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Bush on Wiretapping : I Did It And I'll Do It Again

by TChris

The Bush administration has rewritten the nation's first principles. No man is above the law, except the president. Ours is a government of men (gathered in the White House) and not of laws. Separation of powers gives way to a concentration of power in an omnipotent executive. The president's power must be unchecked, even if the president is unbalanced.

The federal legislature enacted laws that prohibit the executive branch from electronically eavesdropping on private communications without the approval of the judicial branch. The law authorizes the president to apply to a special court for easily-obtained permission to intercept telephone calls of persons suspected of supporting terrorism or of working on behalf of a foreign government. Nothing in the Constitution gives the president greater power than that bestowed by Congress to listen to private conversations, and the Fourth Amendment requires the executive branch to obtain a warrant before it does so.

Like a rebellious child who continues to stick out his tongue after being told to behave, President Bush today acknowledged that he has authorized wiretaps and insisted that he will continue to do everything in his power to protect Americans. While the president contended that he is acting "under our laws and Constitution," his understanding of the law -- detention without trial or counsel, torture, secret renditions to foreign prisons, all deemed appropriate exercises of presidential power -- is untrustworthy.

A president who lies about a private sexual encounter is impeached. A president who defies the law and, when exposed, arrogantly proclaims his right to do so, will never stand trial.

Justice Powell explained why the president's claim of unchecked power to spy within the nation's borders violates the Constitution:

Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

. . .

Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

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    It's a cliche, but it's true: The ends do not justify the means, especially when those means are not guaranteed to always succeed. Bush was wrong when he suggested the 9/11 attacks might have been avoided if the NSA had been spying on Americans on 9/10. There is no way to know, but more significantly, Bush misrepresented what officials knew about the hijackers. Intelligence officials had information on at least some of the hijackers. The disaster came, in part, because they failed to act on what they knew.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#2)
    by Rust Belt on Sat Dec 17, 2005 at 08:43:36 PM EST
    I haven't seen this get much play, but I thought the crowd that frequents may find interest in it. From what the article reveals, a UMass Dartmouth Senior got a visit from DHS for requesting a copy of Quotations from Chairman Mao Tse-Tung, aka the Little Red Book.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#3)
    by Kitt on Sat Dec 17, 2005 at 09:55:17 PM EST
    Whoa, sh*t! Just bought a book on Chairman Mao today at Costco. Setup? {No...no...how could 'they' know I was going to Costco on the spur of the moment to get diapers?}

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#5)
    by wg on Sat Dec 17, 2005 at 10:53:35 PM EST
    corected link to editorial

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#6)
    by The Heretik on Sun Dec 18, 2005 at 02:24:29 AM EST
    Lawyers. Hate to say, but I am reminded of the old joke. The one about the prostitute and the lawyer. The one about why god invented lawyers. Oy. Lawyers. Not lawyers like you. No. Lawyers.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#7)
    by roxtar on Sun Dec 18, 2005 at 04:18:47 AM EST
    This is disturbing, both for the reason you might think, and for others which are yet to raise their ugly heads. The rule of law is no longer absolute. As lawyers, what are the implications? Is jury nullification up for grabs? The president doesn't just say it's ok to break the law; he says that if he can come up with a justification that satisfies him, the law has no force and effect. It's not breaking the law at all! If that's good enough for the First Citizen, shouldn't it be good enough for my clients? My client sold his prescription medicine because he's out of work and has five kids to feed. That's pretty important to him. Further, there's no secret court that will rubber stamp a permission slip for him. Isn't he justified? Does the law apply to him just like it applies to the President? And vice versa? The rule of law is the bedrock of our society. This feels like an earthquake.....

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#8)
    by Edger on Sun Dec 18, 2005 at 06:33:05 AM EST
    roxstar: The rule of law is the bedrock of our society. This feels like an earthquake..... Empire In Descent: The Deliberate Destruction Of America - mabe not so "tinfoil hat thinking" after all...

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#9)
    by john horse on Sun Dec 18, 2005 at 07:20:30 AM EST
    I Did It And I'll Do It Again.
    Bush is a serial abuser of the Constitution, civil liberties and human rights. I am convinced that he is incorrigible. Unless more people speak out, he will only keep doing it.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#10)
    by owenz on Sun Dec 18, 2005 at 08:19:42 AM EST
    I Did It And I'll Do It Again.
    Here's the thing: no he won't. When will people start realizing that Bush is a wimp? A p*ssy. A political coward. Just like his father. From social security, to Harriet Miers, to the torture bill, Bush always acts like a resolute and implacable leader. And then when push comes to shove he promptly wimps out, changes his mind, and avoids the conflict by doing what the adults tell him to do. Wah. Trust me, I'm just as outraged by this program as everyone else. But Baby Boy Bush has been caught with his hand in the cookie jar and will now wet himself and cancel the program. The NSC program = social security = Harriet Miers. Junior will take his ball and go home. Are there other secret programs going on that are just as disturbing as his spying scheme? Probably. But the President is only tough before he gets caught. So...enjoy the show folks. Our Dear Leader will pretend he's going to force a constitutional crisis by plowing ahead, but at some point in the next month, he'll stick his thumb in his mouth, grab his binky, and roll over. The best he'll get out of this fiasco is another "Democrats Surrender to Terrorists" talking point.

    All the folks who are paranoiacs when it comes to the prospect of Hillary Clinton in the WH would've s*** their britches if before yesterday she had ever spoken or written in favor of warrentless searches.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#4)
    by wg on Mon Dec 19, 2005 at 01:18:55 AM EST
    NYT is asking Congress to force Bush to stop the illegal spying in this country in today's editorial: ... Mr. Bush said he would not retract his secret directive or halt the illegal spying, so Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling ... I'll second that.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#12)
    by Slado on Mon Dec 19, 2005 at 05:27:47 AM EST
    I will wait to see what the actual facts of this story are rather then arguing in the hypothetical or on big priciples. Remember the people whose phones were tapped were receiving or placing calls overseas. Meaning 1/2 the call was domestic and the other 1/2 foreign. Are you saying if OBL gives you a call then the governement should not listen, file for a warrant, then hopefully catch the 4th or 5th call OBL makes to you issuing the Jihad? I realize this is worse case but so are most of the arguments against the wire taps. The truth is somewhere in the middle and I do not fear abuse of this until it happens. Better to be safe then paranoid. If we'd tapped Atta's calls maybe we would have learned what flight he wass supposed to take or where he was residing. You can't have it both ways. Either you want to catch these guys or you don't.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#13)
    by Edger on Mon Dec 19, 2005 at 05:40:33 AM EST
    Moral relativism, Slado? I will wait to see what the actual facts of this story are rather then arguing in the hypothetical or on big priciples.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#14)
    by kdog on Mon Dec 19, 2005 at 07:30:10 AM EST
    Catch them within the law Slado...it's that simple.

    Re: Bush on Wiretapping : I Did It And I'll Do It (none / 0) (#15)
    by roger on Mon Dec 19, 2005 at 08:01:31 AM EST
    Slado, FISA allows the gov't to start the tap and get a warrant within 48 hours. They can start the tap IMMEIDIATELY. Not fast enough for you?