powers

[Non_Comformist]

Hi all,

Hope you can help me with this. On 60 minutes, Condaleza Rice said that there is a long standing principle that sitting National Security Advisors do not testify before congress and that the seperation of powers needed to be maintained. My question is, forgetting the politics of it, what is the theory behind this principle?

[Cubswin]

OK...i think what you are asking is why are there seperations of power and where do they come from?

Back in the day, one the biggest concerns of the framers of the constitution was the concentration of power in the hands of one person....why you ask? Well that big bad king of england didnt treat anybody well... especially the wee little american colony. Our forefathers saw the problems of a monarchy and wanted to avoid this. The first attempt at a constitution was the articles of confederation. This first attempt at a constitution failed to create a strong enough federal government. Basically, the states were more powerful then any central governing body and did whatever they wanted. Something needed to be done to create a more central government, but one that did not give anyone person too much power. Soooo... poof.... along comes the constitution as we know it today.

The constitution first three articles spells out the powers of the executive, legislature, and judiciary. The framers were careful to define the roles and powers of each of these 3 branches so as to make sure that power didnt fall in the hands of anyone person. In ensure that any branch of the government doesnt become too strong there are certain checks that one branch has over another. For instance, the president can veto legislation passed by the congress. Or the congress can block a judicial nomminee (this is a check of the legislature on the executive). Or the courts can check both the legislature and executive by declaring a law unconstitutional.... ok you get the point.

So when we talk about seperation of powers we are talking about the roles of each branch of government.... and what Condy is saying is that the legislature is over stepping their powers by asking her to testify. The problem is that while the constitution attempts to spell out the roles of each branch of government there are some gray areas. The role of government was much smaller back when the constitution was drawn up and their was no need for a stinking NSA.

So what happens now??? Well, the administration is going to contend that there is no precidence for a NSA to testify and the congress will continue to cry foul. In the end, she will not testify unless she wants to do so.

I hope this all makes sense.... if you want me to explain something in more detail just let me know.

regards
cubswin

[stripsqueez]

[ QUOTE ]
Back in the day, one the biggest concerns of the framers of the constitution was the concentration of power in the hands of one person....why you ask? Well that big bad king of england didnt treat anybody well... especially the wee little american colony. Our forefathers saw the problems of a monarchy and wanted to avoid this

[/ QUOTE ]

i'm up for some pommie bashing but this isnt accurate

the seperation of powers is a concept that evolved from the english common law - it wasnt invented by the people who wrote your constitution it was probably adopted by them from the english model of government and law

dont feel bad - i live in an english colony too

the thrust of what you describe as the seperation of powers is correct...

stripsqueez - chickenhawk

[GWB]

It should be noted that Executive priviledege has been claimed primarily by the White House and not the various cabinet agencies. So Colin Powell will testify under oath, while Condi Rice who is one of the several hundred people who are actually in the White House staff exerts Executive Priviledge.

My closest advisors are in the White House staff, and I need to receive their advice without fear of interference of Congress.

W

[stripsqueez]

[ QUOTE ]
It should be noted that Executive priviledege has been claimed primarily by the White House and not the various cabinet agencies. So Colin Powell will testify under oath, while Condi Rice who is one of the several hundred people who are actually in the White House staff exerts Executive Priviledge.

My closest advisors are in the White House staff, and I need to receive their advice without fear of interference of Congress

[/ QUOTE ]

i'm not happy with the tone of this statement george - i dont know the exact breadth of privelege that extends to the executive in the USA government but i doubt it would extend to most if any business in government agencies - i suspect they didnt "claim" some form of privelege because they simply arent covered by the legal concept

courts dont usually interpret executive privelge broadly - in the words of a famous australian politician "keep the bastards honest"

stripsqueez - chickenhawk

[GWB]

My point was that the vast majority of the Executive branch is not protected by Executive Priviledge (usually), just the President's White House staff of a couple hundred people. Condi Rice for example has no real power in government except as an advisor to the President.

The President can't compel Congress to do his bidding, and the Congress can't compel the President to do theirs. Both the White House and Congress are relatively small organizations, and must be free to operate without control by the other. It is important to not set precedents that will diminish either branch's legitimate independence.

Large government departments like State and Defense are different in the sense that they are not closely tied to any of the 3 independent political branches (Supreme Court is third). Congress has a legitimate oversite role over these, while the President is the "CEO" over them.

[spamuell]

Much as I'd love the UK to take the credit for this idea, the original doctrine of the Seperation of Powers was written by Baron De Montesquieu (I can never spell this name), who was, unfortunately, French.

