So, does this make GWB an 'activist' president?
If there's one thing I hate more than an 'activist' judge who reads the Constitution any which way to serve his political agenda, especially if it's in the wrong direction, it's an activist president who does the same thing.
Under the Foreign Intelligence Surveillance Act (FISA), a special secret court (a contradiction in terms, but let's ignore that for a moment, shall we?) is set up that meets in the Department of Justice building in Washington. Hand-picked (by the Chief Justice of the United States) federal judges go in there and listen to lawyers from the DOJ explain why they need to spy on Americans or others in the U.S. who are suspected of being terrorists, or of cooperating with them, or who will lead our counterspies to them.
In case of emergency, the FBI, say, can act first to plant a bug, or the functional equivalent in today's high-tech world, and ask permission later.
So the president didn't really need to go outside the Constitution to authorize a program of secret spying on us.
But Attorney-General Gonzales, the president's legal yes-man, says that it wasn't a secret and that Congress was kept informed, etc.
But Sen. Harry Reid of Nevada, the leader of the Democrats, says this is Bush-waa:
"...Under current Administration briefing guidelines, members of Congress are informed after decisions are made, have virtually no ability to either approve or reject a program, and are prohibited from discussing these types of programs with nearly all of their fellow members and all of their staff."
What this means is that the few members of Congress who are told anything about an illegal practice can't do anything about it anyway, for that would be giving up the secret.
This is a little crazy, what?
Does this pass rational basis? Not in my world.
I wonder what the president has to do to do anything illegal under the Bush doctrine?
Let's see: the president can kidnap, torture, hold people indefinitely without bringing them to court, send them on an airborne merry-go-round to foreign lands where so they can be tortured without our getting blood directly on our hands. He can twist the Authorization to Use Military Force (AUMF) passed at his request to authorize the use of the military in Iraq to permit him to disregard the FISA law AND the Fourth Amendment that he is sworn faithfully to defend.
The Bush Doctrine seems to be that "if I dream it up and want it, it's legal."
How is this different than King John, who met his comeuppance at Runnymede in 1215 when the barons, at sword-point, forced him to sign Magna Carta, the relevant portion of which you can read in the upper left margin of this blog?
Answer: Congressmen and women wear no swords...
Where are OUR barons at Runnymede when we need them?
Oh, no ones estate is at risk, so don't expect them to show?
I'm putting my money on Baron Feingold of Wisconsin, backed by Baron Reid.
Baron Spector will be in the tent, I'm sure, even though he's a member of the King's party.
Here's a photo [click to enlarge] of the American Acre at Runnymede where the American Bar Association set up a memorial in observance of our indebtedness to the barons and the rule of law despite an unruly king:
Here's a photo of the barons forcing King John to sign Magna Carta. He's the one with the feather. The photo is in Black & White because this is the early days of photography, I guess...
Check the guy in the middle. Is he resting both hands on his sword? If so, he's the one you don't want to fool around with if you're the king. No metal detectors in those days...they could attend to business.
The president is claiming, this evening, that he was acting legally.
If the president claims that his acts are legal, does that make them legal?
If so, then Pres. Nixon acted legally in authorizing the Watergate break-in, and the burglars, called 'plumbers,' who were convicted of crimes, had a good defense, which, of course they didn't.
I suppose we could hang a sign around that president's neck that says: "I am the President. What I say is law. I can do no wrong. Neither Constitution nor statute can control anything I do, for I act to protect the American people against evildoers and terrorists. 9-11. QED."
Does this make you feel more secure, to see GWB walk around with a sign like that around his neck?
Oh, Barons, where are you!?
Here's a cool Magna Carta site.
Dahlia Lithwick's take on King George is below:
jurisprudence
Uncivil Liberties
Why won't the Bush administration obey the law?
By Dahlia Lithwick
Posted Wednesday, Dec. 21, 2005, at 6:16 PM ET
In the days after Sept. 11, everyone agreed that we needed to recalibrate the delicate balance that had been struck between security and civil liberties. It now appears, however, that while the American people thought they were bargaining in good faith with their president, he was nodding and smiling and taking what he wanted in secret.
