First, the oath of office of the President of the United States:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”
Next, from the Bill of Rights, the Fourth Amendment to the US Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
On its face, President Bush’s domestic spying program, established by him in 2002 and renewed by him at least 30 times since, is unconstitutional. How long does Bush intend to carry it out? As long as Americans are endangered by terrorism. That is to say, forever.
The Christian Science Monitor reports:
WASHINGTON — From a standoff over the Patriot Act to pushback from Capitol Hill on the treatment of detainees, secret prisons abroad, and government eavesdropping at home, tensions between the Bush White House and the Republican-controlled Congress have never been more exposed.
Much of the rift is over the exercise of executive power. Some lawmakers oppose the president on the values involved in harsh interrogation of terror suspects. Others are riled that they were left out of the intelligence loop.
Even Republicans who favor renewing the Patriot Act were blindsided by news Friday, later confirmed, that President Bush had authorized secret eavesdropping on international communications from people in the US with ties to terrorists.
“It’s inexcusable … clearly and categorically wrong,” says Sen. Arlen Specter (R) of Pennsylvania, who was not among the congressional leaders Mr. Bush says had been briefed on the program. Senator Specter promises that the Judiciary Committee he chairs will hold hearings on domestic spying by the National Security Agency in the new year.
“We’ll look at what they did, whose conversations they listened to, what they did with the material, and what purported justification there was for it,” he adds.
The objection isn’t that Bush is carrying out electronic surveillance on Americans. The objection is that he isn’t bothering to seek a warrant. The standard, tired, Republican come-back, “Clinton did it too!” is a proven lie.
Congress isn’t happy with the whole thing:
“I believe the Congress — as a coequal branch of government — must immediately and expeditiously review the use of this practice,” said Sen. Olympia Snowe, a Republican from Maine.
Snowe joined three other members of the Senate Intelligence Committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.
Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Several Democrats agreed said they were told of the program, but did not know the full details and had concerns.
West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee’s top Democrat, on Monday released a letter he wrote to Cheney in July 2003 that, given the program’s secrecy, he was “unable to fully evaluate, much less endorse these activities.”
Why not seek warrants? Perhaps because no court would grant them. We’ve seen these abuses in the past: Wiretaps on civil rights leaders, political opponents, anti-war protesters. That’s what the Church Committee found. That’s what the FISAC (Foreign Intelligence Surveillance Act Court), a secret court whose purpose is to grant warrants for just such wiretaps as Bush claims he wants, was established to prevent. We know that not all those unwarranted wiretaps were against overseas communications involving foreign nationals: Purely domestic calls were intercepted too.
Today’s news is that one of the judges (U.S. District Judge James Robertson) on that secret court has resigned in protest.
Dick “Vice President for Torture” Cheney and Alberto “Cell Without A Number, Prisoner Without A Name” Gonzales like the program. They also like holding US citizens incommunicado, without charges and without counsel, for years. The excuse that “time is of the essence” in getting unwarranted phone taps is false: Under current law the President would have 72 hours retroactively to seek a warrant. All he’d need is a few signatures, and there’s no reason to believe that he couldn’t get them if the requests were even marginally legitimate.
Even the right wing is in an uproar. The Chicago Tribune, under the headline “So Much for Protecting the Constitution,” says:
The facts of this case: In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and international e-mail messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity, and without obtaining a search warrant from a court of law. This action was a direct violation of federal law and the United States Constitution.
Nonetheless, Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil was “lawful.” It was not. It was a blatant and arrogant violation of American law. If Bush wanted the authority to undertake such surveillance, he should have gone directly to Congress and sought such authorization, publicly. He did not do this, because it would not have been granted. So, instead of acting in accord with his pledge to “preserve, protect and defend the Constitution of the United States,” he acted surreptitiously and unconstitutionally. What is revealing about Bush’s view of the terrorists is that he apparently believes they assume we act within the bounds of our own Constitution. So, he decided, we’ll trick them. We won’t.
President Bush believes that whatever he thinks is necessary must be lawful, whether it be domestic surveillance by NSA, or torture, or denying the Guantanamo Bay detainees the protections of the Geneva Conventions. Bush is a man of faith, not a man of law. That is a problem.
Don’t be too hard on the Democrats and others who supported Bush back in 2001 and 2002 and have since had second thoughts. As noted in Scrivener’s Error:
Certainly some Democrats voted in favor of attacking Iraq, and of granting essentially dictatorial powers to the President in response to a perceived assault on American sovereignty. They’re going to have to live with those votes. That does not, however, mean that we ignore the questions they raise now, when they know more of what is (and was) going on, on the basis that they already voted once. It means even less that we can criticize them for raising those questions now when new (or at least new to them) information has changed their minds. That is precisely the opposite of the rule of law.
There is still one remedy left to us. Despite the sour taste left by the frivolous use of this article by the Republicans a few years back, the Constitution, which Bush swore to preserve, protect, and defend, provides:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.