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Weak Defense +
Billmon:
The Federales
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Adding another thought.
Bush’s argument: We have to destroy the constitution in order to save it.
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Bush’s defense for breaking the Foreign Intelligence Surveillance Act (FISA) law does not make much sense.
He and his people come up with two arguments:
1. The FISA process is too slow.
2. The president has the constitutional power to do so bacause:
2a. – he is commander in chief and the nation is at war and
2b. – congress gave him the authority to use military force after 9/11.
No. 1 is bs, because FISA allows for immediate wiretapping and gives 72 hours to get the judge’s consent. During the years the judge denied surveillance only in one of thousand cases.
For no. 2 someone with real legal knowledge will have to deconstruct that defense in detail. But I doubt that lawyers and courts will agree that the CiC’s power, even if it could possibly include legal power for renditions outside the U.S., would be applicable to a pure domestic law and process.
To blame congress for giving him such power is a much too wide read of that resolution and I doubt that even his own party folks will follow him there.
The whole story stinks just because of 1. There is no reason to circumvent the FISA process unless someone plans to do and does something that is obviously illegal under FISA and would never get a judges consence.
Circumventing FISA does indeed harm any further legal processing of anybody caught in the process. There is some other reason behind this. Spying on the press (the NYT phoning their Baghdad bureau?) or spying on diplomats (Powell talking to someone in Europe?) are possibilities.
I have hesitated to comment on this latest outrage because I was both too angry and too depressed to, I feared, think clearly. Simply put, Bush’s admission of spying on Americans without authorization by a court represents possibly the greatest violation of the U.S. Constitution in American history. Bush’s actions are in direct contradiction to the Fourth Amendment, which explicitly requires a warrant before police can search a person’s home. The Fourth Amendment protections similarly apply to communications, so that wiretaps, etc. always require a warrant.
Bush has offered two rationales for his action. The first is that he has implicit authority as Commander-in-Chief to do this. The right wing is enamored of this authority. The Constitution states simply that the President shall act as commander-in-chief of the armed forces of the United States. The clear purpose of this provision was to ensure civilian control over the military. Remember — Washington’s officers had offered to make him a military dictator, and America’s founding statesmen were fully aware of the role the army had played in the overthrow of Charles I of England and the establishment of the Commonwealth. They were fanatical about civilian control over the army. Now Bush and his apologists have twisted that principle into an effective right of dictatorship, enabling the President to become precisely the military dictator the Constitution was meant to prevent.
Bush’s rationale overlooks another basic rule of statutory construction. The Fourth Amendment is an amendment to the Constitution. It specifically restricts the powers entrusted to the three branches of government by the Constitution proper. At the risk of sounding legalistic, it is a fundamental canon of statutory construction that specific amendments override any general authority. Thus, the Fourth Amendment prohibition against warrantless searches specifically limits any powers the President might have as Commander-in-Chief.
The other rationale Bush gives is that Congress implicitly authorized him to spy on Americans in the post-9/11 resolution that ostensibly gave him the power to use force against terrorists. As Sen. Russ Feingold and others who voted for the resolution have noted, the resolution said absolutely nothing about authorizing secret spying on Americans. Even if it did — and when Congress intends to limit a Constitutional right, the limitation must be explicit — the problem with the Fourth Amendment would remain. While Constitutional rights are not absolute (the Constitution is not a suicide pact, as Justice Holmes stated), laws can restrict those rights only to the extent necessary to achieve some vital public purpose. In this case, the FISA sets up a demonstrably effective procedure for obtaining warrants for wire taps on an expedited basis, or even after the wire tap has been put into place.
Bush’s invocation of the 9/11 resolution is eerily similar to Germany’s passage of the enabling act after the Reichstag fire in 1933. Okay, I’ve just violated Godwin’s law, but the parallel is striking. In both cases, the ruler used an apparent national emergency as the occasion for obtaining sweeping powers from the legislature. The difference is that Hitler did it explicitly. Moreover, the Enabling Act at least in theory put limits on what he could do; he could not, for example, eliminate the Reichstag, and in fact the Reichstag continued to dutifully rubberstamp Hitler’s decrees until the very end of the war. Bush, on the other hand, is claiming that the 9/11 resolution gives him limitless powers, even though its terms are narrowly focused on the use of force against terrorism.
I am not a Constitutional lawyer, but I have practiced enough Constitutional law to be familiar with the core concepts. The principles enunciated by Bush represent nothing less than the overthrow of the U.S. Constitution. According to Bush, the President can do anything he wants, so long as he justifies it as fulfilling his duties as Commander-in-Chief. This is directly contrary to the plain language of the Constitution and 216 years of American history.
