[NSA Spying]

The Many, Shifting Rationales For Subverting the Constitution and Why They All Suck

This is likely to be a long post--and to what end remains to be seen. I got a lotta spleen, though, and it needs venting. Since this debacle is circular, I'll start randomly. How about Alberto "What Geneva Convention" Gonzales? He is now one of Bush's most well-placed bagmen, having taken rightful place as John Ashcroft's heir (as the entire Bush regime is a game of incompetency one-upsmanship, let's see how Al will take up Johnny's impressive standard). This morning, he gave this rather mind-boggling reason for Bush's pass on trying to update FISA:

We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

So the then-White House counsel makes this calculation: Congress, Constitutionally responsible for making law, will not make this law, and so we won't ask. This is their position: "Yeah, we sorta gave it some thought, but you know, we figured the lawmakers would say it's illegal and would thwart us, and so we thought, well, fuck 'em." Solid legal foundation, that.

Bush offered his own rationale this morning--actually, a couple of them. First up was the how-dare-you-little-pissant-plebians-question-me defense:

My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy....

We're at war, and we must protect America's secrets.

Let's go back to Al and then move forward. We got a President who knows Congress won't approve of what he's doing and has decided to cut them out. Once he's been discovered breaking the law, he plays the "you're helping the enemy card." That's a rhetorical triple axel, but again, a pretty piss poor defense.

He moves on:

That's what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that's important. We've got to be fast on our feet, quick to detect and prevent.

Of all the justifications, this seems to be the one the White House is sticking with--the "faster and quicker" defense. It may alternately be called the "nimbleness" defense. (Question: would a law that was merely quick, but not fast, suffice? Or just nimble, but slow. One for the philosophers.) Although it's bullshit (Mom, sorry if you're reading, this looks to be a profanity-laced tirade), it is at least the first reason. But bullshit it is: whether or not FISA--the law Bush was subverting--was too slow has little to do with why he chose to subvert it rather than bringing it to the Congress. (For those keeping score, the "faster and quicker" argument is thus defeated by the "illegally subverting FISA" defense.)

Russ Feingold, who is quickly emerging as my favorite candidate for President, put it this way on the Newshour:

So I want to go back to your earlier question which is, you know, you were told -- this is something that is already set up. There is already plenty of protection to go after terrorists and gather that information. No, you can't just make up your own law because you don't like it.

This law is totally sensitive to the need of being quick and efficient and going after terrorists. And what the president has done here in my mind is plainly illegal.

In fact, the White House does believe it can make up its own rules. That's what it believed, anyway, when drafting this classified legal brief in 2002:

"The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

This is the all-purpose 9/11 defense: during times of war, the President, by dint of a terrified populace, is free to do as he wishes. The handy thing about 9/11? It defines the state of modernity as one of a perpetual battle versus evildoers.

Bush does, fortunately for my screed, not stop there. A savvy reporter questioned Bush on why he didn't try to get FISA updated if it was so critical to stopping terror:

I think I've got the authority to move forward, Kelly.... Secondly, an open debate about law would say to the enemy.

Oh wait, that's the old how-dare-you-little-pissant-plebians-question-me argument again. Wait, here's a better rationale, in response to this petulant question, "You say you have an obligation to protect us. Then why not monitor those calls between Houston and L.A.? If the threat is so great, and you use the same logic, why not monitor those calls?"

And there's a difference -- let me finish -- there is a difference between detecting so we can prevent, and monitoring. And it's important to know the distinction between the two.

As far as I can tell, no one tried to interrupt him ("bats!"), but nevermind. Let's get to the substance of the defense: "detecting and monitoring." It's important to know the distinction, you know.

(We're getting near the end--bear with me.) Bush ultimately gets to the "more than 12 times" argument, which is also known as the "but Dems may have known we were breaking the law" argument.

We have been talking to members of the United States Congress. We have met with them over 12 times. And it's important for them to be brought into this process.

Over twelve times?! I bet he means six hundred. Or possibly 13. Anyway, the point is that he had consulted with, or at least mentioned to, a Democrat or two that he might have been breaking the law. This constitutes what kind of defense? It's politically sticky for Dems, but who gives a damn? "He did it, too," ain't exactly the pinnacle of Constitutional law.

There was one moment, where he asserted, in a refreshing return to bizarro world, "Everybody thought there was weapons of mass destruction, and there weren't any."--which was, as Hans Blix will tell him, more bullshit. But never mind, we're moving forward. Toward the end of the conference, a reporter accused Bush of seeking "unchecked power," a reasonable characterization of what Bush had spent a half hour describing. Bush lost his cool:

Hold on a second, please. There is the check of people being sworn to uphold the law, for starters. There is oversight. We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times.... To say "unchecked power" basically is ascribing some kind of dictatorial position to the President, which I strongly reject.

But we have Al Gonzales saying what Bush in this press conference confirmed: owing to the prickliness of legislative opposition, the White House took the law into its own hands. Which is, by even liberal definitions, fairly close to what we'd call "some kind of dictatorial position."

To recap, Bush, who acknowledges breaking the law, says it wasn't actually breaking the law, for the following reasons:

• Congress, meddlesome as always, would thwart the right and just administration of his will, which is surely not good.
• Let's not dwell on petty legalities; spying without oversight is "quicker and faster" and also "more nimble," which jurisprudentially speaking, must trump Constitutional protections.
• Shut up, plebes, I know what's right.
• The Constitution says I'm all powerful.
• There's a difference between "detecting" and "monitoring," which my legal counsel tells me is relevant.
• Shut up, plebes, I have a mandate.
• The Dems did not intervene when I hinted obliquely more than twelve times that I may be breaking the law.
• I resent the implications that I am a dictator. Now shut up and let me spy.

Stirring arguments, indeed. For the final response, I turn to Feingold again:

There will be hearings with regard to what the -- what has been done here and what the legal justifications are, which I'm very skeptical about.

And then if it turns out the law has been broken, which I suspect, then we have to consider the proper remedies. But I think what the president and the attorney general here have done is reckless and unjustified and unnecessary. And there needs to be accountability for it.

All I can say is, Rise pissants, Rise! Show Bush what "freedom is on the march" really means.