The court scholar serving Hermann of Thuringia.

The court scholar serving Hermann of Thuringia.
The scholar


Bush Administration outdoes itself again

I've been wondering how to follow up the obviously important story of the NSA having been instructed to spy on American citizens without going through the FISA courts specifically set up for the purpose. The Bush Administration has set up a great screeching and yowling and clamoring about it, but has been completely unable to justify it. Congress, which in 1998, "had" to impeach Bill Clinton for, in their words:

Henry Hyde (R-Ill.): "Mr. Speaker, my colleagues of the people's House, I wish to talk to you about the rule of law. After months of argument, hours of debate, there is no need for further complexity. The question before this House is rather simple. It's not a question of sex. Sexual misconduct and adultery are private acts and are none of Congress's business. "It's not even a question of lying about sex. The matter before the House is a question of lying under oath. This is a public act, not a private act. This is called perjury.

A serious charge, to be sure. Yet, George W. Bush has not only violated the Fourth Amendment to the Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But Article 2, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Amazingly, even though the President has violated the privacy of many thousands, perhaps tens of thousands of individuals (We don't know yet, as the full list of individuals investigated by the secret means employed by the NSA has yet to be provided to competent and disinterested authorities) and even though his actions go well beyond what the Supreme Court has defined as the "Commander-in-Chief powers" in the case of Youngstown Sheet and Tube Co. v. Sawyer (in essence, the Court then decided that President Truman "had violated the constitutional doctrine of separation of powers" by attempting to do what was rightfully Congress's job) Congress has shown little interest in holding President Bush to account. The nation's news media at the end of 2005 has certainly not adopted the hysterical tone of "Constitutional Crisis" that was a staple of news coverage in 1998.

Was the President justified in "making the call" to follow a different set of procedures? The Attorney General suggests "Yes":

ALBERTO GONZALES: We have to remember that the Foreign Intelligence Surveillance Act was created in 1978, and technologies have changed dramatically. [Snarky comment here]

My problem with this justification of course, is that THAT'S NOT THE PRESIDENT'S CALL TO MAKE!!! The President has absolutely NO authority to decide on his own that current wire-tapping laws are inadequate to deal with the threat posed by the "War on Terror". The President may bring his case to Congress and have a member of Congress submit a bill to make a revised wire-tapping law which would take his concerns into account. He has ZERO authority to decide unilaterally, on his own authority, that the wire-tapping laws need to be chucked in favor of a broader rule.

In any event, the Bush Administration has, once again, outdone itself. Completely ignoring the underlying crime (i.e. the unlawful surveillance of an unknown number of American citizens) and ignoring the fact that the leak of this information was known to the Bush Administration since BEFORE the 2004 Election:

The New York Times was the first to report the story on December 16th and then officials confirmed its existence to CNN and other organizations.

"The Justice Department has opened an investigation of the unauthorized disclosure of classified information related to the NSA," a Justice Department official told CNN. [emphasis added]

The Administration did not investigate the leak when it occurred, that investigation is only now occurring. The Administration has no interest in the underlying crime, only in who spilled the beans. Thank Heavens, various people in authority are taking this latest move seriously!!!

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