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Message Stuart Steinberg
Once, a long time ago, a famous, patriotic American""Popeye the Sailorman""said, "I can't stans no more!!" I remember thinking like Popeye when Nixon was president after all those times he tried to steal the constitution and was almost successful. There was that illegal war the CIA didn't run in Laos. Then there was that illegal bombing of Cambodia. And who could forget the illegal eavesdropping and domestic surveillance he ordered the FBI to conduct on US citizens who were against the war in Vietnam. Yeah, that FBI"the one headed up by that fat guy in the dress. And, oh yeah, the previous all time great"Watergate. Who would have ever thought that could be topped?

If you had told me after all of that, that some day, a greater president"one with real vision"would come up with a greater string of illegal, unconstitutional acts, I would have said, "Shut up!! Not even!! Whatever, dude!!." But, lo and behold, just in time for ChristmaHannuKwanza, we have"BushTap. It's these modern illegalities that I can't stans no more and the Congress must fulfill its constitutional duty to charge Bush with the "high crimes and misdemeanors" he committed, purportedly in the name of national security, and impeach his sorry ass.

I could go on and on about whether the Iraq War is legal, but the truth is, from a constitutional standpoint, it might be. Yes, after 9/11, Congress basically gave its balls to the President in the complete sellout of their positions as our representatives, so you really can't blame Bush for that. I mean, the guy did say, "Hey, give me permission to go to war against terrorists and Saddam Hussein," and the House and Senate were falling all over themselves, mewling, "Go, George, go!! We're as patriotic as you!!" And go, he did. Or is. And, no doubt, will continue, despite the laws and the constitution.

Then there's the lies. There was the whole uranium thing; the WMD thing; the Saddam/Al Qaeda thing. I mean, these guys really have that "never let the facts stand in the way of the truth" thing down pat. Not just about some things, but, let's face it, this guy lies about virtually everything. Okay, he apparently told the truth about the NSA spying on US citizens and probably some legal resident aliens, as well. And, if you can still believe anything that comes out of the White House, the Congress, at least the intelligence committees, sent their pubic hair along this time, because some of them""Democrats, too""knew about the NSA spying and said nothing. But even in telling the truth, or some of it, anyway, the Bush crowd still has to lie about the details.

First, is the lie that a presidential order to the NSA to eavesdrop on US citizens and legal resident aliens, without any imitations, is both legal and constitutional. These sycophants really seem to believe, apparently, that Goebbals was right, "If you lie about something enough, it becomes the truth." Any fair reading of the Foreign Intelligence Surveillance Act""the plain meaning of the words, as the courts put it when interpreting a statute""makes it perfectly clear that the NSA spying on US citizens and legal resident aliens is just flatly prohibited without an order from the FISA court. These guys know this is true and, yet, they lie anyway. I actually think that they believe that if they tell this lie enough, some court, when this is eventually litigated, will go, "Yeah. You're right. Even though the statutory language is plain in its simple terms, I am ignoring that because George Bush says I'm wrong and, therefore, it must be true." In reality, this will not happen and they probably know that, too. Yet, the lies continue to spew from 1600 Pennsylvania Avenue and I understand they just beefed up the sewage system because of the inordinate recent amount of complete cow dung they've been shoveling to the American people.

Second, the FISA makes it clear that the president, adhering to statutory requirements, can, in fact, bypass the FISA court and authorize certain eavesdropping without an order from the FISA court. But, guess what? The statute states that the president and attorney general can only do this so long as they certify that no "United States person" will be a party to the surveillance. "United States" person is defined as any citizen, legal resident alien and various corporate entities. They have to swear under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party-- More importantly, even if they can order the eavesdropping due to a true emergency, they still have to seek a warrant within seventy-two hours from the FISA court. In all other cases, the definitions contained in the first section of FISA make it mandatory that if a US citizen or legal resident alien is acting as an "agent of a foreign power" within the United States, they must seek a FISA court order prior to beginning such surveillance.