This was influenced by John Locke though, who I'm pretty sure was English. /images/graemlins/laugh.gif

[Chris Alger]

The constitutional and legal basis for limiting executive accountability to Congress arises in the prospect of Congress using its investigative powers -- which clearly apply to the Presidency -- to cripple the executive's ability to exercise its delegated powers (recalling that all government powers are delegated by the people through the Constitution). But there is no "tradition" of National Security Advisors invoking a blanket right to refuse to testify under oath. (At least two prior NSA's did). If push comes to shove and she's served with a subpoena, Bush could theoretically invoke Execuitve Privilege and refuse to let her testify, but the Supreme Court hasn't acknowledged that any such privilege even exists. (Nixon lost the argument in a decision that seemed to open the possibility a privilege that extended to national security, as opposed to an ostensibly more mudane criminal offenses).

What's interesting, however, is Rice's willingness to testify at all while insisting it be in private. It appears that the only reason to testify in private without an oath would be to shield someone from perjury charges while making statements that one wishes to conceal from the public. Under this circumstance, the usual arguments regarding executive privilege wouldn't apply.

[slavic]

It appears that the only reason to testify in private without an oath would be to shield someone from perjury charges while making statements that one wishes to conceal from the public.

How about switching "while" to "and/or"

As the NSA Condi would certainly have information that could not be publicly stated. If that information was key to the understanding of the committe then speaking in public would be pointless. Since the nature of hte enemy is to use the major news networks as their intelligence wouldn't this make more since?

[Cubswin]

[ QUOTE ]
the seperation of powers is a concept that evolved from the english common law - it wasnt invented by the people who wrote your constitution it was probably adopted by them from the english model of government and law

[/ QUOTE ]

I believe you grossly misrepresented what i said. In no way did I imply that the framers of the constitution invented the concept of seperation of powers... I simply explained why that concept was adopted. This concept evolved from both common law and the work of many great thinkers. By the time the constitution had been drawn up, however, the idea of seperation of power in america had evolved leaps and bounds ahead of the english variety.

[ QUOTE ]
dont feel bad - i live in an english colony too


[/ QUOTE ]

i do feel bad for you....you guys are still in the commonwealth /images/graemlins/tongue.gif

regards
cubs

[Chris Alger]

Your suggestion of an alternative motive doesn't make sense because Rice didn't limit her refusal to testify to classified matters. Obviously, the committee wants to ask her about Calrke's very pubic testimony and his very public book (which, BTW, the White House vetted for classified information before it was published). She doesn't want to do this because refuting Clarke will force her to lie, and public testimony will make her lying a matter of record.

"the nature of the enemy is to use the major news networks as their intelligence"

Huh? You mean they might learn the hidden location of the top secret box cutters? The idea of the mass media as a conduit for intelligence is a right-wing myth. The TV networks have never divulged, and I mean not even once, information that contravened national security.

[Wake up CALL]

[ QUOTE ]
She doesn't want to do this because refuting Clarke will force her to lie, and public testimony will make her lying a matter of record.


[/ QUOTE ]

Same old Alger, always know other peoples motives. What are yours?

[stripsqueez]

[ QUOTE ]
I believe you grossly misrepresented what i said. In no way did I imply that the framers of the constitution invented the concept of seperation of powers... I simply explained why that concept was adopted.

[/ QUOTE ]

you stated that it was adopted/invented because the king of england treated his subjects poorly and that it was desirable to avoid a monarchy - ironic when you consider that the seperation of powers was a concept well founded in english law, i suspect long before your constitution was written

[ QUOTE ]
By the time the constitution had been drawn up, however, the idea of seperation of power in america had evolved leaps and bounds ahead of the english variety

[/ QUOTE ]

i dont know when your constitution was written - i none the less struggle to believe that history will support the idea that america is responsible for the evolution of the concept of the seperation of powers in any significant way - spamuell seems to know a bit about the evolution of the seperation of powers hopefully he reads this and can enlighten us both further...

[ QUOTE ]
i do feel bad for you....you guys are still in the commonwealth

[/ QUOTE ]

your right - i fell bad for me too

stripsqueez - chickenhawk

[Cubswin]

[ QUOTE ]
you stated that it was adopted/invented because the king of england treated his subjects poorly and that it was desirable to avoid a monarchy

[/ QUOTE ]

where did i use the word invented? you really need to stop putting words in mouth and actually read what i wrote. i stated that the colonies didnt like the system that was used in england. they thus decided on a system that emphasized the seperation of powers. the idea of seperation of powers goes way back and predates even english common law... i think plato even vaguely alluded to it in the republic. regardless, i never said that us yanks invented the idea. rather, i gave the reason why we choose to place a high value on it in our constitution.

