Why is it up to Russ Feingold to call for censure of the President (which really just amounts to an unconstitutional bill of attainder with no penalty) for using the military to tap our phones? Why is he all alone?
The entire Senate ought to be voting for a resolution calling for the House to hurry and pass up some articles of impeachment for them to convict and remove on. These folks are supposedly our representatives up there, and what do we get? A bunch of nothing. According to Craig Gilbert at the Milwaukee Journal Sentinel,
“In dismissing the notion of censure, some senators argue not that the wiretapping is necessarily legal, but that the question is unanswerable for now, either because too little is known about the program or because the courts haven’t put the big constitutional issues to rest. Chief among them: whether a 1978 law against warrantless domestic wiretapping is trumped by the president’s inherent constitutional powers as commander in chief.”
Now, Michael “I never recommended war to anyone” Ledeen may have read over at the Powerline blog that using the military to tap Americans’ phones without warrants is just as legal as can be, but the plain and simple language of the fourth amendment leaves no room for error: the executive may not search us without the consent of an independent judge, and then based only upon sworn testimony describing the probable cause to believe evidence of a crime will be found:
“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.”
The unconstitutional FISA law which gutted this amendment in the name of protecting it back in 1978 says that they can just go ahead and eavesdrop on you, as long as they let the judges know (rather than asking) within three days:
“(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”
There, you see, FISA is already unconstitutional on its face, but at least it makes going beyond it a serious offense.
Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. …
Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
So when George Bush gets up there in front of the microphone in defense of this spying and claims,
“As president and commander in chief, I have the constitutional responsibility and the constitutional authority to protect our country. Article 2 of the constitution gives me that responsibility and the authority necessary to fulfil it.”
He is doing nothing more than confess to multiple counts of a serious felony. His argument is as preposterous as the Federalist Society goofballs who told him to go out there to say it.
Nowhere in the Constitution is the president charged with “protecting the country.” Read Article Two. It’s not long. The President is the boss of departments created by congress. That’s it. His job is to enforce the laws they pass, and carry out the policies they create, not do anything he imagines might “protect” people.
Besides that, the amendments to the Constitution were just that: amendments: “Declaratory and Restrictive Clauses,” by the people, against the new government, “to prevent misconstruction or abuse of its powers.” This plainly means that the fourth amendment trumps all of Articles I-VII, no matter what they say.
And if the whole thing is okay the way it is, why does Senator Roberts want to change the law to make it legal?
Because it’s not.
Then again, if John “enemy combatant” Roberts and his pals on the Supreme Court disagree, then I guess the constitution just says whatever they say it does.
The old rule of law, which purportedly bound the powers of this government, is being crushed by the force of unlimited budgets, technology and secrecy – during “wartime.” Despite all this, largely due to overwhelming political illiteracy and gerrymandered districts, it seems likely that more than 90% of the House and Senators up for reelection this year are safe in their seats as America’s careening slide into tyranny continues.
Update: Make that 98, Harkin has signed on too. Thanks S.F.
Update II: Okay, Boxer has signed on too, but I still can’t stand her.