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January 02, 2006

He Ain't The Law

I think that Chuck Schumer strikes at the heart of Snoopgate better than any other politician I've seen in this NY Times piece:

"A discussion, perhaps a change in the law," he said, "those are all legitimate. Unilaterally changing the law because the vice president or president thinks it's wrong, without discussing the change, that's not the American way."

And that's about it. Partisan Republicans would have you believe that the legal contention in this issue is over whether or not FISA was constitutional. If it is, what Bush did was illegal. If it isn't, one could make the argument. They argue the latter.

But here's the thing: FISA, currently, is the law. And it's not an incidental law with language that accidentally enlarges it to apply to this case. Congress passed it specifically to constrain executive authority over surveillance matter. Specifically to outlaw, well, this.

When Congress passes a law that certain groups think to be unconstitutional, there's a procedure worked out for pursuing resolution. It involves a handful of old dudes and a couple old women who wear long robes and issue complex legal opinions on constitutional matters. And until they rule one way or the other (or pass an injunction), the controversial legislation remains legally binding. That's why a member of NORML can't walk down the street smoking a spliff and a wingnut mayor in Mississippi can't prosecute women who have abortions. Laws are in effect until they are repealed or declared invalid by the Supreme Court. Whatever you think of FISA's legality, it was neither repealed nor declared invalid by the Supreme Court. It was in effect.

Bush's actions were illegal. And that's all there is to that. You can argue that they were justified, or righteous, or that the legislative structure is outmoded and wrong, but none of that changes the fact that they were in flagrant violation of the law of the land, a law the White House could have attempted to amend or asked the Supreme Court to invalidate. Which means that not only were Bush's actions illegal, but he offered no attempt to make them legal. It wasn't simply that he thought the law outdated, it's that he believed it didn't, and shouldn't, apply to him. As Duncan put it, Bush's position, summed up, is "I am the Law." And, frankly, it doesn't get much more unAmerican than that.

January 2, 2006 | Permalink

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» What He Said from Fiat Lux
Ezra: Bush's actions were illegal. And that's all there is to that. You can argue that they were justified, or righteous, or that the legislative structure is outmoded and wrong, but none of that changes the... [Read More]

Tracked on Jan 2, 2006 3:35:18 PM

» Ezra Klein: He Ain't The Law from Poor Richard's Anorak
Link: Ezra Klein: He Ain't The Law. [Read More]

Tracked on Jan 3, 2006 9:16:56 PM

Comments

Yes, but IOKIYAR. *rolls eyes in disgust*

Posted by: fiat lux | Jan 2, 2006 3:35:30 PM

Then again, please see this official statement: http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html

"The executive branch shall construe..in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.." and, "..to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus.."

Shorter GWB: l'etat c'est moi, bitches.

Posted by: wcw | Jan 2, 2006 4:04:24 PM

The only real question remaining is whether we will have a constitutional crisis when either the Congress or the Courts object to a dictatorial executive declaring that he is the law, or whether no crisis will occur and the death of our constitutional government 'of the people, by the people, and for the people' will have occured by the lack of objection.

Rome went from assembly to senate to dictator to caesar to the end over several centuries. The US appears to have shortened that cycle to two terms of fours each in the 21st century.

The original, and existing, US constitution said that the President should take care that the laws be faithfully executed. Now Bush asserts (in his signing statement on the defense appropriations bills, last Friday, that this really means that the President should take care that the laws be faithfully interpreted, by him, as executive, regardless of the Congress or the courts.

This is despotism.

Posted by: JimPortandOR | Jan 2, 2006 4:25:35 PM

"Shorter GWB: l'etat c'est moi, bitches"

No Ezra, you don't get to decide what the "law" is.
Nor does SCOTUS get to decide what the "law" is.

Payl Weyrich and Norquist were studying and using "The Little Red Book" thirty years ago. You don't get what the Bush administration accepts, domestically and in foreign affairs, what the truth is and has always been. At bottom, unless we agree to deceive ourselves, there is no "law" only power.

He who has the guns gets to decide what the "law" is.

Posted by: bob mcmanus | Jan 2, 2006 4:31:05 PM

I'm sure Republicans will be vigorously defending warrantless searches when President Hillary takes office. Or maybe... somehow they know, there will never be another Democratic president...

Posted by: Dwight | Jan 2, 2006 5:43:01 PM

You abide by the laws you have, not the laws you wish you had.

Posted by: Thlayli | Jan 2, 2006 7:58:15 PM

"The legislature's job is to write law. It's the executive branch's job to
interpret law." — George W. Bush, Austin, Texas, Nov. 22, 2000.

Perhaps this wasn't just a slip of the tongue after all?

Posted by: Julian Elson | Jan 3, 2006 1:56:27 AM

"when either the Congress or the Courts object to a dictatorial executive declaring that he is the law"

Yes? And WHEN are they going to object? You hear anyone objecting? Because I sure don't.

Gutless cowards, every one of them.

Posted by: Ric | Jan 3, 2006 7:42:56 AM


WASHINGTON, Jan. 3
- The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.

Posted by: Fred Jones | Jan 4, 2006 8:48:19 AM

"I'm sure Republicans will be vigorously defending warrantless searches when President Hillary takes office."

What about Bill?

WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order."

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

Secret searches of Aldrich Ames's office and home in June and October 1993, both without a federal warrant.

Warrantless searches authorized by Bill Clinton. I personally believe a search is more intrusive than a wiretap.

The fact that the Left is celebrating this leak and calling for impeachment A) will backfire cuz most Americans think what President Bush did is OK, and B) proves that Democrats are willing to put our national security at risk to hurt Bush.

Liberals are a bunch of children throwing a tantrum.


"Or maybe... somehow they know, there will never be another Democratic president..."

God willing.

Posted by: Captain Toke | Jan 4, 2006 12:19:18 PM

"Bush's actions were illegal. And that's all there is to that. You can argue that they were justified, or righteous, or that the legislative structure is outmoded and wrong, but none of that changes the fact that they were in flagrant violation of the law of the land, a law the White House could have attempted to amend or asked the Supreme Court to invalidate."

If that were the case he would be impeached over this because we know that congressional Republicans do not march in lockstep the way the Dems do. He won't be impeached. It is legal.

Bill Clinton authorized a warrantless search of a US citizen. Where is your outrage over that?

This just proves that liberals hate Bush and the number one objective of the Left is to denigrate Bush, national security and the law be damned.

Children throwing a tantrum.

Posted by: Captain Toke | Jan 4, 2006 1:43:43 PM

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Posted by: judy | Sep 29, 2007 11:43:58 AM

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