Take for example the recent performance of President Bushs new press secretary, Tony Snow. In a recent press briefing, Snow was fielding questions about the NSA gathering of Americans phone records.
Snow happily cited a quick poll indicating that almost two-thirds of Americans dont object to the government monitoring such records for the presumed purpose of catching terrorists. But when presented with other negative poll results, Snow declared that a president cannot base national security on poll numbers.
A reasonable statement, but, as the press should immediately have asked: Mr. Snow, can a president base on poll numbers his decision whether or not to obey the law? And would you be interested in seeing what the American people would say to pollsters if asked, Can the president do whatever he wants, regardless of the law?
And then theres Michael Haydens appearance last week at the Senate hearings regarding his confirmation to run the CIA. Hayden is the former head of the NSA, where he apparently conducted two surveillance programs, under orders from the Bush regime, that run afoul of a criminal statute governing surveillance on American soil, one of which is also in apparent violation of the 4th amendment to the Constitution.
At his hearing, however, General Hayden assured the Senators, and the nation: all this surveillance has been legal.
For one thing, General Hayden, how seriously should we take you as a legal authority after weve seen the video of you at the National Press Club? This is where, after declaring "if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth, you went on repeatedly to maintain that the Fourth Amendment says nothing about a search warrant requiring probable cause.
If this amendment is the part of the Constitution with which youre most familiar, and you seem to have overlooked the fact that two of the merely 54 words that comprise this amendment are the phrase probable cause, just how reassured should we be by your vouching for the legality of the surveillance programs youve been overseeing?
But perhaps youre not relying on your own legal knowledge in concluding that your surveillance programs have broken no laws. If so, General Hayden, where did you find a source reliable enough to give you confidence in this judgment. Has this administration ever been willing to put this question of legality before anyone whom the president cannot fire at will?
It seems not, if the recent disclosures from the telephone company, Qwest, are to be believed. They reported that the minions of the NSA were willing to bluster and intimidate, but not to fulfill Qwests request that the legality of the surveillance proposal be cleared with the FISA Court. According to the report in USA Today, the NSA refused because it recognized that the Court might not approve.
Indeed, it has been well-documented by Glenn Greenwald, an attorney who writes the blog, Uncharted Territory, that this administration while continually making claims about the legality of its conduct- has nonetheless repeatedly invoked every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.
Are your words of reassurance, then, anything more than another round of this regimes continual evocation of the just trust us approach to constitutional theory? Just trust us was the Bush regimes defense of its refusal to bring detainees before a court to be charged with specific offenses, backed up by evidence. And just trust us is what this administration demands when it declares that no innocent and ordinary Americans, but only suspected terrorists and their connections, are being wiretapped.
Actually, while probable cause is in the Constitution, nowhere in that document is trust us to be found. Indeed, trust us runs contrary to the whole spirit of Americas supreme law. If men were angels, wrote the Father of the Constitution, James Madison, wed have no need for a government to be put over the people, nor for a Constitution to govern those who govern. But as men are not angels, Madison set up a careful system of checks and balances as a bulwark against tyranny.
And indeed, the evidence suggests that the Bush regime has had good reasons for its systematic evasion of the constitutionally required scrutiny by the other branches of the government. A study group of the American Bar Association determined that the public record alone is sufficient to determine that the eavesdropping program uncovered last December is a clear criminal violation of the FISA statute. And Jonathan Turley, Professor of Constitutional Law at George Washington University, is just one of many legal experts who declare that the more recently disclosed surveillance program also violates federal law.
So, General Hayden, is there some reason we should take your assurances seriously? Do even you?
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