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Message Randolph Holhut
DUMMERSTON, Vt. President Bush and other members of his administration have been fanning out around the country this week in a public relations blitz to sell the nation on the idea that their campaign domestic surveillance (or, as they call it, their "terrorist surveillance program") is legal and necessary to national security.
The administration is trying to convince us, as they have for the past few weeks, that no laws were broken. They continue to push the idea that the post-9/11 world means that there is no time for legal niceties such as warrants and court orders. If the president says something needs to be done, it needs to be done.
They keep saying this over and over, as if by sheer repetition, they can convince people that they did nothing wrong.
However, it doesn't matter how many times they say they didn't break the law.
It doesn't matter, because they are all lying.
This fact is indisputable: the Bush administration has repeatedly violated the Fourth Amendment, which clearly states "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In other words, if you are going to search or spy on someone, you have to have to convince a court that you have probable cause to do so before you can get a warrant.
The Foreign Intelligence Services Act (FISA) gives the Bush administration all the power it needs to spy on terror suspects. All it has to do is go to the secret FISA court and request a warrant. The law even gives the government a full 72 hours to ask for a warrant, allowing it to spy first and seek a warrant later if time is of the essence.
The FISA court has approved all but four of the more than 10,000 warrant requests presented to it since 1978, so the bar of legality is set extremely low.
So, if the FISA law is so easy to comply with, why did the Bush administration brazenly violate that law? Because Bush is claiming the right as commander-in-chief to violate any U.S. law on the grounds of national security.
The Bush administration is also claiming a different standard than the Fourth Amendment. They have ordered surveillance based upon "reasonable belief," rather than probable cause. In other words, if they reasonably believe a person has ties to al-Qaida, they have the right to spy on them. They don't need to show probable cause, which remains the accepted standard in a court of law.
This is tenuous legal ground. The Supreme Court has never granted any president the right to warrantless wiretaps, and certainly not wiretapping based upon a "reasonable belief" that illegal activity is going on.
The Supreme Court has never given a president total and unilateral authority to act against U.S. citizens in a way that violates U.S. laws, in wartime or any other time. The president is legally bound by the Constitution. That document's checks and balance don't disappear because there is a war and the president's role as commander-in-chief does not trump Congressional power or the Bill of Rights.
Bush claims the right to warrantless spying based upon a Congressional resolution passed shortly after the Sept. 11, 2001, terror attacks called the Authorization to Use Military Force.
Again, this is a lie.
That 2001 bill authorized the use of force against al-Qaida and the Taliban in Afghanistan. It made no mention of wiretaps or surveillance. While the Bush administration at the time sought to include language broadening its warmaking powers to include domestic surveillance activity, Congress wisely rejected it.
That did not deter the Bush administration. It decided after 9/11 that if Congress was not going to grant it expanded powers, Bush was going to claim them anyway. That's how we got to the place we are now, where we have a president who firmly believes that the rule of law does not apply to him.
The foundation of our democracy the separation of powers between the three branches of government is now hanging in the balance. When the executive branch can claim unlimited power on the say-so of a president, there is no need for the legislative or judicial branches, especially when those two branches are also under the ruling party's control.
This is a critically important issue that must be honestly and fully investigated. Is the president bound by the laws of our nation, or is the president not only above the law, he is the law?
If Congress fails to investigate and if the courts back the Bush view of executive power, all bets are off regarding the future of our democracy.
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Randolph T. Holhut has been a journalist in New England for more than 25 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at
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