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 10:28 PM | Comments (6) | TrackBack | general politics