The Myths of Bush's Warrantless NSA Surveillance Program

Georgetown Law Professor David Cole, writing for The Nation, exposes the true myths of Bush's warrantless NSA electronic surveillance program, in response to those claimed by the Adminstration. His article is also a valuable primer for the upcoming hearings. Cole lists the myths, and debunks each one. Here are the key ones:

  • Myth 1: Following existing law would require the NSA to turn off a wiretap of an Al Qaeda member calling in to the United States.
  • Myth 2: Congress approved the NSA spying program when it authorized military force against Al Qaeda.

  • Myth 3: Bush informed Congress of the NSA program.
  • Myth 4: The courts have upheld inherent presidential power to conduct warrantless wiretapping for foreign intelligence purposes.

The explanation to this one is important:

Those courts were addressing presidential authority before Congress regulated such activity by enacting FISA in 1978. The fact that Presidents may have "inherent" authority to take action in the absence of contrary Congressional intent does not mean they have uncheckable authority to do so once Congress has prohibited the conduct. That argument would mean FISA is unconstitutional, and no court has so ruled.

  • Myth 5: The President as Commander in Chief cannot be regulated by Congress.

Bush thinks he can trump Congress and ignore the Courts. The Democrats have a chance beginning Monday to show him Americans won't stand for it.

I'm counting on them to dethrone King George and require his Administration to honor the system of checks and balances established by the framers of the Constitution 200 years ago, following a rebellion against a different King George. As the Nation editors wrote in an editorial a few weeks ago:

The Founding Fathers anticipated debates such as the one stemming from George W. Bush's illegal spying. Well acquainted with the excesses of mad monarchs named George and the excuses for tyranny peddled by their partisans, Benjamin Franklin warned, "They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." James Madison understood how seductive the claims of national security could be, pointing out that wartime is "the true nurse of executive aggrandizement."

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