Wednesday, January 04, 2006

Tell us what you want, what you really really want...

As I've said before, it's not the wiretapping, it's the illegal wiretapping. Why not get warrants? The answer seems to be that the DOJ didn't think the reasons would pass the sniff test and Abu Gonzales has said that when the idea of passing legislation which would have allowed the taps was floated before Republicans in Congress, the feedback was: that won't fly. In other words, we had to break the law. The law-enforcers wouldn't say it was OK and the law-makers wouldn't make it OK.

But what is really bizarre (in that old logically inconsistent way) is that the Rethuglicans are arguing that the President... er, Commander-in-Chief, has unlimited powers anyway because we're at war, you know... the war-on-terror, and their justification was Congress authorizing the invasion of Afghanistan. It would seem to me that if they really thought that the President had these unlimited powers, they wouldn't have to get Congress to grant him additional powers via the Patriot Act. Does not the requesting of additional powers imply the requester knows that he doesn't have them?

So, leaving that bit of illogic aside, why not ask the question: why couldn't they get approval? what was it about what they were trying to do that was so unpalatable? It seems to me that there are two obvious reasons. One was that it was a fishing expedition. They wanted to sniff the telcos trunks (and maybe the Internets, too) and see what they came up with. But that sort of thing has always been illegal, and for good reason. I seem to recall that probable cause has long been a prerequisite for obtaining warrants. The second possibility would seem to be the more likely one given the character and MO of the perps, and that is that they wanted to snoop on their important "enemies" i.e. political foes, the ones they really care about, not those old terrorists. They have never really taken that job very seriously, unlike the zeal with which they fight for political power.

Along these same lines, Josh Marshall writes:

To me, since there's so little we know about the methods and targets of this surveillance, the key issue is that, whatever the substantive merit of these wiretaps, doing them without a warrant seems to have violated the FISA law.

If the present law doesn't allow something that is indeed necessary, the president has to get Congress to change the law. At a minimum, the president needs to fully inform Congress of what he is doing and the legal/constitutional basis upon which he believes he is acting.

Otherwise, Congress isn't in a position to exercise its constitutionally mandated oversight role.

Yet the president is arguing that his powers as commander-in-chief give him the authority to set aside that law. Such an unlimited assertion of presidential authority just has no place in our constitutional system; and his continued assertion of such authority is a plenty big enough scandal right there.

But if this were to take a truly Nixonian turn and it turns out that this was being used against political enemies, anti-war groups or journalists then we're talking a whole 'nother ballgame.

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