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Bush's wiretapping stirs constitutional crisis

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Thu, 29 Dec 2005 21:46:25 -0800 (PST)

Bush's wiretapping stirs constitutional crisis

 

 

 

 

Bush's wiretapping stirs constitutional crisis ...

http://www.mcall.com/news/opinion/anotherview/all-quote-b-a-adec28,0,4951161.sto\

ry?coll=all-newsopinionanotherview-hed

 

 

 

 

Though the White House would pretend otherwise, President Bush now

faces a full-blown constitutional crisis over his insistence that he

may spy on Americans without warrant. The more he tries to browbeat

Congress and delude the rest of us, the more isolated he becomes.

 

Respected federal judges are rebuking Bush, while he has alienated

many political allies and lost any chance of blocking congressional

investigations. Citizens are incensed by this latest in a long train

of abuses and usurpations. A showdown looms over the rule of law.

 

 

For days Bush has been whistling past the graveyard in which Richard

Nixon's reputation lies buried. All signs are that he is terrified of

what this scandal may herald. On Dec. 16 The New York Times reported

that Bush had ordered, without warrants, the National Security Agency

to tap the phones of Americans. NSA agents leaked the story because

they think the policy is illegal.

 

 

 

 

It flagrantly violates the Fourth Amendment, which prohibits

warrantless searches of Americans; the Foreign Intelligence

Surveillance Act of 1978 (FISA), prohibiting electronic spying on U.S.

citizens without a warrant (except in emergencies, when a retroactive

warrant may be issued within 72 hours); and USSID 18, a longstanding

directive preventing the NSA from eavesdropping on Americans.

 

 

The White House blanched. After stonewalling for a day, Bush veered

from his prepared radio address to defend his secret policy, boasting

that it would continue as long as he is president. Bush asserted that

it's legal because he is commander-in-chief of the armed forces, and

that Congress authorized him to use force against the terrorists who

struck on Sept. 11, 2001. He also warned that any public discussion of

his policy endangers the nation.

 

It was too much, even for a country grown used to secret prisons,

kidnapping and waterboarding in the name of national security. The

crisis boiled over. Administration officials hemmed and hawed when

asked why the President could ignore the law. Bush held a hasty press

conference. It did not shore up support.

 

 

 

 

He reiterated his bald justifications for ignoring FISA and warned

Congress that any hearings (such as Sen. Arlen Specter promised) would

aid the terrorists. Facing intense criticism, the White House

characteristically spun a web of lies and half-truths. Bush stressed

that Congress was briefed about the spying, implying that the

executive branch really was subject to oversight. He insisted that the

policy is necessary to act quickly on urgent intelligence. Also, the

president stated that the NSA listens in only on calls to and from

abroad, not on calls within the United States.

 

 

We're even assured by Bush's claque that Presidents Clinton and Carter

both authorized warrantless spying on Americans. As so often happens,

these claims turned out to be false. The Los Angeles Times reports

that the NSA has been spying on purely domestic calls, too. That

betrays the absence of real congressional oversight. The few

congressmen actually briefed were prohibited from discussing the

policy with anybody. Further, several senators say the White House

withheld critical information. There in a nutshell is Bush's idea of

checks and balances.

 

 

The allegations from Bush's defenders about Presidents Clinton and

Carter are a mark of desperation. The orders they signed required the

NSA to adhere to FISA, and prohibited spying on U.S. citizens.

 

 

 

 

Bush's NSA policy is neither legal nor necessary. His determination to

circumvent FISA is bizarre. The FISA court has granted virtually every

warrant ever requested of it, quickly and even retroactively. The

court was created to prevent civil liberties abuses by an unchecked

executive branch. Last year, Bush defended the Patriot Act by arguing

that under law all spying in the U.S. still required a FISA warrant.

 

Alberto Gonzales, asked at confirmation hearings last January whether

the president could authorize warrantless searches of Americans,

assured the Senate it was illegal. We now know both men were violating

the very law upon which they appealed for our trust.

 

 

George Bush has created a constitutional crisis by insisting on his

''plenary'' power (shades of monarchy) to ignore laws as he sees fit.

Yet the Supreme Court put that notion to rest more than 50 years ago.

One judge on the FISA court has resigned in protest (a thing unheard

of) to make the same point more boldly. The next day, The Washington

Post reported the full FISA court plans to confront Bush, and if

dissatisfied with his explanation, may even disband itself. The

silhouette of impeachment has grown distinct on the horizon.

 

Michael Clark is an historian who lives in New Tripoli.

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