[ QUOTE ]
i dont know when your constitution was written - i none the less struggle to believe that history will support the idea that america is responsible for the evolution of the concept of the seperation of powers in any significant way

[/ QUOTE ]

ok...let me just illustrate one way in which the idea of seperation of powers were advanced in the US constitution. the UK back then, and still today, made use of law lords. this doesnt seem to support a strong notion of seperation of powers. where are the law lords in the US system... there are none!!!

another example....where is the seperation of powers between the executive and legialature in parliamentary/unitary state like the UK (and australia)? Does not the executives power derive from the legislature? What real checks does the legislature have on the executive.... a vote of no confidence??? whens the last time that happened??? Now is it clear how the seperation of powers were evolved by the american constitution? It should be.

regards
cubswin

[Utah]

She doesn't want to do this because refuting Clarke will force her to lie, and public testimony will make her lying a matter of record.
Speculation and illogical. She has already spent 4 hours with the commission. Hence, she has already lied if she lied. Also, these people are so good at spinnning things that she could easily walk through this.

There is a real seperation of powers issue here. The president needs to be able to discuss things with his advisors without congressional oversight. Do you disagree with this principle??

BTW- the only one who has shown to have lied is..well...Clarke. Its a matter of record. He is either lying now or he lied 2 years ago. That is indisputable.

the TV networks have never divulged, and I mean not even once, information that contravened national security.
You dont know that and you cannot say that. In fact, the head of the air force I believe was fired in 1991 for divulging U.S. air strikes plans on television. This would seem to refute your statement.

[stripsqueez]

[ QUOTE ]
where did i use the word invented? you really need to stop putting words in mouth and actually read what i wrote. i stated that the colonies didnt like the system that was used in england

[/ QUOTE ]

you didnt use the word invented but as i read your initial reply it implied that - my bad if that was my poor interpretation - in any event you stated that it was emphasised because of the poor english system of government which is ironic because the seperation of powers would of been a recognised legal concept in the english system when the american constitution was written

[ QUOTE ]
the UK back then, and still today, made use of law lords. this doesnt seem to support a strong notion of seperation of powers

[/ QUOTE ]

why not ? - i dont see a relationship between the 2 - the house of lords is simply the second tier of the english bicameral system - the english system is evolved from an enormous historical background - that land owners were a part of government is hardely surprising from a historical perspective - that such a system is outdated is debatable but probably right in my view

[ QUOTE ]
where is the seperation of powers between the executive and legialature in parliamentary/unitary state like the UK (and australia)? Does not the executives power derive from the legislature? What real checks does the legislature have on the executive.... a vote of no confidence??? whens the last time that happened???

[/ QUOTE ]

the australian system is more directly modelled on the english system - we have a bicameral parliament and the executive is the governor general who in virtually all respects exercizes his powers in accordance with the direction of cabinet (in accordance with long established convention) - cabinet is the prime minister + other ministers all of whom are members of parliament

your right that america has a more obvious seperation between its executive and its legislature but it doesnt follow that there are more checks and balances on the executive - in fact it seems the urban legend is that the american executive is power run wild

the last time the governor general of australia sacked the prime minister was 1975 - there have been 3-4 succesful motions of no confidence in the prime minister passed by parliament (i think) since the inception of the australian constitution which is about 100 years old

stripsqueez - chickenhawk

[Cubswin]

My original post was suppose to be dumbed down to help those laymen here understand /images/graemlins/tongue.gif I did not intend for it to come off as if the yanks invented the system of seperation of powers. Ill state again that this idea predates English common law and of course predates the American constitution. Ill also state again that the US constitution placed a much greater importance on seperation of powers then did British common law.

The three branches of government in the US are much more seperate and independent then those in the UK. The executive and legislature are basically one and the same in the UK. The executive is formed up of and by the legislature. The PM and other Ministers are not choosen by the people; they are chosen by the party that controls the majority in the house. This is what the most noted British constituional authority, William Bagehot, called this "efficient secret" of the British government. This fusion of the executive and legislature branches of government dictates that there is little seperation between the two.

Looking at the US model we see a much greater seperation between the legislature and the executive. These two bodies are elected independently of one another... which gives way to much greater independence of these two branches. The line between where the executive ends and the legialature begins is clearly lacking in parliamentary forms of government. This doesnt mean that these system are inferior...this simple means there is less seperation between the two branchs.

OK....going back to the law lord issue. This clearly shows the lack of seperation between the legislature and the juidiciary. I am not talking about the lords in general.... i am only talking about the law lords... who exercise great power judicial power. Does not the Lord Chancellor, who is a member of the legislature, also have great judicial powers? To me this illustrates the lack of a clear line between judicial and legislative powers.

