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December 21, 2005

Was Bush's Secret Spying Technically Legal? That's Not the Point.

Anthony at Three Years of Hell points out that law profs like Ann Althouse and Orin Kerr have suggested that Bush's secret spying program might actually be legal. Perhaps it won't surprise readers of this blog to hear that this future (fingers crossed) public defender doesn't need much detailed legal analysis to say that this program of warrantless searches of American citizens inside the U.S. is an abuse of power that Americans simply ought not tolerate. I can't think of a single thing that would justify this circumvention of existing law, espeically when you consider that existing law would have allowed the administration to do exactly the same thing w/the mere formality that they'd have to justify their actions before a captive court w/in 72 hours. FISA doesn't provide meaningful oversight, but it's more than zero and the zero oversight here is the problem. Sure, as Professor Kerr suggests, these warrantless searches might technically be legal as part of a “border exception” to the warrant clause or via other cracks in the layers of relevant law, but that possible technical legality is far outweighed by the inarguably negative policy implications of allowing the executive to do whatever the hell it wants under the cover of “war.” What comes immediately to mind is the imprisonment of Japanese Americans in camps during World War II. Was it legal? The Supreme Court said yes. Was it right? Hell no. The law cannot always anticipate the evil that men will do, but just because a law hasn't anticipated an action and explicitly named it illegal does not mean that action is ok or ought to be tolerated in our democracy.

That intelligent people are so eager to give the administration the benefit of the doubt here is yet another sign of how badly the Fourth Amendment has been eviscerated, both in law and in the hearts and minds of American people. I wonder if people like Ann Althouse— who says “that at the very least fair-minded observers should see that the problem is complex”— really think the dangers this sort of secret spying might prevent are greater than the dangers posed by an executive that does whatever it wants, consequences be damned? This problem is only “complex” if you are willing to grant that Yubbldew is free to violate the law (in principle, if not in technical fact) and the Constitution under the banner of this so-called “war” of his, and that's a possibility I categorically reject. Besides, none of us is a “fair-minded observer” here—we're citizens of a democracy and we should all demand that our elected representatives—the President included—adhere to their oaths of office and uphold the Constitution rather than finding ways to circumvent its protections.

So when do the impeachment proceedings begin?

Posted December 21, 2005 10:28 PM | general politics

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So when do the impeachment proceedings begin?

my thoughts exactly.

Posted by: AP at December 22, 2005 01:43 AM

Might I suggest that if you think people should be punished or impeached for violations of the law "in principle, if not in technical fact," then I sincerely hope you never end up a prosecutor in any jurisdiction in which I live. Do you not see the irony in talking about Bush being power-hungry?

It would be easier to take things like this much more seriously if you didn't insist upon the petty namecalling, by the way. Particularly if you're hiding behind anonymity--so that other's can't mock your name--"Yubbledew" seems petty.

Posted by: A. Rickey at December 22, 2005 02:47 AM

Anthony: You can rest easy -- it's highly unlikely I will ever be a prosecutor anywhere. And I'm sorry if I suggested that I think people should be punished for violations of the law "in principle, if not in fact." I didn't mean "people," I meant the President of the United States (considering he's about the only one who's in a position to violate our rights like this, anyway). Do you disagree that he should be held to a higher standard?

Posted by: ambimb at December 22, 2005 06:49 AM

For an impeachment proceeding? No. Oddly, I think one ought to be impeached if one violates what the law is, not if one violates its "principles" or even worse, the "spirit of the law." We're lawyers, not priests or shaman.

Posted by: A. Rickey at December 23, 2005 08:01 AM

Strictly sepaking, impeachment isn't a criminal remedy. It's way for democratically elected representatives to redress wrongdoing. In the impeachment context, "wrong" is not limited to simply criminal acts. Incompetence or malfeasance or a gross offense against those who elected you will do. I'd say this president has been guilty of all three at various times.

If he doesn't get impeached, I'd say it's only because most people in the country would rather not see it. But, if the people did want his scalp, they wouldn't have to wait for a crime to get it.

Posted by: marshall at December 27, 2005 11:33 AM

Discussing Kerr makes sense, but please don't give Althouse anymore credence than the drunk mumbling to herself on the street corner. She is about as reliably and reflexively pro-Bush as Instacracker. One has to marvel at the self-delusion inherent in either one of their claims to be independent. They both ascibe to the ideology of King George, which they ought to have the decency to admit.
At least Bainbridge admits he's a conservative. And, as much I tend to disagree with him, he's an honest conservative whose ideology is not based on hero-worship.

Posted by: justin at December 31, 2005 03:07 PM

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