Can we stop playing the fool on the illegal warrantless NSA wiretapping?

From Constitutional debate needs clarity St. Petersburg Times editiorial 02/10/06

The last thing most Americans want is for this debate to become another partisan battle. The issues are too important to our security and civil liberties for that. The public needs to know whether the NSA surveillance program is operating within the law, and if it isn't, what can and should be done to change the law to allow eavesdropping without a warrant on communications between someone in this country and suspected terrorist cells abroad.

... The mystery is why Bush does not welcome legislation that would end the argument in favor of what he has been doing.

On Wednesday, Specter said he plans to introduce legislation to give a special federal court the authority to supervise the FISA surveillance program. The senator said he wants to "assert Congress' constitutional authority" while allowing the surveillance to continue under court supervision. That seems like a reasonable compromise.

The issue of limits on presidential power in the post-9/11 period is a constitutional debate worth having. It is time Congress and the White House brought clarity to the issue before it becomes a constitutional crisis.

This editorial is really painful to read. I'll try to state my concerns succinctly:

When the President consciously and repeatedly violating the plain language of the law (FISA in this case) and defends doing so on the basis of an alleged Presidential prerogative to violate any law or any Constitutional provision if he alone decides it's for national security - that is a Constitutional crisis. Not will become, might be, could become, yadda, yadda - it is a Constitution crisis, right now.

Yes, there's some mystery about why Bush is doing this. But some familiarity with the players


involved, especially Dark Lord Dick Cheney, strongly suggests two conclusions that are admittedly speculations, but ones strongly suggested by the circumstances: (1) Bush and Cheney want to establish their unilateral Executive approach to Presidential power by using a national security issue like this that they can claim to be tied to fighting The Terrorists; and, (2) there is something they're getting from the illegal wiretapping program that they know is unconnected to terrorism and that the FISA court would not approve.

Again, those two assumptions are speculations. But I'm a lot more confident about them than about any of the administration's claims on Iran's nuclear program - although admittedly that's not saying a lot.

Finally, how long will the press and the Democrats play along with this, hey, let's make another law that Bush will ignore and pretend that fixes the problem nonsense? I've always had a dark suspicion that Maverick McCain's anti-torture amendment was a scam from the start.

Whatever his original intentions, it wound up with (1) an accompanying amendment, co-sponsored by an alleged Democratic liberal, Carl Levin, that denies the right of prisoners at Guantánamo the right to demand habeus corpus, a basic principle of law predating even the Magna Carta, that would effectively deny torture victims at that location any remedy when torturers violate the new law - or the old ones; and, (2) Bush effectively declared in his signing statement that he could just ignore that new law like all the others.

And that's pretty obvious. If the administration was already violating the anti-torture laws, why would a new law make any difference? Only an aggressive investigation by Congress could really assert a Congressional balance against that practice.

And exactly the same thing is true with the illegal NSA wiretapping. The issue is that the President is claiming the right to just ignore the FISA law requiring a court review of applications for warrants. Now Specter is talking up a transparent scam to have a new court review the illegal program?

This ain't rocket science. If the administration is breaking the current law, they'll break any new law Congress passes.

Let me repeat that: If the administration is breaking the current law, they'll break any new law Congress passes.

It's crazy to be talking about something like this. The fact that a very good paper like the St. Petersburg Times is running an editorial like this that actually pretends to take the idea seriously is downright scary.

One more time through:

When the President is openly violating the law and claims it's his right to do so on his own discretion, that is a Constitutional crisis.

It's pretty blatantly obvious why this administration is making a stand over this particular program; the press and Congress should be documenting the details, not pretending to wonder about the obvious.

If the President claims the right to break any law, passing another law is not going to change his behavior; using Congressional investigations to document specific crimes that would lead to prosecution and public exposure would.