"The Hidden State Steps Forward

When the New York Times revealed that George W. Bush had ordered the National Security Agency to wiretap the foreign calls of American citizens without seeking court permission, as is indisputably required by the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978, he faced a decision. Would he deny the practice, or would he admit it? He admitted it. But instead of expressing regret, he took full ownership of the deed, stating that his order had been entirely justified, that he had in fact renewed it thirty times, that he would continue to renew it and--going even more boldly on the offensive--that those who had made his law-breaking known had committed a "shameful act." As justification, he offered two arguments, one derisory, the other deeply alarming. The derisory one was that Congress, by authorizing him to use force after September 11, had authorized him to suspend FISA, although that law is unmentioned in the resolution. Thus has Bush informed the members of a supposedly co-equal branch of government of what, unbeknownst to themselves, they were thinking when they cast their vote. The alarming argument is that as Commander in Chief he possesses "inherent" authority to suspend laws in wartime. But if he can suspend FISA at his whim and in secret, then what law can he not suspend? What need is there, for example, to pass or not pass the Patriot Act if any or all of its provisions can be secretly exceeded by the President?
Bush's choice marks a watershed in the evolution of his Administration. Previously when it was caught engaging in disgraceful, illegal or merely mistaken or incompetent behavior, he would simply deny it. "We have found the weapons of mass destruction!" "We do not torture!" However, further developments in the torture matter revealed a shift. Even as he denied the existence of torture, he and his officials began to defend his right to order it. His Attorney General, Alberto Gonzales, refused at his confirmation hearings to state that the torture called waterboarding, in which someone is brought to the edge of drowning, was prohibited. Then when Senator John McCain sponsored a bill prohibiting cruel, inhuman and degrading treatment of prisoners, Bush threatened to veto the legislation to which it was attached. It was only in the face of majority votes in both houses against such treatment that he retreated from his claim.
But in the wiretapping matter, he has so far exhibited no such vacillation. Secret law-breaking has been supplanted by brazen law-breaking. The difference is critical. If abuses of power are kept secret, there is still the possibility that, when exposed, they will be stopped. But if they are exposed and still permitted to continue, then every remedy has failed, and the abuse is permanently ratified. In this case, what will be ratified is a presidency that has risen above the law.
The danger is not abstract or merely symbolic. Bush's abuses of presidential power are the most extensive in American history. He has launched an aggressive war ("war of choice," in today's euphemism) on false grounds. He has presided over a system of torture and sought to legitimize it by specious definitions of the word. He has asserted a wholesale right to lock up American citizens and others indefinitely without any legal showing or the right to see a lawyer or anyone else. He has kidnapped people in foreign countries and sent them to other countries, where they were tortured. In rationalizing these and other acts, his officials have laid claim to the unlimited, uncheckable and unreviewable powers he has asserted in the wiretapping case. He has tried to drop a thick shroud of secrecy over these and other actions.
There is a name for a system of government that wages aggressive war, deceives its citizens, violates their rights, abuses power and breaks the law, rejects judicial and legislative checks on itself, claims power without limit, tortures prisoners and acts in secret. It is dictatorship.
The Administration of George W. Bush is not a dictatorship, but it does manifest the characteristics of one in embryonic form. Until recently, these were developing and growing in the twilight world of secrecy. Even within the executive branch itself, Bush seemed to govern outside the normally constituted channels of the Cabinet and to rely on what Secretary of State Colin Powell's chief of staff has called a "cabal." Former Treasury Secretary Paul O'Neill reported the same thing. Cabinet meetings were for show. Real decisions were made elsewhere, out of sight. Another White House official, John DiIulio, has commented that there was "a complete lack of a policy apparatus" in the White House. "What you've got is everything, and I mean everything, being run by the political arm." As in many Communist states, a highly centralized party, in this case the Republican Party, was beginning to forge a parallel apparatus at the heart of government, a semi-hidden state-within-a-state, by which the real decisions were made.
With Bush's defense of his wiretapping, the hidden state has stepped into the open. The deeper challenge Bush has thrown down, therefore, is whether the country wants to embrace the new form of government he is creating by executive fiat or to continue with the old constitutional form. He is now in effect saying, "Yes, I am above the law--I am the law, which is nothing more than what I and my hired lawyers say it is--and if you don't like it, I dare you to do something about it."
Members of Congress have no choice but to accept the challenge. They did so once before, when Richard Nixon, who said, "When the President does it, that means it's not illegal," posed a similar threat to the Constitution. The only possible answer is to inform Bush forthwith that if he continues in his defiance, he will be impeached.
If Congress accepts his usurpation of its legislative power, they will be no Congress and might as well stop meeting. Either the President must uphold the laws of the United States, which are Congress's laws, or he must leave office."