At the start of this "war," Congress thought it was authorizing the use of force in Afghanistan. But now we've learned that in so doing it also gave the president limitless powers to break the law. Congress thought it was passing the Patriot Act. But it was actually giving the government broad and seemingly open-ended new surveillance authority. We believed the executive branch to be bound by the rule of law—by the Constitution and the Geneva Conventions and the ancient writ of habeas corpus. But the president was redefining torture, disregarding international conventions, and granting himself broad discretion to name and imprison enemy combatants for years on end.
Americans believed they were bargaining in good faith with their government over the original deal struck in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. FISA was supposed to represent a compromise between security and civil liberties, by making it illegal to spy on Americans without judicial oversight but setting the bar for such oversight quite low. Even as amended by the Patriot Act—which further lowered the standards for a FISA warrant—the statute still purported to adhere to the fundamental bargain: Americans would not be spied upon by their government without basic constitutional checks in place.
The Bush administration is forever quick to point out the flaws in all these bargains we have struck. The Patriot Act didn't go far enough, so the administration pushed for Patriot II. The Geneva Conventions afforded prisoners too many rights, so those rights were suspended. The statutory definition of torture precluded intelligence-gathering, so new definitions were invented. FISA was too cumbersome in a crisis, so it doesn't bind the president. Perhaps it's naive to think we had these negotiations in public because this delicate allocation of rights and powers is fundamental to a democracy. It's not shocking that the Bush administration sought to expand its powers. It's shocking that the president unfailingly refuses to ask.
There are two explanations for the Bush administration's failure to stay within the boundaries of the legal structures for which it's bargained: One is that the administration believes it is fighting this war on its own; the courts, the Congress, and the American people are all standing in its way. The other is that the administration is convinced that none of our statutes or policies or systems will actually work in a pinch. Our laws aren't just broken. They are unfixable.
The former argument was offered this week by Attorney General Alberto Gonzales, who defended the secret spy program with the astonishing claim that Congress wasn't told because Congress would not have passed it. Gonzales said the administration considered asking Congress to authorize the program but was "advised that that was not something we could likely get." (This, even though Congress just about sold off the farm after 9/11, granting the president every extra power he requested.) That just can't be right. And it isn't. As Chief Justice John Roberts explained so eloquently at his recent confirmation hearings, the Youngstown case, decided by the Supreme Court in 1952, stipulated that "where the president is acting contrary to congressional authority … the president's authority is at its lowest ebb." The courts have expressly said that if Congress wouldn't sign off on the deal, executive-branch authority is lesser, not greater.
The other argument for consistently reneging on bargains about civil liberties was put forth by President Bush this week when he insisted that we are facing a "new threat requiring us to think and act differently." The existing laws that govern his conduct are helping the terrorists and hurting us. Bush's admission—that he authorized a program four years ago that is secretly monitored and reauthorized by himself—is astonishing. His admission that he intends to continue to do so masks a darker truth: He believes that FISA can't be fixed. Like the judicial system for Americans or the courts-martial system for prisoners of war, FISA can't be modified to protect us; it must be overridden by fiat and in secret.
Over the past several days, Bush's weary supporters have begun to publish defenses of his conduct. They argue, in effect, that the president has the authority to conduct warrantless searches for foreign intelligence because no courts have ever held that his office does not have that inherent authority. This assumes there is a war on. But that isn't the most galling argument. The most reckless argument is that FISA is either outdated—as Condoleezza Rice has suggested—or too slow, or demands too much in the way of proof. Never mind that experts say warrants can be verbally authorized in a matter of hours and proved retroactively and that the FISA court has, as of today, approved 5,200 applications and rejected four. To Bush it is broken, and rather than fix it he'll just make up his own law.
The system sucks, Bush's champions argue. Possibly. The bureaucracy is crippling. Indeed. And so what is the solution? Byron York argues—mind-bendingly—that with his order allowing the National Security Agency to conduct warrantless searches, Bush "was trying to shake the bureaucracy into action." Somehow, the bureaucracy would be galvanized into coordinating better investigations by a secret spy program operating without its knowledge.
So, which is it? Does the Bush administration refuse to honor its legislative and constitutional bargains with Congress, the courts, and the American people because it believes we are all just getting in its way? Or does it sidestep us because it believes that all these trappings of a democracy—the courts and the laws and public accountability are broken and unfixable? The first possibility is grandiose and depressing. The latter is absolutely breathtaking.
Dahlia Lithwick is a Slate senior editor.
Article URL: http://www.slate.com/id/2132983/