Fear of Clowns

"Faith may be defined briefly as an illogical belief in the occurrence of the improbable."
- H. L. Mencken
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Tuesday, January 03, 2006

Bob Barr and John Dean on this decade's scandal: The spectre of Nixon 

Another Republican comes out swinging against Bush's assertion of emperor-like power,

Let's focus briefly on what the President has done here. Exactly like Nixon before him, Bush has ordered the National Security Agency (NSA) to conduct electronic snooping on communications of various people, including U.S. citizens. That action is unequivocally contrary to the express and implied requirements of federal law that such surveillance of U.S. persons inside the U.S. (regardless of whether their communications are going abroad) must be preceded by a court order. General Michael Hayden, a former director of the NSA and now second in command at the new Directorate of National Intelligence, testified to precisely that point at a congressional hearing in April 2000. In response, the President and his defenders have fallen back on the same rationale used by Nixon, saying essentially, "I am the Commander in Chief; I am responsible for the security of this country; the people expect me to do this; and I am going to do it." But the Supreme Court slapped Nixon's hands when he made the same point in 1972. And it slapped Bush's hands when, after 9/11, he asserted authority to indefinitely detain those he unilaterally deemed "enemy combatants"--without any court access.

Bush's advocates also argue that the congressional resolution authorizing military force in Afghanistan and elsewhere--to bring to justice those responsible for the 9/11 attacks--authorized those no-warrant wiretaps. But there is absolutely nothing in the clear language of that resolution or in its legislative history suggesting that it was intended to override specific federal laws governing electronic surveillance. If Bush succeeds in establishing this as a precedent, he will have accomplished a breathtaking expansion of unilateral Executive power that could be easily applied to virtually any other area of domestic activity as long as a link to national security is asserted.

Finally, presidential defenders have argued that efficiency demands bypassing the courts. There again, the clear language of the law does them in. Even pre--Patriot Act law provided a very robust mechanism through which a President, facing what he believes is such an emergency that the short time needed to secure court approval for a wiretap would obviate the need for one, can order a tap without prior court approval as long as he eventually gets an O.K. within three days. If that degree of flexibility does not suit a President, it is hard to imagine what provision would. And if the President thought the law governing eavesdropping was misguided or impractical, he should have proposed amendments.

The Supreme Court has unanimously rejected the assertion that a President may conduct electronic surveillance without judicial approval for national security, noting in 1972 that our "Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch." Rather than abiding such a clear missive, the Administration instead is taking the road mapped out nearly two centuries ago by Andrew Jackson, who, in response to a Supreme Court decision he didn't like, ignored it and is said to have declared, "The Supreme Court has made its decision. Now let them enforce it."

John Dean goes a step further, claiming Bush committed an impeachable offense,

There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.

These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration - parallels I also discussed in a prior column.

... Bush has given one legal explanation for his actions which borders on the laughable: He claims that implicit in Congress' authorization of his use of force against the Taliban in Afghanistan, following the 9/11 attack, was an exemption from FISA.

No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.

But the core of Bush's defense is to rely on the very argument made by Nixon: that the president is merely exercising his "commander-in-chief" power under Article II of the Constitution.

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