Not even the Shadow knows.

There has been a spate of stories in recent days endlessly recounting, parsing and debating a long series of statements by Senator McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the President has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.

The whole, sordid timeline is provided in this Jake Tapper blogpost today, in which Jake appends the McCain campaign's latest, even-more-ambiguous flip-flop.

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).

Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Douglas Kmiec is a principled conservative, former head of the OLC under two Republican Administrations. Here is what he had to say about "Law and War":

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted....

Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.

I can't help but wonder if John McCain might not find some real merit in the suggestion. Consider his dilemma. It is clear that Mike Huckabee isn't going to be the nominee for president, but his followers might (legitimately?) feel dissed if he isn't chosen for Veep. At best, they might stay home; at worst, they might vote for Obama and actually put some of the Red States in play, especially if Obama chooses, say, James Webb or Wesley Clark as his Veep. On the other hand,

The blogging mentality, I suppose -- Jack and I were writing similar posts at the same time.

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. In this case, sorry to say, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets.

There has been a great deal of debate, and consternation, in Congress recently concerning the Bush Administration's intention to enter into a a bilateral Status of Forces Agreement (SOFA) with Iraq by the end of July. The Administration has indicated that it does not plan to obtain any congressional authorization or Senate approval for such an agreement. Many legislators believe this would be unconstitutional. So, for example, Senator Clinton has introduced S.2426, which would express the "sense of Congress that any bilateral agreement between the United States and Iraq involving `commitments or risks affecting the nation as a whole', including a status of forces agreement (SOFA), that is not a treaty approved by two-thirds of the Senate under Article II of the Constitution or authorized by legislation does not have the force of law," and that would prohibit the use of funds to carry out such an SOFA that is not such a Senate-approved treaty.

The President just signed the Defense Authorization Act, which has two provisions that are relevant to contractor accountability. The first, section 841, added through an amendment sponsored by Senators Webb and McCaskill, would establish an independent commission to study the waste, fraud, and abuse in wartime contracting. The second, section 846, would improve whistleblower protection for contractor employees who report abuses by contractors.

As Laura notes below, in his most recent signing statement the President has reserved the authority to disregard several "provisions" of the National Defense Authorization Act for Fiscal Year 2008.

Said President Bush to General Musharraf yesterday: "You can’t be the president and the head of the military at the same time."

Of course, under our own Constitution, the President must be the head of the military. Indeed, that very Commander-in-Chief Clause has been the source of many of President Bush's own most aggressive claims of unilateral and unchecked power in the conflict with al Qaeda and the war in Iraq. As Bush himself delightfully puts it in his inimitable, colloquial way, "I'm the commander guy."

No way. In general, the excesses of the Bush II administration can be dealt with without permanently infringing on executive power. You don’t need provocative signing statements to be an effective president. And as Jack Goldsmith argues, referring issues like detainee treatment to Congress can actually enhance presidential authority. But what of a new Clinton administration’s (or any other Democratic candidate, for that matter) stance on executive power generally? The term “unitary executive” is now so toxic that it may have to be jettisoned. But adopting a cautious approach to executive power would simply repeat the mistakes of Clinton I.

In response to questions from Senator Specter concerning when, if at all, the President may rely on his Article II authorities to decline to abide by statutes or treaties, the Attorney General testified this morning that "I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

Jeffrey K. Tulis

Whether Senator Obama has a well worked out domestic policy agenda and a detailed understanding of foreign policy is a lingering concern of democrats who find his inspirational rhetoric short on specific analyses, proposals, and plans. This concern has provided occasion for Senator Clinton and others to revive Walter Mondale’s famous question to Gary Hart, taken from a then popular TV commercial for a hamburger, “where’s the beef?” Obama may be tempted respond to the question by offering detailed counter-proposals to Senator Clinton’s plans for health care, immigration, the economy, campaign finance and any other issue she chooses to highlight. This would be a mistake both as tactical choice in the primaries, and in light of his impressive understanding of the place of the presidency in the constitutional order.

This speech by Senator Sheldon Whitehouse accuses the Bush Administration of dictatorial powers. The Senator read classified OLC opinions that stated that the President is not bound by previous executive orders, that the President can determine for himself how they apply and whether to revoke them, that the President can waive orders by merely disregarding them in practice, and that the Justice Department must obey the President's determinations with respect to the operations of Executive Orders.

Well, Attorney General Mukasey testified that he would try to be less adversarial toward Congress -- less inclined to articulate constitutional objections where to do so would only inflame relations.

Yesterday's signing statement therefore may well be the state of things to come. My colleagues and I have complained that, in earlier signing statements, the President was insufficiently transparent about the nature of his constitutional objections, and unclear about whether and when he would disregard statutory commands on constitutional grounds. The new formulation, however, might well make one yearn for those good ol' days of relative candor in signing statement constitutional objections. Here's how it reads:

Almost assuredly not. In fact, neither Senator Clinton nor Senator Obama is likely to be even halfway to the required total of 2023 delegates by then, and the delegate difference between them on February 6th is likely to be quite small.

