You maybe right, I'm not sure what the word is when it comes to presidential precedent. I do know that the first Dubyuh (Washington) was hyper-aware that anything NOT specificially mentioned in the Constitution, that he did as an official act as president would establish precedent. And he was right.

The specific duties of the president outlined in the Constitution ain't much. It's often the unstated portions that define the president's powers both in limit and reach. Like the unwritten "Executive Privilege." Extraconstitutional but something that presidents jealously guard, regardless of party.

Bush is claiming the precedent of Carter and Clinton. (Which begs the question of why did Reagan not assert this power. He was the raving warmonger).

Presidential precedent doesn't work the same as court precedent. It can be overturned by public opinion or by Congressional legislation or by the courts.

It will be interesting to see how this one unfolds.

Bot

BOB SCHIEFFER (host): Does he have that authority, Senator?

GRAHAM: If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act was -- created a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don't know of any legal basis to go around that. There may be some, but I'm not aware of it. And here's the concern I have. We can't become an outcome-based democracy. Even in a time of war, you have to follow the process, because that's what a democracy is all about: a process.

Well,well well, let's see what happens next.

A lawyer will always say that a court is necessary. They are the hammer, every problem is a nail.

Well you got your precedent and then you got your legal precedent. I'm not sure there is a Presidential precedent, but if there is it wouldn't come under legal precedent unless he was won of those "President for Life" types, which would set a precedent in this country. It seems pointless to not comply with a law established to allow the very same activity unless it somehow then becomes a matter of public record which would blow the whole value of secretly doing anything.

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When will the other shoe drop?

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Which other shoe? There've been enough shoes dropping to thrill a Philipine centipede.

More info on the alleged activities: From the NYT

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

Any 'officials' quoted for attribution?

Bot

This is typical newspaper stuff these days: (quoted from above)

1. U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

2. Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

In #1 resignation is tendered without explanation.
#2 Judge privately expressed deep concern about...

It is pure supposition that the two things are related and proves nothing whatsoever about the Judge, the President, wiretapping, or anything else. But many read it and suddenly an inferrence becomes "fact"

LAZY SLOPPY REPORTERS with a political axe to grind. Bah humbug.

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The NYT..........how about picking a place that doesn't have Bias as their middle name....

The NYT is the northern clearing house for DNC propaganda...and everyone in the Country knows it. They never stop to check what they print......much like CBS....

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Good point. What presidents do becomes part of the legal tradition that courts consider in deciding individual cases. So, precedent is probably the proper term. On the other hand, if what Clinton did violated a statute, then that particular precident should be given no weight by any court who has to weigh in on these issues, IMHO.

I guess I can argue on both sides to some degree, but my heart is against the president's precedence. I hate the idea of the president having some unchecked power to look into the lives of private citizens. That just plain strikes me as wrong. Our whole theory of divided government is to prevent government from infringing on personal liberty and this precedent extends and establishes the Executive Branch's power over us.

So my (weak) argument in support of this President is as you said, "Jimmy did it, Billy did it, so what's the problem?" I think this gets him off the legal hook. But for me, it jams the sharp point of the hook deep into the heart of what it means to be a country founded on liberty for all. Time for Congress to step in and make a good law for us. I don't think they'll do it unless there is a groundswell of resentment by the people. To me this shouldn't be a partisan issue, it is an issue of civil liberty and government intrusion.

OTOH, I do not want to extend these civil liberties to non-citizens. I have no problem with the Executive snooping non-citizens either abroad or domestically. If they don't like it, show them the door.

Bot

There is actual legal precedent in this area. Truman tried to nationalize the steel plants during the Korean war. There was a case and if I'm not mistaken the holding was that the president cannot act where congress has already exercised authority. Congress had passed some legislation regulating the steel insdutry, and therefore the pres couldn't assume authority. In this case congress has passed legislation regulating wiretaps, even set up a special court, so I think the law is against Bush.

Good point. And you have to wonder why would they not get the FISA Courts approval, when that approval is virtually assured?

That sounds right to me. A basic rule of statutory construction is that specific terms override general terms. The specific prohibitions in FISA override the general language of the statute authorizing W to take action in Iraq.