Can Congress Authorize Constitutional Violations?

Could Congress pass a resolution or a law authorizing the President of the US to violate the 4th Amendment rights of Americans via 'spying' by permitting warrantless searches or seizures of protected zones without having probable cause absent the well defined classes of cases that presently exist that permit such warrantless searches (none of which permit this outrageous conduct)?

Of course not.

So, what does it matter if - as Bush argues - the war resolution can be read (which it cannot) to implicitly or explicitly authorize these searches (an idiotic argument indeed)?

The entire dialogue is ludicrous. Entering into the debate as if the Congressional "war resolution" could - if it said so - authorize violations of the 4th Amendment is to accept a red herring and eat it too.

Again: The 4th Amendment OF THE US CONSTITUTION overrides the power of congress or the president, or the judiciary in this instance. End of argument. If the president does not have the inherent power to do these warrantless searches, congress could not give it to him.

A first month law student with crim const law under his/her belt knows this to be true.

That's that.

A Few Questions/Thoughts

When was the last time Bushie boy and his whacked sidekick Cheney treated us to one of their terror alert designed to scare the hell out of the easily manipulated? Think there was one after November 2004?

Ever consider that the reason that we have not been struck by Al-Q on our land is because Bush has done more than enough to cripple this country all on his own, that Al-Q is merely too busy sitting back and laughing at him?

How is it with all that spying Bush has done for all these years, and the huge rewards that have been offered, Bush has failed to capture Bin Laden, Ayman al-Zawahiri, Mullah Omar, and Abu Musab al-Zarqawi?

If Al-Q was such a huge threat and they are all around us in the 50 states as we are told, how is that we have not identified and arrested more than a couple of nit wits since Al-Q caught Bush sleeping at the wheel on 9/11?

This country is wide open to murderers who kill at their whim every day. If we cannot stop regular murderers before they act, why in the world would someone believe that Bush is actually preventing terrorists from acting because we check their email?

There's a sucker born everyday, and here in America most of them seem to work for the media.

If Muslims are so evil and hate us so much, how is that out of the millions who live here, that not one has blown himself up in a theater, or shot a cop, or set FEMA on fire?

On 9/11, 19 murderers managed to kill thousands of Americans for no good reason, so we vanquished what was left of the Al-Q (as if they waited around knowing that we were coming) and their hosts in Afghanistan, and then we decided to gut our treasury, kill thousands of Iraqi citizens, cause the death of our own military personnel by not protecting them, and waste our credibility around the world, while the country that caused it all, Saudi Arabia, still owns us. Make sense?

Could Congress pass a resolution or law authorizing the President to violate the 4th Amendment rights of Americans via spying? Of course not. So who cares if, as Bush argues, the war resolution can be read (which it cannot) to authorize it (an idiotic argument indeed)?

In the end, pray that the 2006 elections bring democrats into control of the House, so that hearing and articles of impeachment can be had.

Bush’s Abuse of Power . . .

"Recklessly and audaciously, George W. Bush is driving the nation whose laws he swore to uphold into a constitutional crisis. He has claimed the powers of a medieval monarch and defied the other two branches of government to deny him. Eventually, despite his party’s monopoly of power, he may force the nation to choose between his continuing degradation of basic national values and the terrible remedy of impeachment.

Until Mr. Bush openly proclaimed as commander in chief that he can brush aside the law, cries for impeachment were heard only on the political fringe, although most Americans have long since realized that he misled America into war. Much as he is disliked and disdained by liberals, even they have shown little enthusiasm for impeachment. In addition to the obvious obstacle of a Republican-controlled Congress, there appeared to be no firm proof of an offense that justified such action. To mention the word was to be dismissed—even by people who believe that this President may well have committed “high crimes and misdemeanors.”

