Tonight the first votes of the 2008 presidential election will be cast as Iowans caucus, minus disenfranchised members of the military, second-shift workers, and parents who can’t find a babysitter. While most of the mainstream media focuses on the horse race angle of the election- I watched Hardball last night and the only issue I can recall being discussed was Mike Huckabee’s bizarre claim that the way to respond to the assassination of Benazir Bhutto is to build a fence on the Mexican border- two weeks ago The Boston Globe published the results of a survey on executive power that the paper sent to all of the presidential candidates. (Hat tip Arianna Huffington. Glenn Greenwald also wrote extensively about the survey.) The results showed that while the ACLU has taken on the phrase “One more year, No more damage,” there could still be great damage to our system of checks-and-balances if the wrong candidate is elected.
Democrats Hillary Clinton, Barack Obama, John Edwards, Joe Biden, Bill Richardson, and Christopher Dodd and Republicans John McCain, Mitt Romney, and Ron Paul all responded to the questions. Rudy Giuliani wrote a general response but did not answer the questions.
Because the ACLU is non-partisan, you won’t see much commentary here. But the answers speak for themselves.
Issue: Warrantless Surveillance
Obama: The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.
Clinton: No. The President is not above the law.
Edwards: I strongly oppose George Bush’s illegal spying on American citizens. Surveillance that takes place within the United States should be performed with judicial oversight, as the law provides.
Dodd: Absolutely not – I have been a very vocal and early opponent of this Administration’s warrantless wiretapping program and efforts to provide retroactive immunity for the companies who participated. The choice between national security and civil liberties is a false choice. Indeed, our adherence to the rule of law enhances our international standing and leverage, and accordingly enhances our national security. I’ve made it clear that I will return from Iowa and filibuster any bill that makes it onto the Senate floor including retroactive immunity language.
Biden: No. The President is not above the law, he is bound by valid acts of Congress. Our laws state clearly that no one can wiretap Americans without a warrant. By willfully authorizing warrantless wiretaps of Americans, the President violated the law, and he should be held accountable.
McCain: There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is. … I don’t think the president has the right to disobey any law.
Romney: Intelligence and surveillance have proven to be some of the most effective national security tools we have to protect our nation. Our most basic civil liberty is the right to be kept alive and the President should not hesitate to use every legal tool at his disposal to keep America safe.
Paul: Absolutely not.
Obama: No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.
Edwards: George Bush has abused our constitutional traditions in his detention policies and has created a national embarrassment at Guantanamo Bay. Judicial review ought to be restored to the process of detentions. As president, I will not detain U.S. citizens as enemy combatants without charges, and I will close Guantanamo Bay on my first day in office.
Biden: No. The Supreme Court resolved this issue in a case called “Hamdi” in 2004. An American citizen held as an enemy combatant has a constitutional right to due process to determine whether his detention is legal and is adequately based on fact.
McCain: The Supreme Court ruled in 2004 that, under the Congressional authorization of the use of force, the U.S. can hold even American citizens under the law of war if they are enemy combatants. But the Court also said that U.S. citizens must have due process to challenge their detention. And I think that is very important when it comes to American citizens.
Romney: All US citizens are entitled to due process, including at least some type of habeas corpus relief regardless whether they are designated unlawful enemy combatants or not.
Issue: Torture– Can the President use an interrogation technique prohibited by Congress?
Obama: No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.
Edwards: It is hard to believe that the president and his supporters are engaged in a debate about how much torture we should have. The United States should never torture, for several reasons: because it is not the American way, because it undermines our moral authority in the world, because it places our troops at risk, and because it does not work. I strongly oppose George Bush’s possible veto of the Congressional bill prohibiting torture.
Dodd: No, and I was absolutely shocked that Attorney General Mukasey, in his testimony before the Judiciary Committee, said that in certain circumstances could thwart the law. This, and his declaration that he could not say whether or not waterboarding was in fact torture, led me to believe that he would not be the kind of nominee I could support.
Biden: No. The President must comply with all valid acts of Congress. That’s why I’ve introduced the National Security with Justice Act, unequivocally banning waterboarding and other forms of torture.
McCain: No. Article I, Section 8 gives Congress that power. Unless the president chooses to willfully violate the law and suffer the consequences, he must obey the law.
Romney: A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique, especially given Congress’s current plans to try to do exactly that.
Issue: Habeas Corpus– Agree or disagree with Alberto Gonzales that nothing in the Constitution gives a right to habeas corpus?
Obama: Disagree strongly.
Clinton: I disagree with Attorney General Gonzales. I have long believed that the right to habeas corpus offers fundamental protection against unchecked government power. It is a constitutionally guaranteed right. The Supreme Court should reaffirm this principle in the Boumediene case now pending and correct the mistake Congress made when it attempted to rescind habeas corpus through the Military Commissions Act.
Edwards: I disagree.
Richardson: This is clearly wrong. The Framers, in their declaration that habeas may be suspended only in cases of rebellion or invasion, made clear that the Constitution presumes the existence of the common law right to habeas corpus. Any other interpretation is sophistry.
Dodd: I Disagree. Article 1, Section 9 of the Constitution confers the fundamental right of habeas irrespective of Congressional actions to statutorily expand or limit the federal role relative to the states.
Biden: I disagree categorically with Mr. Gonzales. The Constitution guarantees the right of habeas corpus unless in the case of rebellion or invasion it is suspended. My National Security with Justice Act reinforces this Constitutional right by extending by statute meaningful habeas review for all Guantanamo detainees.
McCain: On that one, the Supreme Court just heard oral arguments in the Boumedienne case and it is expected to rule early next year on that question. So I will be interested in seeing how the Court rules.
Romney: The availability and limitation of habeas corpus is governed by current federal statutory law and the Suspension Clause of the US Constitution, Article I, § 9, cl. 2.
Paul: I strongly disagree with him because I think it was absurd. If we can’t deny habeas corpus it infers that you have habeas corpus. So I would strongly disagree with his whole interpretation of habeas corpus. … [As for whether that extends to non US citizens in US custody overseas]. I think that might depend upon the circumstances of declared war, and what the circumstances might be. … [In the case of Guantanamo detainees,] I would think then that we should, under those circumstances, follow the principles of habeas corpus.
The survey contained a total of 12 questions with other topics covered including international human rights treaties, the power of Congress to cap troop deployments, and how the candidates feel about other candidates who did not answer the questions. (Ron Paul had the best answer to that last one- “what are they trying to hide? Why are they embarrassed to answer the questions?”) Fascinating stuff.
Andy in Harrisburg