I cannot stress enough how utterly unprecedented Bush’s actions are. At the risk of sounding melodramatic, I truly believe this represents the greatest threat to the Constitutional order in American history. This isn’t an exaggeration. The Civil War was certainly a painful event, but the Confederacy never aimed to overthrow the Constitution of the United States itself; it just wanted to establish its own order. Bush, on the other hand, claims the right to exercise unlimited dictatorship.
Bush is dangerous. This is not just politics as usual. Impeach Bush. Impeach him now. Otherwise, the whole world will suffer.
I realize that by posting this, I’m probably bringing myself to the attention of the NSA, the FBI, the Pentagon, and whoever else is spying on Americans. If that’s you, ask yourself who the true patriot is, and whether what you’re doing is really making the United States any safer. My family has been in Virginia and Georgia since before the United States was a country. I will die before I let these traitors take my country away from me.
Posted by: Aigin | Dec 19 2005 21:51 utc | 5
From Today’s Democracy Now:
MARTIN GARBUS: …
And the United States Supreme Court said no. The United States Supreme Court said you can’t do this. The United States Supreme Court said that the President does not have that kind of power within the Constitution. He has the power to protect the nation, but this goes beyond that. He can’t violate the Constitution. That’s exactly what’s happening now. And what’s going to happen is: You now have a different Supreme Court. You’re going to have Roberts, probably Alito, and my judgment is they’re going to uphold what Bush is doing, and in effect, they’re going to reverse, though not directly, the Nixon case. It’s a strategy to get past that Nixon case and to give the President the broadest powers that any President has ever had.
…
CHRISTOPHER PYLE: Not terribly surprised, but the one piece of it that amazes me is that the President admitted that he personally ordered the National Security Agency to violate a federal statute. Now, he has no Constitutional authority to do that. The Constitution says he must take care that all laws be faithfully executed, not just the ones he likes. The statute says it’s, as you said at the beginning of the program, that the Foreign Intelligence Surveillance Act is the exclusive law governing these international intercepts, and he violated it anyway. And the law also says that any person who violates that law is guilty of a felony, punishable by up to five years in prison. By the plain meaning of the law, the President is a criminal.
AMY GOODMAN: Martin Garbus, you say this is an impeachable offense.
MARTIN GARBUS: Yes, I agree that it is a crime, that it is an impeachable offense. The question is: What will happen? The mere fact that it’s impeachable doesn’t necessarily mean that the Supreme Court will find that, and it doesn’t mean that he will necessarily be impeached. He should be impeached, but he is claiming, for the first time, that he has the authority to do this, even though FISA is there, because he has relied on counsel. He has relied on John Yoo. He has relied previously on Ashcroft, and he’s now relying on Gonzales. And all of these people are telling him that it’s legal. All these people are telling him that the President’s powers can be expanded, even though FISA is there. And the President has come up with an excuse, which I don’t see how anybody can buy. In FISA, you can get a warrant in five minutes. You just go before the FISA court and you get your warrant, and that’s all there is to it. There’s no argument —
…
AMY GOODMAN: And the issue about torture, the Levin-Graham amendment?
MARTIN GARBUS: I think that — I think it’s astonishing, first of all, that it’s the Levin amendment. And when that first passed in the Senate–
AMY GOODMAN: This is Michigan Senator Carl Levin.
MARTIN GARBUS: One of the most, perhaps, liberal, one could argue, members of the Senate. Now, when that bill passed in the Senate, it was 79-16. So, I think it’s extraordinary the extent to which the Democrats have capitulated on this particular issue. I think this business about the PATRIOT Act, I think it’s just a firestorm. I think, ultimately, it’s going to be passed, and they are going to rely on the President’s authority at the end of the day. You really don’t need the PATRIOT Act if the President has all of this authority.
So, they’re switching the argument. They no longer need that particular statute. This comes within the President’s Article 2, Section 2 rights under the Constitution to protect the people. They have changed the battleground to bring it close to the Nixon case, which they, with this new Supreme Court, will overrule. The Nixon case was ’72. At that time, you had Brennan, Marshall, Douglas. This is a very, very different court.
It is very dangerous to think Bush doen’t know what he is doing. This is a set-up. It has been in the works a long time. All the elite know what is going on. But it is being obfuscated by the politicians and the media, so the public doesn’t understand. As the US corporations lose influence around the world, we lose power within the country. These are very dangerous times…
Posted by: Malooga | Dec 19 2005 22:40 utc | 9
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