Can the President disregard the torture statute, or the Uniform Code of Military Justice, if he concludes that the restrictions in such statutes make the successful prosecution of an armed conflict more difficult? Is FISA unconstitutional as applied to the war against al Qaeda? Can the President disregard the Geneva Conventions? The Habeas Act? Legislative restrictions on detention, interrogation, combat, etc.?

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

As many of you who regularly read my blog know, I'm not big into politics here. (It's a fascinating, but dirty business.) I've written the rare column about it, but I watched the returns on Thursday's Iowa caucuses with some interest, and I thought I'd write something about it, as the 2008 presidential campaigns got officially underway.

As you all know, Barack Obama and Mike Huckabee were the winners on the Democratic and Republican sides, respectively. Obviously both candidates got a huge boost from winning the first major political contest of the 2008 presidential campaign. But I thought some pundits went a little overboard with the pronounciations they were making, especially about Obama.

The headlines -- most of them, anyway -- are saying that Senator Clinton beat Senator Obama 51% to 45% in the Nevada caucus contest today. Except that some reports say Senator Obama "won," 13 delegates to 12. What's up? There's a debate going on over at Matt Yglesias's blog (and elsewhere, too, I venture to guess -- especially among the spinners).

Well, there are at least three different metrics by which today's contests could be evaluated.

Jack and Eric Posner have a new Bloggingheads episode up, dealing principally with Bush's aggrandizements of executive power. Characteristically excellent and provocative, although supiciously truncated at the end. . .

I have some minor quibbles, however:

Jack says at one point that all Presidents since Nixon have claimed that the War Powers Resolution is unconstitutional. To the extent Jack is referring to the principal provision of the WPR, prohibiting the President from engaging in military hostilities for more than 90 days without congressional authorization, the notion that Presidents have uniformly condemned its constitutionality is often asserted, but that don't make it true. The statute is plainly constitutional, in my humble opinion; but more to the point, it's simply not the case that every President has claimed it's unconstitutional. Nixon did so before the law was enacted; Reagan suggested it at one point; and John Yoo (Bush's surrogate, presumably) stated it in his September 25, 2001 memo. But that's it. The Carter Administration, for instance, specifically concluded that it was constitutional, and the Clinton Administration carefully avoided saying otherwise (going to great trouble, for instance, to try to argue that the WPR was satisfied in the case of Kosovo).

Apparently everyone is up in arms over the fact that John McCain was born in the Panama Canal zone in 1936. Is he a "natural born citizen" eligible to be President under Article II, section 1, clause 4 of the Constitution?

I have to tell you, frankly, that whether McCain is "natural born" is the least of our worries. If you are truly an originalist, as I am, nobody is eligible to be president today.

I recently took Ed Whelan's simple one question test to determine whether you are really an originalist and confirmed that, yes, I am one of that proud and hardy band.

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a "natural born Citizen" (or, alternatively, in a provision that long ago ceased to apply to any living persons, "a Citizen of the United States, at the time of the Adoption of this Constitution") How would you figure out what the phrase "natural born Citizen" means?

I'm like, scratching my head. Barack Obama won the Democratic nomination for president, correct? The nomination will be awarded officially by delegates to the Democratic National Convention, the delegate selection process is over, and the majority of the delegate votes at the convention belong to people who will vote for Obama. Ergo, QED, therefore, ipso facto, a fortiori and you can take it to the bank, Senator Obama will be the nominee.

So Hillary Clinton takes the occasion to announce:

She is the candidate who will be the best president;
She is asking people to continue to donate to her campaign;
She will decide on the future of her campaign in the coming days, based on what the people who voted for her want her to do;
That the voters of South Dakota have had the last word in the primaries, even though the polls in Montana were still open at that very moment;
That more people voted for her than had ever voted for a candidate in a primary -- even though more people voted for Obama than for Hillary Clinton.

Dan Froomkin's blog for the Washington Post asks "Are We Closer to War?" The question, and most of the post, is sparked by the unceremonious dumping of Adm. William Fallon as head of the overall Middle East (and Afghanistan) command following his comments in an Esquire article about the unwisdom of going to war with Iran. Yes, I know that Adm. Fallot "voluntarily" resigned, but only after, apparnetly, Secretary of Defense Gates stopped returning his calls. Froomkin suggests a linkage between the Israeli attack on Syria (to smoke out the defensive electronics of recently acquired equipment from Russia) and the Cheney trip to the mideast re the possibility of a new war.

In a word, no.

It is true that the Administration's most extreme theories of the Presidency have been rebuffed both in the courts and in public opinion. But the more important question is whether the next President will find him or herself significantly limited in what he or she seeks to do because of the Bush Administration's failures. The answer to that question is: almost certainly not.