Today the NY Times broke the story that the NSA has been spying on Americans based on an executive order that Bush signed in 2002. Brad DeLong has the appropriate reaction to this news:
I *Hate* the Way This Administration Makes Me into a Nutbar Conspiracy Theorist
I am assured that the "time it took to secure a warrant" reason is pure bs--that FISA allows for special actions in emergencies. I am also assured that every warrant asked for under FISA has been granted.
So what's the purpose of violating the law if the FISA court approves of everything you ask? Either total stupidity on the part of the Bush administration (a likely possibility), or the Bush administration was looking forward into a future in which they would want wiretaps of which the FISA secret court would not approve. I wonder what those wiretaps are.
The Washington Post article says that this police state tactic was the brainchild of our old friend, John Yoo, who has spent many an hour justifying torture (or at least the efficacy of cruel, inhumane, and degrading treatment) on every TV, radio or print media forum he could find.
Then again, Bush stated on The News Hour that everything he has done is "within the law." Of course, you have to remember that John Yoo's opinion of what the President can declare is legal is fairly expansive.
On your [Yoo's] theory, the only check on the president's power is his own underdeveloped sense of self-restraint. The president need only incant the phrase "national security" and all legal constraints fall. You appear to allow Congress only gross, impractical powers. Congress may refuse to provide nuclear weapons, but once they exist Congress cannot constrain the ways in which they are used. You say that Congress may enact a law requiring that our nuclear weapons be destroyed, but it is not at all clear that the president would be bound to obey this law—as long as the president is willing to declare a national security need for retaining them. One need only peruse the litany of discredited claims made in support of the Iraq War to see the value of this check.
According to John Yoo, as long a Bush says it's within the law, then it's legal. And note the words that Bush agreed to when he
backed down "compromised" on the McCain torture admendment:
After weeks of tough negotiations, the president and his top advisors won two concessions from McCain: that interrogators accused of using improper methods could offer as a defense that they were acting on orders that a reasonable person would believe to be lawful, and that the U.S. government would pay their legal fees.
Here's what I'd like to have an enterprising reporter, or even better, the Senate ask Bush: has he disavowed the John Yoo definition of "legal" which says Bush is totally above the law and thus in essence a dictator whenever national security interests are invoked?
Indeed for our Constitution and our fundamental values to survive, Bush must be informed and understand that he is also bound by the rule of law, and not above the law.
If the nation has decided through the constitutionally ordained processes that we will not use nuclear weapons, or chemical weapons, or landmines, or torture, the Constitution does not empower the president acting alone to alter that determination. If the president orders the use of torture, he is a criminal. As long as we claim adherence to the rule of law, no invocation of "national security" or any other hocus pocus will exonerate him.
After all, the "Greatest Generation" fought a war to make that point.Posted by Mary at December 16, 2005 08:34 PM | Civil Liberties | TrackBack(2) | Technorati links |