TPM Cafe points to a letter authored by a few "scholars of constitutional law and former government officials" and published in the New York Review of Books wherein the authors criticize the President's use of the NSA to monitor terrorist contacts within the US. They say
The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security....
and concludes by saying
the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.
All of this is pretty much the basic position of the Democrats in Congress: The whole program is fine, but the President didn't have the power to do this Congress needed to grant that power to him. To paraphrase Senator Clinton and Senator Durbin, among others "all you had to do was ask and we would have said fine."
This is because they know that most people approve of the project. The Far Left, on the other hand looks at things differently. They believe the President broke the law and is trying to enslave the nation by becoming a dictator.
Bush’s lawless behavior can and should be opposed through an appeal to both strength and the defining traditions of our country. Our country was borne of a rebellion against a central authority who claimed monarchic powers that put him above the law. It was precisely to avoid such authority that the Founders made the country one based on the rule of law and checks and balances of the Executive. They made expressly clear that the President is bound by the law to the same extent as everyone else is. There is no such thing as the power to break the law in America. That power is completely foreign to our history and traditions.
Those are the principles and traditions under assault by this Administration and those were the principles invoked by Gore in his speech today. This scandal is not about whether liberal or conservative approaches to terrorism are best. It is about whether we will continue to be a country that is based on the rule of law and not subject to George Bush’s unrestrained power. This fact ought to lay to rest the paralyzing fears of overly cautious Bush opponents who keep fretting about the scary political costs of standing up to George Bush’s law-breaking.
Now what is it we're talking about here? Big Brother? Fine. What was Big Brother all about? It was about surveilling people to assure that there was no political opposition. Think the Soviet Union. Think China. So here you have the Maoists and the Marxists in our nation worried that President Bush might use the tools of, um, Maoists and Marxists.
Sweet
The problem with all this is that no one sees the President using the power he has assumed for any purpose other than what he says hes using it for: Protecting the people of America.
Now I am very aware that affording the government any powers, be they secret surveillance or the ability to collect taxes has its risks and needs to be watched vigilantly. And I do.
I use the Far Left, virulently anti-Bush (though not anti-Government) Daily Kos as my canary in a coal mine.
I also use the less well known Traceless Warrior because he too is anti-Bush and he is a Muslim.
So how does this work? Yeah well its simple; if either of these guys mysteriously disappears (as they would have under, say Hitler, Stalin or Mao) then I will begin to worry. If they even begin to become guarded in their (hate) speech, I will worry.
Until then, I don't worry. Because the only people really worried about secret surveillance are criminals and political dissidents. Criminals I could give a shit about. Political dissidents are, however, important to me.
But you know what? Kos and Mushtaq don't need to be secretly surveilled for people to discover their anti-Bush sentiments and opinions. It's right there and out in the open!
Now, what's really going on is two-fold: there is the age-old power struggle between the executive branch and the legislative branch about power. And there's nothing wrong with that. The President feels that since he is in charge of protecting Americans from the threat of Terrorists, a power Congress charged him with, then this program is in line with Executing the Congressional Mandate.
Some in Congress on the other hand say that the President can not assume this power because they did not bestow it to him.
So who's right? In one sense, it's "who cares" because by Senator Durbin and Clinton's own admission the President is doing the right thing by employing this program.
In another sense it matters that we settle the issue of whether or not Congress merely has to give the President go-ahead to protect the people for him (or her) to assume broad powers. (Remember, Lincoln during the Civil War was able to suspend habeas corpus, while Clinton assumed the right to domestic spying without a mandate from Congress to protect Americans).
But under cover of this seemingly reasonable argument, Democrats on Capital Hill are attempting to both cater to their extreme Left wing while at the same time retain the center by saying things like
"Obviously, I support tracking down terrorists. I think that's our obligation. But I think it can be done in a lawful way," the New York Democrat [Sen. Hillary Rodham Clinton] said.
and
"If the president believes there are other areas that we need to move into to protect America, he will have a warm and positive response from members of Congress on both sides of the aisle," Durbin said. "But instead, what the president has said is, he is not bound by any law. He can say as often as he wants that what he's doing is legal or constitutional, but he can't point to a law that gives him that authority."
Again the Democrat strategy is to hedge their bets and string the "progressive" wing along.