The partisan peepshow of the Clinton impeachment did not leave much enthusiasm for that process. Nor would any thoughtful citizen want to risk abusing it in the manner made infamous by Newt Gingrich and Tom DeLay.

For responsible citizens, the reluctance to seek the ultimate sanction against the President is especially strong in a time of peril. He and his supporters could argue, quite plausibly, that to impeach him now would be dangerous and destabilizing. His pet pundits and flacks would deploy all the defensive arguments they scorned in 1999.

He might well be able to rally the public to his side again by denouncing “politicians in Washington” for “undermining national security.”

As political strategy and as public policy, the impeachment of Mr. Bush is an unappealing prospect. (Besides, if he could be thrown out somehow, who would want Dick Cheney to succeed him?) And yet, the actions and attitudes of this President raise the question of how else we can preserve the bedrock principles of a democratic republic.

Dark suspicions would be aroused by Mr. Bush’s insistence on his supposed wartime exemption from the law even if he had greater credibility than he now possesses. Hearing a leader with his diminished reputation for honesty announcing such claims, as he seeks to regain authority by promoting fear, it is impossible not to imagine the worst.

The President says that if he is to protect the nation from our enemies, he must be able to order the surveillance of American citizens without seeking the authority of a court. He has repeatedly violated the Foreign Intelligence Surveillance Act of 1978, which provides very few safeguards of traditional civil liberties. He disdains a law that permits him to order the immediate electronic monitoring of anyone, requiring only that his officers seek a warrant within 72 hours from a secret court that approves those requests in almost every case and never hears an opposing brief. He claims that even those minimal restraints are too onerous.

Why would the President instruct the Attorney General not to seek warrants from the FISA court, as the statute requires? What did he and his aides fear from that court’s conservative judges—appointed by the late Chief Justice William Rehnquist—who have routinely approved all but a tiny percentage of the warrants presented to them by this and other administrations over the past quarter-century? Which wiretaps did he expect those pliable judges to reject?

The Bush doctrine of a President above the law and the Constitution has a dishonorable tradition that dates back to his father’s idol, Richard Nixon. More recently, its pedigree derives from memoranda prepared by the same White House lawyers who have told Mr. Bush that he can tear up international treaties and American statutes that prohibit torture and protect against detention without trial.

What has provoked fresh discussion of impeachment is the President’s admission that he has ignored the law’s requirements and that he intends to keep doing so. The impeccably conservative legal scholar and former Reagan aide Bruce Fein explained the deep implications of the President’s arrogance:

“If President Bush is totally unapologetic and says, ‘I continue to maintain that as a wartime President I can do anything I want—I don’t need to consult any other branches,’ that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath, because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.”

There are politicians in both parties who know that Mr. Bush’s trespasses cannot be allowed to stand. Only a bipartisan coalition can restrain and, if necessary, remove him. It is to be hoped that he steps back before such a struggle becomes inevitable.

Felon-in-Chief

"1809. Criminal sanctions
Release date: 2005-03-17

(a) Prohibited activities
A person is guilty of an offense if he intentionally-
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed."

U.S. three star general (ret.) calls for Iraq pull out

WASHINGTON, Dec. 1 (UPI) -- The U.S. general who used to head the National Security Agency says the only way to stabilize the Middle East is to leave Iraq.

Retired three star Lt. Gen. William Odom, writing for NiemanWatchdog.org, wrote that while President George W. Bush wants to bring democracy and stability to the Middle East, the only way to achieve that goal is for the U.S. armed forces to get out of Iraq now.

Odom, one of the most respected U.S. military analysts and a prominent figure at the conservative Hudson Institute in Washington, wrote, "We have seen most of our allies stand aside and engage in Schadenfreude over our painful bog-down in Iraq. Winston Churchill's glib observation, 'the only thing worse that having allies is having none,' was once again vindicated.
"There is no chance that our allies will join us in Iraq," he wrote. "... Iraq is the worst place to fight a battle for regional stability. Whose interests were best served by the U.S. invasion of Iraq in the first place? It turns out that Iran and al-Qaida benefited the most, and that continues to be true every day U.S. forces remain there."