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Monday, February 20, 2006
Dumb people making the case for the Imperial Presidency
Somebody call for some Constitutional experts? 
First up, Jeff Goldstein gives a big thumbs up (or as Jeff advertises him, someone: "who continues to push through the fog of major media spin") to a guy who could sell spare tinfoil to Reynolds Kitchens. I won't even attempt to summarize his argument for you. I'll leave that to the braintrust in Jeff's comments:
Can this FISA controversy really be serious?
The President of the United States of America, allegedly the most powerful man on Earth, having his very own article in the Constitution he’s supposedly eviscerating, having the world’s mightiest military at his call, is supposedly compelled to query an anonymous little pissant judge as to whether he, the fucking President of the United States of America, can listen in on enemy telephone conversations with U.S. residents?
The fucking little judge gets to decide if the fucking President has grounds to think some guy is a terrorist? Bullshit. The President is contrained only to act reasonably under the Fourth Amendment. And virtually any enemy surveillance is reasonable in wartime. If anybody feels aggrieved they can bring, after the fact, a s.1983 civil rights action to seek damages and the evidence might be suppressed in a criminal prosecution.
Unlike the sniveling little judge, the President, a figurehead and the head of government, is an elected official subject to enormous public pressures from his party, the opposition party and the press (I repeat myself) to use his discretion wisely.
Who can seriously claim that this discretion is better left to a jackass invisible judge rather than the President of the United States of America? The only justification for such a silly-ass curb on Presidential authority is because the proponents of this useless, senseless, and dangerous restriction have already concluded that the current President is evil and that the proponent would trust the discretion of anyone over that of said evil President.
Posted by ss | permalink
on 02/20 at 11:03 PM
That pretty much sums it up. Which is why defenders of the program are constantly assailed with the question, “would you be for this program if it was President Hillary?”—ironic, given that one of the first posts I ever did on the subject I said I would expect nothing less of, say, a President Kerry.
We are at war. The AUMF made that more than just a rhetorical convenience. But the more distance we put between 911 and any new attacks, the more certain factions in this country want to go back into law enforcement mode and pretend that organized terror groups—which we are slowly and surely decimating in any number of important wasy—no longer wish us massive harm (or, to be kind, no longer have that capability, despite the fact that Bush has quintupled their numbers by going on the offensive, blah blah blah).
The real violation of civil rights, we’re finding out, was from a pair of FISA judges who felt they WERE the law, plain and simple—one of whom actively throttled the program at her own discretion.
Because she was passionate about how wrong it was.
Were the fuck is the check on her? I’ll tell you: the leak, and the subsequent revelation that the President bypassed her whenever he could using inherent authority and Article II powers.
Posted by Jeff Goldstein | permalink
on 02/20 at 11:13 PM
The fact that these two "pissant" judges, U.S. District Judge Colleen Kollar-Kotelly and Royce C. Lamberth, were selected by noted civil-rights champion Chief Justice William H. Rehnquist seems lost on them as well as the fact that the judges allowed the wiretapping to go forward under the cloud of the information being obtained possibly being declared unconstitutional:
James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovered in 2004 that the government's failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.
Yet another problem in a 2005 warrant application prompted Kollar-Kotelly to issue a stern order to government lawyers to create a better firewall or face more difficulty obtaining warrants.
The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges.
Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president's power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.
But that is just a reality speedbump to the Kiddie Korner Konstitutional Klub who believe that America's independent judiciary hates America almost as much as it hates George W. Bush.
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