The lamest of defenses...

I think I cite Glenn Greenwald more than any other source. He's so knowledgeable, reasoned and articulate that he's always a treat to read. Today he demolishes the pathetic excuse for Bush's illegal NSA spying -- the claim that, because Roosevelt "did it", it's OK for Bush to have done it.

He makes three key points in refuting this claim:

1) showing that someone else did something wrong does not make your wrong-doing right.

2) "Roosevelt understood the law to permit the eavesdropping activity he ordered. He therefore believed he wasn't breaking the law but was acting in compliance with it. By fundamental contrast, Bush understood perfectly that FISA prohibited exactly the eavesdropping he ordered -- there can be no doubt that FISA covers exactly this situation -- but he ordered the eavesdropping anyway because he believes he has the power to act even in violation of Congressional statutes. Roosevelt believed that he was complying with the law. Bush knew he wasn't but did it anyway because the theories of lawbreaking he has adopted vest in him the power to break the law. Those acts are not comparable. They are opposites."

3) The law that Bush admits breaking was passed in 1978 -- Roosevelt couldn't have broken it.
"In 1978, Americans made it a crime for their government to eavesdrop on them without judicial approval -- and they expressly applied that prohibition both to peacetime and wartime. The fact that an argument can be made that Franklin Roosevelt may have violated a much more ambiguous statute does not even remotely justify George Bush's violations of the crystal clear FISA. George Bush has no right to engage in behavior which the American people through their Congress made it a criminal offense to engage in. Period. That his followers are scraping around for arguments such as "55 years ago, Roosevelt did something similar" is a pretty good indication of how sparse are the available defenses."

Glenn then provides an update wherein he makes clear:

One other point is worth making here. Whatever doubts existed as to whether national security demands entitled a President to violate the law were fully and unambiguously resolved by the U.S. Supreme Court in 1952, when it ruled in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) that President Truman's claimed need to sieze the steel factories in order to support the nation's Korean War effort did not entitle him to act contrary to Congressional intent that he not have seizure power. As Justice Jackson put it in his Concurring Opinion:

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government [343 U.S. 579, 655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.

No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Any presidential claim of lawbreaking powers was smashed by Youngstown. And let's just repeat that last excerpted line again: "men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."