I'm a lot of things; one thing I am not is an expert on Constitutional law. That said, I know a thing or two. For instance, I know that the various branches of the federal government can't grant one another the power to violate parts of the Constitution. Most people considered this self-evident and relatively settled 200 years ago in a decision known as – try to stay with me here – "Marbury v. Madison," of which you may have heard.

Actual quote: "I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process."

Although most people only faintly remember it (if at all) as "that case that led to the idea of judicial review," the issue at stake was, in essence, Congress giving the Judiciary one of its powers. According to the Judiciary Act of 1789 (I'm going somewhere with this, I swear) disputes over executive appointment of justices were to be resolved in the Supreme Court. Unfortunately, this thing called "Article I through III of the Constitution" clearly states that appointment is a purely executive power (subject to legislative consent). Hence, the Judiciary Act is unconstitutional and the Supreme Court struck it down. Amazing, I know.

Watching George W. Bush on his non-stop public relations campaign to not go down as the worst president in history (look out, Warren Harding!) I am little short of amazed at his "logic." Apparently (and please, Bush fans, correct me if I'm simply misunderstanding him) it's OK to commit espionage on U.S. citizens because he let Congress know he was doing it. Of course by "Congress" he means "Tom DeLay and Pat Roberts," but that's beside the point.

To recap, then, the argument holds that it is OK for the executive branch to unilaterally decide to disregard the 4th Amendment if Congress gives its implicit consent. Aside from the fact that all of Bush's speeches on the subject have been held in hostile battleground states like Kansas, Texas, and Mississippi, that rationale is officially the funniest thing I've heard all day. Because, really, if you're going to put forth an idea that half-assed you might as well stack the deck and do it to an audience of soldiers who just returned from Iraq (like he did today). Hey, if you're intent on governing by knee-jerk rather than the rule of law, you won't find a more reactionary audience than that.

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  1. mike Says:

    I was talking to someone last night in a bar defending the wiretaps. He said "there's one important thing you need to remember." I was ready for the "war powers!" argument, but instead got a: "there is in fact one word you need to remember."

    a word? ok. shoot:

    "you only have a _reasonable_ expectation of privacy."

    ah. good. got it. "does reasonable mean judicial oversight?"

    "…..war powers!"

  2. J. Dryden Says:

    Will these recent developments have any effect on the identity of your much-delayed disclosure of the 2005 Cocksucker of the Year? (Having forced myself to watch five minutes of Dennis Miller's latest HBO special until the screen grew blurry through the tears of blood I was shedding, you might have a two-year-running candidate.) I'd say Bush has bypassed Harding–Halliburton makes the Teapot Dome scam look like nothing, and Harding didn't march us into a foreign policy that made the rest of the world hate our guts for decades afterwards.

  3. Scott Says:

    Bush could have used wiretaps in the manner in which they were intended. For example, in cases where authorities are aware of a terrorist plot, but with little or no time to get proper authorization for a wiretap, you can apply for a…wait for it…retroactive warrant. And the FISA court (who hands out the warrants) almost always gives them.

    If what Bush says is true, and the wiretaps were for things that we had no warning about, he could have easily gotten a warrant. This leads to two disturbing, but well known, possible conclusions. On the one hand, Bush may have simply been unaware of the retroactive warrants. But don't you want your President, or at least his advisors to know what he is capable of doing as President. On the other hand, Bush may simply not care about breaking the law.

    I'm not sure which is right, but I can't wait for 2008.

  4. Ed Says:

    The 48-hour "retroactive warrant" provision is what really floors me. I'm fairly certain that SOMEONE in the white house (although certainly not Bush) had to have known about that provision.

    Under those circumstance – I mean, at least ONE PERSON had to know the law enough to realize that was possible – the only justification for doing it without warrants is to keep it a secret from anyone outside of the White House and relevant intelligence agencies.

    FISA has only denied like 3 warrants in its entire existence. It's not like they represented an obstacle.

  5. Blake Says:

    No one disputes the President's right as CiC to tap phone conversations between two overseas parties without review.

    We must demand that phone conversations between US Citizens in the United States be subject to judicial review.

    The law is NOT clear as to which rule, if any, applies when a citizen of the United States, calling from the USA, speaks to a party in another country. Let alone if that other party is on a "watch list" or calling from a suspect country.

    I wish this was as black and white as the pundits portray, but like much in the law this is grey.

  6. peggy Says:

    I may be mistaken, but I believe it's actually even a 72-hour retroactive warrant.

    Also: listening to this interview with Gonzales on NPR in which he explains Bush's side makes blood burst out of my forehead spontaneously.

    NPR: So, why are you guys saying A is B?
    AG: A is B.
    NPR: …
    AG: People are confused because they think B is B and 72 hours is plenty of time to rubber-stamp-sign things for the FISA court but REALLY it's that A is B.
    NPR: But… B is B…?