Notice the word, "any." What the statute plainly states is that no surveillance can be done by the NSA of a US citizen or legal resident alien in regard to any"that's any"communication, without a warrant. Which would include these folks' communications with a foreign person, government or organizations, even the bad ones. Remember, I didn't write this law, but it says what it says and you cannot dispute that it says that by crying, "National Security." Or, "It's after 9/11." Or the best one yet, "I'm going to do everything I can to protect Americans as long as I'm President." Now, if he had just let an intern blow him while authorizing these illegal acts, the impeachment thing would presumably be in high gear.

George Bush and Alberto Gonzalez know what this law states. They also know that it is stated in plain, simple, everyday language. And Gonzalez presumably knows what the basic rule of statutory interpretation is: you read the words and apply their plain meaning; you do not read anything into them and you only resort to the legislative history when the words are ambiguous. And it could be that Gonzalez is as much an ignoramus as the President"but, I doubt it. He's just another brown-nosing suckup and, based upon the drivel considered to be his legal writings, he might actually believe that in a time of war, the President can suspend the constitution. After all, no less an arbiter than the US Supreme Court approved the presidential concentration camps during WW II, when US citizens were locked up because of their ethnic origins.

Bush and Gonzalez are, no doubt, counting on their soon-to-be lunatic, right wing juggernaut court to make a similar ruling when the NSA case gets there. And there is absolutely no doubt that this case will end up before the Roberts Court. I hope, however, that the Roberts Court""even with the probable addition of Judge Alito""will not agree that the President has inherent powers to ignore the constitution and clearly spelled out federal laws. On the other hand, Bush recently stated that the constitution was "just a piece of goddamn paper," a fact that has been confirmed by several anonymous sources in attendance when the statement was made.
I may be an idiot, but I believe that not even the Roberts Court will agreee with Bush's and Gonzalez' claim of the president's unlimited power during a time of war.

Finally, the fact that Bush and Gonzalez are fully aware of the basic illegal and unconstitutional nature of their acts is borne out by their recent arguments regarding the President's "inherent authority" to carry out warrantless eavesdropping on US citizens and legal resident aliens. First, they claim that under the Congressional resolution authorizing the war on terrorism, the words "use of military force" include actions such as the warrantless eavesdropping program. Once again, the plain meaning of those words, and even the Congress' intent, belie any such claim.

To date, not a single member of the Congress has said that they intended the war on terrorism resolution to include the NSA program, or any program to conduct warrantless searches on US citizens and legal resident aliens. Secondly, the claim that as Commander-in-Chief Bush has inherent authority to suspend the constitution during a time of war is just plain baloney. Nixon tried making the same arguments in relation to warrantless surveillance during the Vietnam War""in the name of national security""and was soundly rejected by the US Supreme Court in United States v. United States District Court, 407 US 297 (1972). Moreover, the FISA makes it clear that only when there has been a formal "declaration of war by the Congress" can the president conduct warrantless searches. Even then, it must only be for the purpose of gathering "foreign intelligence information" and for no longer than fifteen days without seeking a court order.

In the 1972 case, the Court ruled that "the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security-- Mitchell v. Forsyth, 472 US 511, 514-515 (1985). In Mitchell, the Court held that federal officials who violate the Fourth Amendment by ordering illegal wiretaps do not have absolute immunity from damage actions. In fact, the Court specifically ruled that the 1972 case "finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security." 472 US at 535. It is, therefore, inherently clear that Bush violated the constitution, and the FISA, when he ordered warrantless eavesdropping on US citizens. Doing so was a federal crime""a felony""pursuant to Section 1809(a) of the FISA. Thus, Bush has clearly committed an impeachable offense but I have little faith that the Republican-controlled Congress will perform as required by the same constitution that Bush violated. They are just another bunch of cretins the rest of us are going to have to deal with in the November 2006 elections.
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Stu Steinberg is a retired public defender, law school educator and capital defense investigator. He served for eighteen months in Vietnam as an explosive ordnance disposal specialist and was decorated for heroism, meritorious achievement in combat, (more...)
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