Im sure i can think of many more examples of where the lack of seperation is powers is evident in the UK system but i think these two should be quite convincing by themselves.

regards
cubswin

[ThaSaltCracka]

[ QUOTE ]
She has already spent 4 hours with the commission. Hence, she has already lied if she lied.

[/ QUOTE ]
my understanding was the first time she was in front of the commission she was not under oath. The commitee wants here to speak under oath in public. The fact she and the white house don't want her to is very suspicious to say the least.

[Cubswin]

[ QUOTE ]
your right that america has a more obvious seperation between its executive and its legislature but it doesnt follow that there are more checks and balances on the executive

[/ QUOTE ]

I beg to differ. I wrote my senoir thesis on the role of backbench MPs (ie the legislature) and concluded (quite correctly i might add) that there are few checks that they have on the executive. My experience working for a backbench MP in the British House also confirms this. There are a few ways to try to hold the front bench in check but they are quite ineffective. Ministerial question, private members legislation, and backbench debates are 99.9999% fruitless. Ultimately these MPs owe their careers and livelyhood to their party and rarely go against the grain because it might mean they wont stand for election next time around.

If youd like me to discuss the ways in which the legislature in the US can check the executive id be more then happy to do so.

regards
cubs

[stripsqueez]

[ QUOTE ]
There are a few ways to try to hold the front bench in check but they are quite ineffective. Ministerial question, private members legislation, and backbench debates are 99.9999% fruitless. Ultimately these MPs owe their careers and livelyhood to their party and rarely go against the grain because it might mean they wont stand for election next time around

[/ QUOTE ]

in australian politics the "party room" or caucus does have some effective control over cabinet - i'm not sure how the english version differs - presumably there is less precedence for MP's to "cross the floor" - i'll take your word for it

i take your point about the house of lords/privy council blending the lines between legislature and judicary which i forgot about

i was wondering when i read your first reply how it was you got the description of seperation of powers correct in such terms - you dumbed it down well

stripsqueez - chickenhawk

[jokerswild]

[jokerswild]

guess you'll have to stop pretty soon

[Non_Comformist]

Wow, thank everyone for replying. I learned a lot and appreciate the help.

[GWB]

[ QUOTE ]
guess you'll have to stop pretty soon

[/ QUOTE ]

Typical liberal.

Suppress the free speech of all except those that agree with you. I am sure your fellow travelers are proud of you.

What are you afraid of?
Probably afraid that I will win in November.
You are right to be afraid.

W

[Chris Alger]

Regarding her prior testimony, the commission apparently wants to zero in on the discrepancies between her testimony and Clarke's, a subject she prefers to address without being subject to perjury. If you believe this has no bearing on her veracity, fine, it's a subjective call.

[ QUOTE ]
The president needs to be able to discuss things with his advisors without congressional oversight. Do you disagree with this principle??

[/ QUOTE ]
Whether I do or don't isn't the point, it's whether the this principle trumpts the public's right to get good information about an even that, so far, has been used to justify two wars, tens of thousands of casualties, a new wave of terrorism in locales where it was previously unimaginable and world-wide fear and loathing of the U.S. and Americans. IMO it's not even close.

And it's apparently not "congressional oversight," but that of a commission appointed and given subpoena power by the President to investigate the most devastating atttack against the U.S. in over 50 years. If the President believes that a full investigation will reflect badly on his performance in office, this should at least be common knowledge among voters.

A strong record now exists showing that the White House (1) neglected prior warnings of the attack and (2) sought to exploit the attack for unrelated ends, namely the invasion and conquest of Iraq. This is prima facie evidence of abuse of power and creates the possibility that the White House is implicitly colluding with terrorists to advance what would otherwise be an unpopular agenda. Short of evidence that the terrorists worked for Bush, there is no stronger case for turning the White House upside down to get to the truth of the matter. If the White House chooses to cripple its ability to function by stonewalling, as in Nixon's case, then we will have only the White House to blame. (Although we might be safer as a result.

"In fact, the head of the air force I believe was fired in 1991 for divulging U.S. air strikes plans on television."

But that's not an act by the media but a mistake by the government. The originaly poster claimed that "the enemy" tended to rely on the media to disclose what the government would otherwise be able to keep legitimately secret, which is nonsense.

[Wake up CALL]

[ QUOTE ]
A strong record now exists showing that the White House (1) neglected prior warnings of the attack and (2) sought to exploit the attack for unrelated ends, namely the invasion and conquest of Iraq.

[/ QUOTE ]

Errr Chris, you gotta be kidding right? A strong record, PUULLEEAASSEEEEE!!! You have two dissatisfied bureaucrats selling books and naturally you believe them over our duly elected officials. I bet if any Demmie was still in office you would be talking out of your 2nd face.